SSVJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1720
•19 May 2023
SSVJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1720 (19 May 2023)
Division:GENERAL DIVISION
File Number(s): 2023/0993
Re:SSVJ
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:19 May 2023
Date of written reasons: 20 June 2023
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 26 October 2022, not to revoke the mandatory cancellation of the Applicant’s Refugee Visa (Class XB Subclass 200). In substitution, the Tribunal decides that the cancellation of the said visa is revoked.
................[SGD]............................................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958 (Cth), subsection 501CA(4) – Direction No. 99 – sexual offences – country of return – non-refoulement – South Sudan or Sudan – protection of the Australian community – strength, nature and duration of ties to Australia – expectations of the Australian community – impact on victims – decision set aside.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 197C, 198, 501, 501CACASES
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179; 287 FCR 581
Kesavarajah (1994) 74 A Crim R 100
NBMZ v Minister for Immigration & Border Protection [2014] FCAFC 38
Presser [1958] VR 45
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273
Taulahi v Minister for Immigration & Border Protection [2016 246 FCR 146
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
ZCGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4660SECONDARY MATERIALS
Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
20 June 2023
On 25 April 2007, SSVJ (the applicant) was granted a Refugee Visa (Class XB Subclass 200) (the visa) under the Migration Act 1958 (Cth) (the Act).[1]
[1] TB6, 189.
On 28 March 2018, he was arrested on three counts of aggravated sexual assault, contrary to section 61J of the Crimes Act 1900 (NSW), an offence punishable by a maximum of twenty years imprisonment. He was remanded in custody and refused bail. On 13 February 2020, he was convicted by the Goulburn District Court of New South Wales and sentenced to an aggregate sentence of six years imprisonment with a non-parole period of three years and eight months.
His visa was cancelled on 7 May 2020,[2] and on 26 October 2022 a delegate of the Minister decided not to revoke the cancellation decision (the reviewable decision). He then applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
[2] G18, 87.
On 19 May 2023, the Tribunal set aside the reviewable decision, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth). In substitution, the Tribunal decided to revoke the cancellation of the visa, with written reasons to be provided within a reasonable time. I now provide my written reasons.
PROCEDURAL HISTORY
The procedural history of this matter is somewhat convoluted. On 7 May 2020, the Minister’s department (the Department) notified the applicant that his visa had been cancelled under subsection 501(3A) of the Act and invited him to make representations about revocation.[3] For technical legal reasons, the Department re-issued the cancellation notice on 13 January 2022.[4]
[3] G18, 87.
[4] G19, 94.
On 20 January 2022, the applicant made representations seeking revocation and provided further evidence.[5]
[5] G12-G17.
On 26 October 2022, a delegate of the Minister made the reviewable decision not to revoke the visa cancellation decision. The applicant was notified of that decision on 27 October 2022, and on 3 November 2022, he sought review in the Tribunal (2022/8969).
On 29 December 2022, he was released from immigration detention following the decision of the Full Court of the Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson). The Department’s decision to cancel the applicant’s visa was deemed to be invalid, and as a result, the applicant’s visa was reinstated.
On 4 January 2023, the Tribunal decided it had no jurisdiction to review the Minister’s non-revocation decision because the applicant’s visa had been reinstated and the review application was dismissed.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (Aggregate Sentences Act) came into effect. On the same day, a delegate of the Minister notified the applicant that, because of the Aggregate Sentences Act, the decision of 7 May 2020 to cancel the applicant’s visa remained valid and he no longer held a valid visa. That letter enclosed the non-revocation decision and reasons for decision of 26 October 2022. The applicant was also notified that he had until 26 February 2023 to seek review of the visa cancellation decision.[6]
[6] G3-G6.
On 21 February 2023, the applicant lodged an application for review in the Tribunal.[7]
[7] G1/1.
BACKGROUND
According to a report of the United Nations High Commissioner for Refugees (UNHCR) dated 8 April 2006, SSVJ was born in what is now South Sudan.[8] Government troops attacked his village in 1995. His parents were at a clinic where they worked as orderlies. He was at home with his brother and two sisters. He was shot in the leg, and his siblings were shot dead as they fled. He escaped with his twin brother. They were seven years old. An unrelated elderly woman carried him on her back on a week-long trek across the border to the Fugnido Refugee Camp in Ethiopia, where he received medical treatment and was informed that his mother and father had been killed. He was recognised as an unaccompanied child refugee by authorities in Ethiopia and the UNHCR. He lived at the refugee camp and the woman who carried him became his permanent caregiver. He attended school and ran errands. But his tribulations were far from over. In 2002, the Refugee Camp was attacked by militants. His twin brother and caregiver were killed in the attack.[9] He sheltered in a protected compound and after several weeks was taken to another refugee camp. He was then ‘completely alone and without any family members at 14 years of age’.[10] Moreover, after the massacre, he struggled emotionally and did not feel that he had the ability to concentrate on school.[11]
[8] TB7, 191 197.
[9] TB7, 197. In dealing with his protection visa claim, the delegate did not accept that he had been a child soldier in Ethiopia or Sudan, or that he had a twin brother who was killed in the refugee camp massacre.
[10] TB7, 197.
[11] Ibid.
According to the Document for travel to Australia issued on 18 December 2006, he was born in 1988 in Akobo, in southern Sudan, when the region was still part of Sudan. His home village is about 5 miles from the Ethiopian border.[12] Akobo was part of Sudan when he was born.[13] The Australian government identifies his country of citizenship as South Sudan.
[12] TB7, 192.
[13] Some discrepancies in his DOB - 01/01/1988 (TB6, 189); 31/12/1988 (TB5, 179).
On 25 April 2007, he arrived in Sydney.[14] He was 18 years old with only a few years of schooling. He spoke broken English and had, and continues to have, difficulty reading.
[14] TB7, 189.
He received supported accommodation in Blacktown but does not appear to have received any special trauma counselling. Both in Blacktown and Queanbeyan, where he later moved, he became known to police due to his excessive drinking. I am struck by the kindnesses showed to him by police, who often provided him a safe place to sober up, and sometimes drove him home.[15]
[15] TB1, 35, 38.
In 2010, he moved to a difficult neighbourhood in Queanbeyan, where he struggled to find acceptance. He was beaten up on at least one occasion to the point of needing hospitalisation. He continued to drink. His flat was burgled.
He did, however, have the good fortune to meet DS and her daughter TB. He was doing some contract work for them and when they discovered his circumstances, they extended the hand of friendship. They went to great lengths to support him. He was included in their family and special occasions, taught him to drive, and DS bought him a car.
On 28 March 2018, he was charged with the offences that led to his visa cancellation. He was denied bail and remanded in custody. Dr R. Furst, consultant forensic psychiatrist, recommended that he was fit to plead.[16]
[16] Psychiatric Report, Dr Richard Furst, MBBS, M Crim, FRANZCP, Consultant Forensic Psychiatrist: TB3, 105.
On 13 February 2020, he pleaded guilty and was convicted in the Goulburn District Court of New South Wales of three counts of aggravated sexual assault. He pleaded guilty, somewhat belatedly, and received a 15% sentencing discount.[17] He was represented by counsel.
[17] Report dated 19 June 2019: G9, 37.
THE HEARING
The application was heard by the Tribunal on 26, 27 April 2023 and 4 May 2023.
The applicant was self-represented. The respondent was represented by Mr C. Burke, of Sparke Helmore Lawyers.
The following material was submitted to the Tribunal.
(a)Applicant’s materials:
(i)Undated statement by applicant filed 21 April 2023
(ii)Statutory declaration of Diane Shepherd dated 9 December 2022
(iii)Statutory declaration of Tania Black dated 7 December 2022 and 22 February 2023
(iv)Statutory declaration of Samuel Kwesi Ansar (Bishop Sam) dated 9 December 2022
(v)Various certificates undertaken whilst in prison (see below);
(b)Respondent’s written submissions:
(i)Statement of Facts, Issues and Contentions (RSFIC) dated 12 April 2023
(ii)Further Submissions on Legal Consequences dated 27 April 2023
(iii)Closing Written Submissions dated 3 May 2023
(c)Respondent’s materials:
(i)Respondent’s Tender Bundle (TB) (252 pages)
(d)Other:
(i)Documents filed under section 501G of the Act (the G Docs) (150 pages)
The applicant appeared by videoconference from the Villawood Immigration Detention Centre.
A PRELIMINARY MATTER
On 20 January 2022, in collateral proceedings, the applicant applied for a protection visa (PV). On 28 February 2023, his application was refused. This refusal is the subject of a separate application for review to the Tribunal, to be heard by a different Tribunal member on 3-4 July 2023 (2023/1631).
The PV Decision Record was provided to the Tribunal in these proceedings, and I consulted it in preparing for the hearing.[18] The delegate was satisfied, on reasonable grounds, that the applicant, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. The criterion contained in paragraph 36(1A)(a) of the Act was therefore not satisfied. Importantly, the delegate was satisfied that protection obligations were owed to the applicant, as provided for in paragraph 36(2)(a).[19]
[18] TB7. The Tribunal was provided with the full 63-page decision of the different delegate rejecting the PV application. This was done for the purpose of establishing that the applicant was a person in respect of whom protection obligations were owed.
[19] TB7, 218.
Given the proximity of these cognate proceedings, I asked Mr Burke why the matters should not be heard together. I was concerned about the possibility of inconsistent findings of fact and ensuing legal complexity. After taking instructions, Mr Burke indicated that the Respondent was firmly opposed to such a course, pointing to the different legal questions involved in each case.
Under subsection 501CA(4), the question is whether there ‘is another reason’ why the original decision should be revoked, even if the applicant does not pass the character test.[20] The question is essentially normative, that is, whether the original decision should be revoked even though an applicant fails the character test.
[20] Subsection 501CA(4)(b)(ii).
In the other case, the criteria for the grant of a protection visa are necessary conditions, one relating to persons convicted of a ‘particularly serious offence’. If such a person is found, on reasonable grounds, to be danger to the Australian community, the criterion is not satisfied, and the person is not entitled to a protection visa. This is not a discretionary, or normative, decision.
Nevertheless, given the common body of evidence in the two matters, I remain concerned about the bifurcated approach. Consolidation has the merit of avoiding duplication and harnessing scarce resources. There is clearly a degree of interconnectedness and a significant overlap in the evidence to be considered in each case. For example, under the Protection Visa Processing Guidelines,[21] the relevant Direction applicable to revocation matters (now Direction No. 99) may be used to assess the nature and relative seriousness of the applicant’s offending. In these proceedings, the Tribunal will be covering the same ground. I do, however, note that in a revocation case, the Tribunal must consider multiple factors in deciding whether there is ‘another reason’ why the decision should be set aside. The protection of the community is one relevant and very important primary consideration, and will often be decisive, but it is not decisive in every case.
[21] Part 3.60.5.
In view of the Respondent’s strong opposition to hearing the matter together, I decided to proceed.
FINDING ON CHARACTER TEST
For the purposes of the character test, a person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’.[22] A person does not pass the character test if they have a substantial criminal record.[23]
[22] Paragraph 501(7)(c).
[23] Subsection 501(6).
The Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because they have a substantial criminal record as defined.[24]
[24] Subsection 501(3A).
According to the Nationally Coordinated Criminal History Check Report provided by the Australian Criminal Intelligence Commission[25] dated 9 April 2020, the applicant was sentenced in the Goulburn District Court of New South Wales on 13 February 2020 to an aggregate sentence of three years imprisonment with a non-parole period of six years and eight months, for three sexual offences against an adult with a mental impairment, as outlined in the Introduction.
[25] G7, 28.
Any doubt as to whether the aggregate sentence was a ‘sentence’ for the purposes of section 501(7)(c), was removed with retrospective application by the Aggregate Sentences Act, which came into effect on 17 February 2023.
The applicant does not dispute the information contained in the ACIC record.
I therefore find that the applicant does not pass the character test.
THE ISSUE
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
On 20 January 2022, the applicant made representations seeking revocation and provided further evidence.[26]
[26] G12 to G17.
The sole issue for the Tribunal is whether there is ‘another reason’ why the original decision should be revoked.
EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Under section 499 of the Act, the Minister may give written directions to a decision-maker about the performance of its functions and exercise of its powers. The Tribunal is required to comply with such directions.[27] Direction No. 99 (the Direction) was made under this section and commenced on 3 March 2023.[28]
[27] Subsection 499(2A).
[28] Direction no. 99 –Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Part 1 of the Direction includes a series of principles which provide a framework within which the Tribunal should approach its task. Given that the applicant is a long-term resident of Australia, and the nature of his offending, three of the principles are especially relevant. Paragraph 5.2 provides:
(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.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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 measureable risk of causing physical harm to the Australian community.
The Direction provides a framework for decision-making but must be read subject to the Act itself, and especially subparagraph 501CA(4)(b)(ii), which requires the Tribunal to consider whether there is ‘another reason why the decision should be revoked’. The duty of the Tribunal to consider whether there is such a reason applies in all cases where a person fails the character test, regardless of the nature of the offending.
Part 2 of the Direction is entitled ‘Making a Decision’. Informed by the principles in paragraph 5.2, a decision-maker must consider the considerations identified in sections 8 and 9, where relevant to the decision. Section 8 identifies five ‘primary’ considerations, and section 9 identifies four ‘other’ considerations. These are considered in detail below. The Direction also contains guidance on the weighing of various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct: paragraph 8.1.1
The applicant was cross-examined at length about his entire criminal record. He was taken through each of the offences in his criminal record in some detail.[29] This was a painstaking process, due to the applicant’s lack of fluency in English, and his general lack of education. He did not, for example, have the capacity to read any of the documents and his lack of legal representation placed him in an invidious position. Understandably, his emotional state was at time fractious, and other times brittle.
[29] Transcript, 27 April 2023, 51 et seq.
The applicant’s first reported encounter with police occurred on 6 December 2007, within eight months of arriving in Australia.[30] The Police note relating to this incident is heavily redacted and the sequence of events is not entirely clear. It appears that the applicant came home drunk and had an argument with his flatmate, a refugee from Ethiopia, which became physical. The police attended the flat but took no action because the applicant was asleep. In the morning, the applicant and his flatmate had another altercation, and the flatmate attended the police station and made a complaint, and a Provisional Apprehended Domestic Violence Order was granted by the magistrate.
[30] TB5, 188.
The police returned mid-morning and found the applicant locked out of his flat. He was arrested and taken to Blacktown police station, where he was interviewed, although with some difficulty because his English was very poor. The services of an Arabic interpreter were obtained by telephone. The applicant admitted to pushing his flatmate and slapping his face, but no more.
He was cross examined by Mr Burke about this incident. He admitted slapping his flatmate in the evening but denied that he hit him in the morning. He said that did not happen.
He was convicted on 25 June 2008 by the Blacktown Local Court of common assault and sentenced to a 12-month good behaviour bond.[31]
[31] G7, 31: H121737795.
A Community Offender Services Probation and Parole Service Pre-Sentence Report dated 26 June 2008 states:
In relation to the offence dated 6 December 2007 [SSVJ] admitted that he 'slapped' the victim as detailed, however denied that he had scratched him. Further he claimed that he did not ‘squeeze the throat of the victim’ or take ‘hold of the victim around the throat’ as outlined. The offender admitted that prior to the incident he had consumed alcohol. He claimed that he could not recall the quantity consumed, commenting however that he had drunk ‘too much’. The offender claimed that he reacted as outlined as he was angry following a disagreement in respect to money and household chores.[32]
[32] TB5, 179, at 181.
On 14 December 2007 he was asked to leave a pub in Blacktown because of his high level of intoxication. He was still 18 years old. He was charged with refusing to quit premises and assault.[33] The Police Notes of this incident states:
The accused complied with this request and left the premises. The accused has loitered outside the premises for a short period of time.
At this time the Duty Manager has remained at the front of the premises observing the accused. The accused has thrown a glass beer bottle on the ground outside the main entrance to the Town Tavern. The Duty Manager has returned inside the premises to obtain entrance to the Town Tavern. The Duty Manager has returned inside the premises to obtain something to clean up the glass. At this time the accused has picked up half of a broken beer bottle and entered the premises of the Town Tavern. The accused has approached the bar holding the broken glass bottle with an out-stretched arm towards the victim, [RG] who was standing behind the bar... The accused said, "I want VB, give me VB."
The victim has replied "No. Hand it over." The victim has reached for the broken bottle and the accused has released his grip, handing it to the victim... The accused has then left the premises however remained outside yelling and being a nuisance. Police attended the premises a short time later and attempted to speak to the accused. The accused was unsteady on his feet and continually spoke over Police. Police obtained the accused's details from papers within his backpack and requested that his friends take him home... Police then had a conversation with the Duty Manager who disclosed the assault. Police viewed the CCTV footage which confirmed the above details and clearly shows the accused holding the broken bottle and motioning it towards the victim behind the bar. .. The accused was issued with a Future Court Attendance Notice for the matter before the court.[34]
[33] G7, 31: H 31967215.
[34] TB5, 178.
The Pre-Sentence Report noted:
[SSVJ] is a nineteen year old male who leases independent accommodation in Blacktown. The offender informed that he was born in Sudan and that his parents were killed in an air raid attack when he was a baby, He recalled that he was 'found' by a lady who became his guardian and they relocated to Ethiopia were they resided in a refugee camp. According to [SSVJ] his guardian passed away when he was aged seven years and within a short period he joined an ‘army’.
Contact with a counsellor at a migrant resource agency that the offender has historically engaged with, explained that young people in similar situations are commonly referred to as ‘child soldiers'. Further, that in many instances, young people are ‘kidnapped’ and forced to remain in this environment. [SSVJ] was insistent that he was not kidnapped and that he wanted to join the army so that he could be ‘taken care of and taught ‘discipline’.
The offender outlined that he traveled with this ‘army’ to a number of locations and that he was eventually taken to a ‘training camp' based in Kenya. When questioned, [SSVJ] admitted that he had witnessed many ‘terrible’ events in this environment. Whilst admitting that this including killings and exposure to fighting and gun battle, he indicated that he did not want to discuss this memory in extensive detail. The offender admitted however that if he did not comply with directions he would be ‘disciplined’ and punishments such as ‘lashings' and being ’dunked in water' occurred. The aforementioned counsellor informed that many child soldiers are forced to undertake duties that at the very least would rob most children of their innocence.
[SSVJ] detailed that he left this environment after he was shot in the leg and spent time in the camp hospital. He stated that he returned to a refugee camp in Ethiopia at which time he applied to immigrate to Australia.
The offender arrived in Australia twelve months ago, he does not have any family here and on arrival knew one person, who has since relocated to Canberra. [SSVJ] was referred to the aforementioned migrant resource agency service upon arrival and they assisted him with settlement issues. It has been verified that his file with the ‘short term intervention team’ closed in April 2008, however as detailed below, further services within this agency are available to the offender.
[SSVJ] also has a caseworker from another support agency who accompanied him to both interviews for this assessment and appears to assist with daily needs that may present. This case worker has advised that he is unclear how much longer [SSVJ]’s file will remain open with that agency, however that a need appears to exist for the offender to remain in contact with a service provider who will be able to assist and guide him.
…
Attitude to the Offences
The Police facts relating to both incidents currently before Court were read to [SSVJ] and his recollection of the events appears to differ from the information outlined.
In respect to the offences dated 22 November 2007 the offender recalled that prior to entering the Tavern he had consumed 'three longnecks of beer and one 300 ml bottle of spirits’ at a different location. [SSVJ] claimed that whilst standing out the front of the Tavern he had dropped a bottle of beer that had been in his bag. He stated that he walked into the Tavern and held this bottle 'with an outstretched arm towards the victim’ as detailed in the facts, as he wanted the staff member to understand that he wanted another bottle of beer. The offender insisted that he was not 'yelling and being a nuisance’ prior to Police arriving…
[SSVJ] conceded that he may benefit from intervention focussing on anger management.
[SSVJ] is a nineteen year old male who presently resides in Blacktown in independent accommodation. External enquiries verify that from a young age the offender has been exposed to a number of traumatic circumstances, initially losing both of his parents in an air raid attack, followed by his guardian passing away when he was still a child. Of most concern is the probable exposure to death, killings and torture that frequently exists within environments where 'child soldiers' are raised. Whilst the offender was insistent that there is no residual affect in respect to his mental health as a result, support services that he has accessed have identified a need for on going counselling and support.[35]
[35] TB5, 179-181.
He was assessed by Community Corrections as unsuitable for Periodic Detention because of concerns relating to his mental health. The Report noted that:
No Psychological information has been made available to this Service asserting that he does not experience on going difficulties as a result of exposure to incidents as a child. As such it is unclear what affect the custodial environment will have on [SSVJ].[36]
[36] TB5, 183.
He was convicted on 25 June 2008 by the Blacktown Local Court of refusing to quit premises and assault.[37] For common assault he was sentenced to a good behaviour bond with 12 months supervision. For failing to quit the premises he was sentenced to conviction with no other penalty.[38]
[37] G7, 31: H31967215.
[38] G7, 31: H31967215: S10A.
Police notes record an incident on 1 February 2009. According to the notes, the applicant was visiting a female friend’s home. There were two other people present. He was drunk and argumentative. He allegedly slapped and punched his friend and smashed a plate on the back of her head. Her friends dragged her away from him into the bedroom, but he broke in and dragged her out and continued to beat her. He then picked up a knife and pointed the blade at her stomach. Her friends took the knife away and hid it from him. At some point she fainted. Her friends helped her from the flat, but he followed and pushed her down the stairs. He yelled, ‘I’ll bash you’. The police were called and witnessed him still holding the knife. He was then arrested, handcuffed, and conveyed to the police station. He was not interviewed because of his high level of intoxication. He was refused bail. The victim was conveyed to Canterbury Hospital but against the advice of a nurse, left without getting treatment.
On 2 February 2009, he was charged with five serious offences, being custody of a knife in a public place, assault occasioning actual bodily harm, two counts of common assault, and being armed with an intent to commit an indictable offence. On 8 May 2009, before the Burwood Local Court, the police offered no evidence on any of the charges except the charge relating to custody of a knife in a public place. This charge was dismissed, pursuant to section 10 of the Crimes Sentencing Procedure Act 1999 (NSW).[39] The applicant was cross-examined by Mr Burke about this incident. He categorically denied that he had assaulted the alleged victim or held a knife. Given that no evidence was offered to the magistrate, I make no adverse finding in relation to this incident.
[39] A sentencing officer applying this disposition is required to have regard to the following factors: (a) the person's character, antecedents, age, health and mental condition; (b) the trivial nature of the offence, (c) the extenuating circumstances in which the offence was committed, and (d) any other matter that the court thinks proper to consider.
On 28 May 2009, the police records record that he was heavily intoxicated just after midnight at Westpoint Blacktown. Police were called and after obtaining his address, took him home. He threw up in the caged police van but was feeling better by the time he got home. He thanked police and walked up the driveway.[40]
[40] TB1, 38.
On 3 January 2010, he was observed by police in the early hours outside a hotel in Surry Hills. Police thought he might be dealing drugs and apprehended him. He was searched and nothing was found. The police file note states, somewhat speciously in my opinion, that he ‘has a long history of violent crime’.[41]
[41] TB1, 38.
Sometime in 2010 he moved to Queanbeyan. There are multiple incidents recorded in the police notes for 2011. On 12 March 2011, just before midnight, police on patrol saw him acting in ‘an evasive manner’. He was stopped and searched and nothing incriminating was found. He accused the police of acting in a racist way and picking on him due to his skin colour. He was told to move on.[42] On 9 April 2011, he was drinking with a neighbour and an argument arose about alcohol. The police were called but neither party wanted any action taken.[43] On 21 September 2011, the applicant called police at about 2:00 pm due to a neighbourhood dispute about music noise. Due to his argumentative and aggressive attitude he was arrested and removed but returned home later that evening when he was sober.[44] On 4 and 15 October 2011, his apartment was damaged, a hole being ripped in the screen door. On the second occasion he was subject to a racist taunt by someone running away.[45]
[42] TB1, 38.
[43] TB1, 37.
[44] TB1, 37.
[45] TB1, 36.
2012 also attracted several entries. On 21 January 2012, another neighbourhood incident caused by loud music led to police involvement and he was found in possession of a small quantity of cannabis and a bong.[46] At around 1:00 am on 26 January 2012, he was making a drunken disturbance at his unit. The police came and arrested him, escorted him to the cells where he slept it off. He was released at about 2:00 pm.[47] Later the same day, he was the subject of a complaint during Australia Day festivities. An African family became uncomfortable with his intoxicated behaviour. Someone called the police, and he was given a move on direction. He was given a lift home by police to comply with the direction.[48]
[46] TB1, 36.
[47] TB1, 35.
[48] TB1, 35.
On 16 April 2012, there was another incident, this time involving a friend. The applicant was drunk and tried to gain access to his friend’s apartment, but he was not welcome. He then broke a window with his fist, cutting himself, and then left. He was arrested at his unit, taken to the police station but later released with an infringement number.[49] On 15 June 2012, he was badly assaulted outside his unit. He was taken to hospital in an ambulance and treated for serious injuries.[50] He was unable to identify the culprits. On 29 June 2012, his keys and a USB were stolen.[51]
[49] TB1, 34.
[50] TB1, 33.
[51] TB1, 33.
On 2 November 2012, police were called to the apartments where the applicant and another person were play fighting. No charges were laid.[52] He was arrested under similar circumstances the following day and again released. [53] On 8 November 2012, he was arrested at his unit for drunkenness and taken to the police station to sober up. On 17 November 2012, he received a move on direction.
[52] TB1, 33.
[53] TB1, 33.
This pattern continued through 2013. On 18 April 2013, he was arrested, sobered up, and released.[54] On 12 August 2013, he was attending a flat party where everyone was drunk. The applicant was arrested for infringing a noise abatement direction. At the police station he continued to swear and spat on the floor. He was charged with malicious damage. On 9 September 2013, he was fined $200 for property damage and $300 for allowing noise emission.[55]
[54] TB1, 29.
[55] G7, 30.
In the following years, he continued to accumulate warnings or punishments. He received relatively benign sentences. In June 2015, neighbourhood conflict led to the imposition of an AVO.[56] One incident gave rise to charges of assault and resisting the police.[57] On 27 June 2016, he was called up for these offences and sentenced in the Queanbeyan Local Court to a nine-month sentence, suspended on entering a bond.[58] On 19 June 2017, he was driving a Nissan Pulsar on a learner’s permit without an accompanying driver. He was intoxicated and failed to take a slight bend, running off the road into a wall. He was charged with negligent driving (fined $550), being a learner not accompanied by licensed driver (fined $550); and high range PCA, for which he received a fine of $600 and a 10-month suspended sentence.[59]
[56] TB4, 129, 136.
[57] TB1, 118-125.
[58] G7, 30; G10, 41.
[59] TB1, 7.
On Boxing Day 2017, he was subject to a home search by police who were looking for a mobile phone said to have been left at his home by a ‘friend’ with whom he had been spending time. He said, ‘Why would I take the phone, it is an old ladies phone with push buttons’. He consented to a search of his person and nothing was found. The following day, the woman reported to the police that she had found her phone at home underneath a blanket.[60]
[60] TB1, 5.
On 15 March 2018, he was found comatose with an empty bottle of bourbon next to him on the footpath. The police called an ambulance, and he was taken to the hospital and placed in the emergency ward. Police contacted the hospital and were told that he was being monitored and in a stable condition.[61]
[61] TB1, 5.
At around this time, he spent time with a friend who was developmentally disabled. She lived independently in a granny flat attached to a home where her foster parents lived. She worked 4 days a week, travelling to and from work, occasionally hitch-hiking.[62] She had recently been diagnosed with autism. He had met her on bus journeys while travelling to English classes and they had become friends.
[62] See Statutory Declaration by TB, 23 February 2023, 1.
On 19 March 2018, she made a complaint to the police. She said that an incident involving the applicant occurred ‘Saturday last week’.[63] She did not want to disclose too many details and changed the subject often during questions. She said she did not want to be his girlfriend anymore even though he wanted her to go to Africa and meet his family.
[63] TB1, 3.
It appears that initially she was examined with some scepticism. She was tested to see whether she knew the difference between truth and a lie. She was told not to repeat things that other people had told her because the police had concerns that she may be influenced by the views of her former carer, who apparently ‘had a hatred for dark-skinned people and thinks of them as rapists, as told to police by carers at …….’. The remaining words are blanked out.[64]
[64] TB1, 3.
A police file note dated 19 March 2023 suggests that the police did some preparatory work before interviewing the complainant. [65] The note states:
At 8.41am 19/3/18 Detective PIEPER attended ......... ......... ......... (......... ......... .........) and spoke with the Acting Team Leader,.......... Also present was ......... who was a witness. Enquiries were made in relation to victim, ......... .......... ......... explained that ......... was born with ADHD and an intellectual impairment. She was also recently diagnosed with being on the Autism Spectrum. ......... also supplied the following in relation to the alleged victim; - caught shoplifting from Kmart Queanbeyan (who did not wish to prosecute her due to her disabilities) - Barred from Belconnen Mall for allegedly being 'too loud' - is free to come and go - is prone to lying to get out of trouble - is prone to deflect blame on someone else - presents well. Is polite and high functioning - takes a while to realise you are being deceived. - has limited concept of time - told carer ......... that he [SSVJ] gave her 7 beers. - occasionally has a light beer. - ......... contacted ......... on her mobile phone which was engaged. ......... contacted [SSVJ] on his mobile phone who was difficult to understand and heard ......... in the background. ......... spoke to ......... via [SSVJ]'s mobile phone and made no disclosure of assault. ......... told her that she was due to have her medication at 7pm. ........ asked if it was 5.30pm to which she was informed it was 7.30pm. - ......... returned to.................. happy and in good spirits and asked what was for dinner. - ......... spoke with ......... .........and no disclosure was made on the Saturday. – [SSVJ] has attended......... ......... ......... and had a coffee with ......... in a supervised visit. It is not believed he has been back. - Staff at ......... .................. are aware that ......... has been to [SSVJ]'s place approximately 2 weeks ago and was there sometime between 8.30-10.30pm and returned later than requested. - ......... see's Dr ......... in Queanbeyan who marked her papers as "sexually promiscuous" - The staff have not seen this behaviour from her. - Works 4 Days a week at ......... ......... ......... ......... ......... - Is currently on contraceptives. - Staff have details of .........'s friend '[SSVJ]' who visited her and it is recorded in the diary as [SSVJ] .........
[65] TB1, 3.
A later file note created on 19 March 2023 describes the incident in detail.[66] According to this note, when she got home from the applicant’s home, she did not report anything untoward to her carer, but the following day she said that she had ‘S.E.X.’ with him.[67] This note describes the events of this day and appears to provide the basis for the subsequent sentencing of the applicant.
[66] TB1, 2.
[67] TB1, 2.
On 27 March 2023, the complainant attended the police station with her foster parents and was interviewed by a specialist investigator. She had a support person present. It is unclear whether this was one of her foster parents. It was unknown at the time of the interview that the support person was a witness to the incident, having received a phone call from the victim while at the applicant’s house. According to the police report, it was difficult to have the victim articulate details of the event in an orderly sequence. It was difficult to ascertain how long the victim had known the applicant. She said the applicant ‘did it’ three times, but it could not be ascertained what the victim was trying to describe by ‘it’. The file note ends by stating ‘Quite clearly articulated repeatable during the interview that she was not consenting to sexual intercourse’.[68]
[68] TB1, 5.
On 28 March 2018, the applicant was arrested on three counts of aggravated sexual assault. He was remanded in custody and refused bail. Apart from the two-month hiatus when his visa was temporarily restored, he has been on remand, under sentence or in immigration detention since that date.
The charges were laid under section 61J of the Crimes Act 1900 (NSW), an offence punishable by a maximum of twenty years imprisonment. Section 61J provides:
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
The existence of an aggravating circumstance increases the maximum penalty from 14 to 20 years imprisonment.[69]
[69] The provision specifies ten separate circumstances of aggravation, including that the complainant has a cognitive impairment, which is defined to include a developmental disorder (including an autistic spectrum disorder): paragraph 61J(2)(g)), and section 61HD(b).
On 13 February 2020, he pleaded guilty and was convicted by the Goulburn District Court of New South Wales and sentenced to an aggregate sentence of six years imprisonment with a non-parole period of three years and eight months.[70] His earliest possible release date was 27 November 2021,[71] and for each of the counts, the court set an indicative term of 5 years and 6 months.[72]
[70] RSFIC, [24]; G7, 28.
[71] G11, 46.
[72] G8, 33.
Under cross-examination by Mr Burke, he admitted to having sexual intercourse with the victim. He also admitted, although not as clearly, that he knew that she was not consenting to the act of intercourse.
SSVJ, I put it to you that you had sexual intercourse with an intellectually disabled woman who did not consent to having sexual intercourse with you?---Yes.
Do you have anything to say about that proposition?---Yes, I will say the same question again, I am very, very sorry for what has been happen, and I didn’t (indistinct). If I am normal, my mind shouldn’t be that way, but I was drunk, and just also my mind is lost. It’s still a little, and I also apologise for everything I did when the time I was drunk. At this time now in my life (indistinct words) for the Australian government, it is not good for that to do things like that, and I am really, really sorry for what has happened. And really my life has changed, I learned a lot, and I just need forgiveness from her for what happened, and I really - that is all I want to say.[73]
[73] Transcript, Day 2, 27 April 2023, 66.
Assessing the nature and seriousness of the applicant’s criminal record
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending.
Violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community, and crimes of a violent nature against women and children are viewed very seriously regardless of the sentence imposed. Acts of family violence are regarded as very serious, regardless of whether there is a conviction for an offence, or a sentence imposed.
With these caveats, the Tribunal is required to take account of the sentence imposed by the criminal court, the frequency of the offending and whether there is any trend of increasing seriousness, the cumulative effect of repeated offending, and whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
I also note that under paragraph 8.1.1(1)(b)(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 are considered to be very serious. This applies to the present case given the nature of the sexual offences which led to the cancellation of his visa. I also note that one of his prior offences involved assault and resist police officers.
I note that until the offending which led to the cancellation of his visa, he had avoided prison, although he had received suspended sentences for the assault on police as well as for the driving offence.
When measured against the various factors in paragraph 8.1.1, the applicant’s offending overall is very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1.2
Under paragraph 8.1.2(1), in considering the need to protect the Australian community, the Tribunal 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.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
Given the nature of the key offending which led to visa cancellation, it is appropriate to note that sexual violence involves not only the risk of serious physical harm, but carries a grave risk of psychological harm, especially where the victim is mentally impaired. However, I take note of the sentencing remarks by the District Court, including the existence of remorse and the lack of premeditation:
18. As the Crown acknowledges, the intellectual disability of the victim is a circumstance of aggravation but it is not separately an aggravating factor in the case. The mitigating factors to be taken into account include the lack of planning and the plea. I accept that he is remorseful. Mr Winch acknowledges the injury to the victim as an aggravating factor…
…
21. The offending, in this case was towards the mid-range of objective seriousness and I accept that there should be a small degree of accumulation to reflect the fact that there were three separate instances of intercourse. The Crown acknowledges that this is his first time in custody and there is a demonstrated need for supervision and support, and he lacks family support to deal with his mental and alcohol abuse issues. There is a clear basis for a finding of special circumstances.
22. Mr Winch's written submissions do not take serious issue with the Crown's position and he acknowledges that, objectively, these are very serious matters.
23. There is no doubt that prison has been, and will continue to be a difficult experience for [SSVJ] given his background. There is evidence in Dr Furst's report of an assault in custody which has resulted in a significant injury to him. I take into account his efforts in advancing his knowledge of English and obtaining skills in the building trades while in custody. He clearly has significant deficits and multiple needs and those can be addressed both in custody and, more importantly, during a period of extended supervision upon his release to parole.[74]
[74] G9, 35, at 40-42.
In terms of special circumstances, the learned judge noted:
[SSVJ] was born in December 1988 during a protracted civil war in his homeland of Sudan. His parents were both killed in that war. He had 11 or 12 siblings with only two of them surviving the war. He had no formal schooling. He was conscripted into the South Sudanese army as a child solider when he was seven years of age and he remained in the army until his early teens. He suffered a bullet wound while fighting as a child. He spent six months in a Kenyan hospital, eventually walking with crutches. He was then taken to an Ethiopian refugee camp where he lived from 2000 to 2006. He came to Australia as a United Nations refugee in 2007. He has no relatives in Australia. He has studied English and his command of English has improved over the years with support from the government and immigration authorities.[75]
[75] G9, 36.
The applicant’s long history of involvement with the police has been canvassed above. In addition to the sexual offences, he has been found guilty and/or convicted of various violent, property or driving related offences, including negligent driving, assault police officer, resist officer in execution of duty, fail to appear in accordance with bail acknowledgment, contravene prohibition/restriction in AVO (Personal), behave in offensive manner, use offensive language, destroy or damage property, possess prohibited drug, obstruct a Commonwealth public official and fail to quit premises.
The Respondent also emphasises the violence of some of the offending, pointing to the offences involving the police on 8 June 2015,[76] and for which on 27 June 2016, he was sentenced in the Queanbeyan Local Court to a nine-month suspended sentence.[77]
[76] TB 118-125
[77] RSFIC, [25]; G7, 30; TB 118-125.
Mr Burke contended that the applicant had not accepted responsibility for his sexual offending and therefore the risk of future offending was unacceptably high.[78] This was so even though there was no history of sexual offending, and this was a solitary albeit serious encounter involving three acts of intercourse.[79] It was also noted in the pre-release report that the applicant had not completed any sex offender programs but that this was through no fault of his own.[80]
[78] Transcript, 4 May 2023, 122.
[79] Transcript, 4 May 2023, 121.
[80] TB2, 69, 76.
I do not agree with the assertion that the risk of sexual recidivism is high. I accept that the applicant has a serious drinking problem and unless treated will continue to come into contact with the law.
It was obvious that he is resentful about the way things unfolded. He said that he did not have an interpreter when he appeared in court on the sexual assault charges.[81] Given his background and possible naivete in sexual matters, and the complaint’s disability, which included behavioural problems as alluded to in the police investigation, the potential for miscommunication was very real. It is, however, important to emphasise that in these proceedings there is no scope to question the facts upon which the applicant was convicted and sentenced. The essential elements of the offence include the facts of intercourse and the lack of consent.
[81] Transcript, Day 2, 27 April 2023, 67.
He said that he felt pressured to plead guilty because he had been in remand for so long. He said:
That’s why I have been in remand for two years, I didn’t say it was easy, but after that I say guilty because I see there is nowhere there. There is nowhere I can go, and there is no (indistinct). After I was been calling for interpreter who is (indistinct) what is going on, nothing. So, by that time I just - (indistinct words). And everything that already happened is not going to be changed.]
Paragraph 8.1.2(2)(b): The likelihood of the non-citizen engaging in further criminal or other serious conduct
The applicant’s record in Australia shows a sustained period of alcohol abuse. However, he has been ‘dry’ since his incarceration. He spent a short time in the community from 29 December 2022 to 17 February 2023 and there is no evidence that he abused alcohol during this period.
I note that the applicant has undertaken a number of courses whilst in prison. These include:
(a)Anger Management Certificate issued by Universal Class Inc. (29 August 2022);
(b)TAFE NSW Health Survival Tips (13 June 2018);
(c)Warehousing (20 December 2020);
(d)Logistics (13 November 2020);
(e)Landscape Constructions (5 May 2021);
(f)Bricklaying (17 June 2021);
(g)Bible Studies (Crossroads) (19 September 2019);
(h)Graduate Prisoner’s Journey NSW Corrections (Remand Addictions: Understanding Change) (17 and 23 May 2019);
(i)BSI Learning: Access to Vocational Pathways (26 August 2020);
(j)Operating Personal Computer (4 November 2020);
(k)Certificate in Hospitality (20 April 2021)
(l)CSI Safe Working Practices
I consider that this record provides a significant mitigation of risk should the applicant be released into the community.
Conclusion on PC1
Given the nature of the offending, PC1 is assessed as weighing heavily against revoking the mandatory cancellation.
Family Violence committed by the non-citizen: PC2
The Direction provides a definition of family violence in these terms
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or …
…
member of the person’s family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
Family violence involves a relationship and a particular type of behaviour that is coercive and controlling.
There is some evidence that the applicant and the complainant were in a relationship before the offences were committed. This question was not put to the applicant during the hearing.
I note that there is a reference to a ‘relationship’ in the Pre-Sentence report dated 27 August 2021,[82] and in the police notes relating to the investigation of the incident. The report notes that he stated that he had never been in an intimate relationship in his life, but that contact with his friends during the Sentencing Assessment period revealed that he appeared to be in a relationship with the victim at the time of the offence.[83]
[82] TB2, 69, at 70. This is also referred to by the PV delegate: see TB7, 246.
[83] TB2, 69, at 70. This is also referred to by the PV delegate: see TB7, 246.
The respondent contended that this primary consideration was not relevant, and that the Tribunal did not need to consider it.[84]
[84] Transcript, 27 April 2023, 40.
In the absence of more compelling evidence as to the prior relationship between the applicant and the complainant, I consider PC2 to be of neutral weight.
The strength, nature and duration of ties to Australia: PC3
Paragraph 8.3 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
I note paragraph 5.2 of the Direction which provides:
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
He has no family in Australia.[85] He does, however, have a strong social link in terms of his relationship with DS and her daughter TB. DS attests to the length of their relationship, which extends over at least ten years. Her family befriended the applicant not long after he moved to Queanbeyan in 2010. Some indication of the strength of their bond may be found in the various entreaties she has made on his behalf. She states that she cares for him very much and does not want to see him deported.[86] I also note the email she sent in 2022 to the then Minister of Home Affairs.[87] In that email she appears to downplay the seriousness of his offending, perhaps even blaming in part the victim, but whether or not her sentiments are justified does not detract from the relevance of paragraph 8.3(3).
[85] Until recently it was thought that his entire family including his mother and father and 11 siblings were killed in the war, although he has recently been put in contact with two more distant surviving members of his family.
[86] Statutory declaration sworn on 9 December 2022.
[87] G16, 85.
I also note the references provided by TB, which acknowledges the seriousness of his sexual offending.
According to his personal statement, the applicant was employed in the years 2011 to 2015 as a bricklayer, concreter, laundry worker and roof tiler.[88]
[88] G14, 66.
The applicant has lived in Australia for 16 years. He is a long-term resident of this country.
Paragraph 5.2(5) provides that Australia will generally afford a higher level of tolerance for 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. Paragraph 8.4(a)(i) reinforces this principle by requiring that when having regard to the period spent in Australia, considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending.
The Respondent contends that the applicant did not live in Australia during his formative years, and that this consideration therefore has little weight. The term ‘formative’ is somewhat lacking in precision. There is no specific age or bright line isolating the formative period in a person’s development. Although not a juvenile, the applicant has lived in Australia from a very young age. When he arrived at the age of 18, he was entirely unfamiliar with the ways of this country and had none of the advantages of language, education, or family connections. He spent his childhood as a displaced unaccompanied child in various African countries. When he arrived, culturally, he was a stranger. It is not obvious to the Tribunal that the word ‘formative’ is inapplicable to his early years spent in this country.
Conclusion on PC3
I find that taken together these considerations weigh heavily in favour of revoking the mandatory cancellation decision.
Best interests of minor children in Australia affected by the decision: PC4
At the hearing, the applicant did not refer to any minor children in Australia who might be affected by a decision on his application. In his personal circumstances form completed on 14 January 2022, he stated that he had no children or any other family in Australia or in Sudan.[89] I am satisfied that this consideration is neutral, it weighs neither for nor against revocation of the mandatory cancellation.
[89] G14, 61.
The expectations of the Australian community: PC5
Paragraph 8.5 of the Direction sets out the Government’s view regarding expectations of the Australian community. In considering paragraph 8.5, it is impossible to divorce the applicant from his past. As noted by the PV delegate:
[T]he conflict between the Sudanese Government and the Sudan People’s Liberation Army is recognised as one of the most brutal and long running civil wars in modern times, marked by gross human rights violations and the deaths and displacement of millions. There is a high incidence of post-traumatic stress disorder among those that have witnessed the loss of their family and friends, experienced torture and/or sexual violence. Many South Sudanese refugees have had their entire home/village destroyed and been separated from key family members.[90]
[90] TB7, 202-203.
There is evidence that the applicant suffers from PTSD as a result of his experiences in Africa, the murder of his family, and his displacement, as diagnosed by Dr Furst. The fact that the applicant may suffer from PTSD as a result of his early life experiences is a factor that should be taken into account.
The Respondent concedes that the fact that the applicant suffers from PTSD may be a relevant factor in determining the weight to be given to this consideration.
I find that although PC5 weighs against the applicant, it should only be given moderate weight due to his subjective circumstances.
OTHER CONSIDERATIONS
Other considerations identified in the Direction of relevance are:
(a)Legal consequences of the decision: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
Legal consequences of the decision under section 501CA: OC1
Paragraph 9.1 provides:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called 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 Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
The Respondent’s Further Submission on Legal Consequences filed on 27 April 2023 acknowledges that the applicant’s detention has no identifiable endpoint, subject to one of the following outcomes:
10. In the event the Tribunal affirms the delegate’s decision, the applicant would remain in detention until:
a.the protection visa application is determined in the applicant’s favour; or
b.the Minister decides to exercise a non-compellable personal power under ss 195A or 197AB in respect of the applicant; or
c.the applicant is resettled in a safe third country; or
d.one of the situations under s 197C(3)(c) apply (a protection finding is quashed, the Minister decides that a protection finding would no longer be made, or the applicant requests voluntary removal).
The Respondent concedes that this consideration weighs in favour of revoking the mandatory cancellation decision, though submits that it is not determinative.
As noted above, the applicant has made a valid application for a protection visa that has been ‘finally determined’.[91] The delegate was satisfied that by reason of his membership of a particular social group, namely, that of ‘Westernised, long absent South Sudanese male of fighting age, without established tribal links’, Australia’s protection obligations were engaged.[92] As such, he is recognised by the Australian government as a person in respect of whom Australia owes international protection obligations.[93] Therefore, his removal from Australia is neither required nor authorised by section 198 unless one of the eventualities mentioned in paragraph 197C(3)(c) occurs.[94] If his visa is not restored, he will remain in immigration detention without any fixed end-date, that is, he will be subject to indefinite detention.
[91] Subsection 5(9)(a) of the Act relevantly defines ‘finally determined’ as a ‘decision that has been made in respect of the application is not … subject to any form of review under Part 5 or 7’. The delegate’s protection visa refusal decision is a reviewable decision under subsection 500(1)(c), which is not a Part 5 or 7 reviewable decision.
[92] TB7, 190, 211.
[93] TB7, 190.
[94] This prohibition upon removal is lifted if any one of three things occur: the decision in which the protection finding was made has been quashed or set aside; a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6); or the non-citizen has asked the Minister, in writing, to be removed to the country. The PV application is properly regarded as ‘finally determined’ within the meaning of subsection 5(9)(a) of the Migration Act, even though it is presently the subject of review before the Tribunal.
The Respondent accepts that the immediate legal consequence of a decision to affirm the reviewable decision is that the applicant will be detained without a fixed release date. He may be released at some point in the future by a separate administrative process, but the Tribunal should resist the temptation to calculate the likelihood of one of the three eventualities in paragraph 197C(3)(c) occurring or attempt to predict the likely outcome of the PV proceedings. The Tribunal should proceed simply on the footing that if the reviewable decision is affirmed, the applicant will face the prospect of indefinite detention.
Furthermore, the Direction should be applied on that basis. Therefore, for example, the Tribunal did not need to consider whether the applicant would face impediments in establishing himself and maintaining basic living standards in South Sudan, because removal from Australia was not a legal consequence of the decision to affirm the reviewable decision. It was possible that this situation might change in the future, but this was not an appropriate subject of speculation on the part of the Tribunal.
If the decision to cancel his visa on character grounds is affirmed, he will be held in immigration detention without a fixed end date. The applicant begged the Tribunal not to send him back to the detention centre, which he described as worse than prison.
The Respondent concedes that detention on an indefinite basis favours revoking the reviewable decision, while arguing that such detention was justified in this case by the nature of the offending, which he described as ‘horrendous’ and ‘repugnant’.[95]
[95] Transcript, 4 May 2023, 123.
For the reasons given below, I find that this consideration weighs heavily in favour of revoking the mandatory cancellation.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Respondent contends that this consideration has no relevance because there is no reasonable possibility that he may be removed to South Sudan, given his status as a protected person. Nor is removal to Sudan a possibility in view of the civil war in that country.
I consider that OC2 is of neutral weight.
Impact on victims: OC3
The Direction provides:
(1) Decision-makers must consider the impact of the … 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 … who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Under this consideration the Tribunal must consider the impact on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims. While there is some evidence before the Tribunal as to the impact upon the complainant of the sexual assault, there is no evidence before the Tribunal as to the impact of the decision of the Tribunal to set aside the reviewable decision.
I consider that OC3 is of neutral weight.
Impact on Australian business interests: OC4
There is no evidence before the Tribunal indicating that the applicant’s return to South Sudan would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
I consider that OC4 is of neutral weight.
CONCLUSION
In weighing the primary and other considerations I note the following:
Factors in favour of not revoking the mandatory cancellation:
(a)Protection of the Australian community (PC1)
(b)Expectations of the community (PC5)
Factors in favour of revocation:
(a)Strength, nature and duration of ties to Australia (PC3)
(b)Legal consequences of the decision (OC1)
Factors that are not relevant:
(a)Family Violence (PC2)
(b)Best interests of minor children in Australia (PC4)
(c)Extent of impediments if removed (OC2)
(d)Impact of decision (OC3)
(e)Impact on Australian business interests (OC4)
The applicant has been in prison or immigration detention since March 2018, except for a short two-month period earlier this year.
The overarching consideration of this case is the issue of indefinite detention. There is no constitutional impediment preventing the indefinite detention of a non-citizen who is not in possession of a visa and cannot be lawfully removed. But arguably, indefinite detention is even more severe than a natural life sentence. Detention without any fixed end point is undeniably harsh, possibly even cruel, especially in the absence of any requirement for periodic review. In a democratic country like Australia committed to the rule of law and the fair treatment of refugees, migrants, those suffering from mental illness, and offenders within the criminal justice system, such detention can only be justified in the most extreme circumstances.[96]
[96] See B. McSherry, P. Keyzer, A. Freiberg, Preventive Detention for ‘Dangerous’ Offenders in Australia: A Critical Analysis and Proposals for Policy Development, Report to the Criminology Research Council (2006)
Outside the scope of administrative detention, statutory schemes which provide for the deprivation of liberty on an indefinite basis are reserved for the most serious sex offenders, habitual criminals, and terrorists. Even in these cases, periodic review is a standard feature.
The Respondent contends that the applicant’s offending in this case is sufficiently egregious to require the cancellation of his visa, even if the legal consequence is that he will be detained on an indefinite basis, subject to the possibility that he may be removed at some point in time if circumstances change. They have applied the terms ‘horrendous’ and ‘repugnant’ to the applicant’s offending.
Such descriptors belie the fact that this was the first instance of such sexual offending, and that, as found by the sentencing judge, it was not premeditated, there were special circumstances, and he had not previously been incarcerated. This is not a case where the person seeking visa reinstatement has a history of sexual violence against women.
The commission of a sexual offence does not automatically disqualify a person from holding a visa, and indeed, Mr Burke did not suggest otherwise. There is an understandable community anger about sexual offences, but in this area as in all others, the Tribunal is required to make nuanced judgments. I note that on several occasions, the Tribunal has acted in a merciful way even though the non-citizen has been convicted of a sexual offence.[97] For example, in ZCGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4660 (ZCGS), the applicant had been sentenced to 9 years imprisonment for one count of sexual intercourse without consent. Importantly, a delegate of the Minister found the Applicant was owed protection obligations but refused to grant him a protection visa. In deciding to revoke the mandatory cancellation of his visa, the Tribunal considered the prospect of indefinite detention as a significant consideration that outweighed the objective seriousness of the offending. Member Dr Huntly held, at [180]:
… although there are strong considerations that weigh moderately against revocation of the cancellation of the Applicant’s visa, the countervailing considerations which favour revocation, in particular the impact of the legal consequences of the decision on the Applicant, outweigh those considerations in the Applicant’s case.
[97] See, for example, ZCGS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4660; YZXB and Minister for Home Affairs [2019] AATA 69; BSMF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 3208; FPJF v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4045; Kirk v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 4858; WSYT and Minister for Home Affairs [2019] AATA 4621; LGLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 3613; TRTZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 792.
Here, the sentencing judge noted that a period of incarceration may be especially hard for the Applicant, and that he was at risk of assault from other prisoners or detainees. I note that the applicant was assessed by a Forensic Psychiatrist Dr Furst in June 2019. Dr Furst noted:
You instructed [SSVJ] is a Sudenese refugee. His physical appearance had apparently changed remarkably since his incarceration. [SSVJ] attributed this to working out in the gym. He told you that he has been the victim of a physical attack at Goulburn Correctional centre when inmates discovered the nature his particular charges. He bears a scar from this attack on his forehead and instructs that his eye is damaged. [SSVJ] also instructs he is Christian and spends time in the Long Bay Correctional Centre Chapel.[98]
[98] TB3, 105-8, Report dated 19 June 2019.
The purpose of the assessment was to determine whether he was fit to plead.[99] Dr Furst reported:
He has evidence of post-traumatic stress disorder, having intrusive memories of atrocities he witnessed in the Sudan, including memories and images of his family being killed and of other people dying. He was unable to sleep and had nightmares when he did sleep. He reported waiting up at night crying, also highly suggestive of trauma-related symptoms.
…
When asked about apparent ‘voices’ he was hearing during his period on remand, [SSVJ] related these to trauma-related sounds of bombing, yelling and crying rather than true auditory hallucinations, suggesting any such symptoms have been related to his apparent PTSD, rather than a psychotic illness.
…
[SSVJ] manifests long-term effects of severe war-related trauma in his childhood in the form of chronic re-experiencing phenomena, nightmares, intrusive memories, high levels of anxiety and insomnia. His primary clinical diagnosis is post-traumatic stress disorder (PTSD). He also has related problems with alcohol and cannabis abuse/dependence, a common feature in people suffering from post-traumatic stress disorder.
… [I] am of the opinion that [SSVJ] is not suffering from a major mental illness such as schizophrenia and has adequate capacity and endurance to plead to the charges in question, follow proceedings, instruct his legal counsel and to make out his defence at trial, if any. Accordingly, I am of the opinion [SSVJ] is fit to be tried.[100]
[99] According to the standards of R v Presser [1958] VR 45 and Kesavarajah v R (1994) 181 CLR 230.
[100] TB3, 106-107.
Apart from the damage to his eye, he claims also to have lost four of his teeth in this attack.
I consider that the applicant is at risk from prolonged indefinite detention and that such detention is not justified. This is plain both from the judge’s sentencing comments, and Dr Furst’s psychiatric assessment. Nor do I think that indefinite detention is an appropriate recourse for what appears to be his self-medication with alcohol, that has brought him into constant contact with police, who have all too often acted as social workers, seemingly with considerable restraint and benevolence. I note that in ZCGS, the Tribunal afforded the consideration of legal consequences significant weight on the basis that indefinite detention would have had a ‘devastating impact’ on the Applicant’s mental health: at [126]-[131]. I respectfully adopt this approach.
This is a special case. The inhumanity to which he was exposed as a young child is plain to see. The pathway to a meaningful life in Australia is more difficult to perceive, but having examined the case in detail, I am satisfied that the combined weight of factors supporting revocation of the mandatory cancellation decision should prevail over those which point the other way.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister, dated 26 October 2022, not to revoke the mandatory cancellation of the Applicant’s Refugee Visa (Class XB Subclass 200). In substitution, the Tribunal decides that the cancellation of the said visa is revoked.
I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.....[SGD]...................................................................
Associate
Dated: 20 June 2023
Date(s) of hearing: 26 and 27 April, 4 May 2023 Date final submissions received: 3 May 2023 Applicant: In person Solicitors for the Respondent: Mr C. Burke, Sparke Helmore Lawyers
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