STZS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1255
•16 May 2022
STZS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1255 (16 May 2022)
Division:GENERAL DIVISION
File Number: 2020/1252
Re:STZS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:16 May 2022
Place:Melbourne
Under section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975, the Tribunal:
1.sets aside the decision of the delegate dated 26 February 2020; and in its place
2.substitutes a decision that the mandatory cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – remittal by Federal Court – applicant held class XB subclass 200 (refugee) visa – visa cancelled owing to substantial criminal record – delegate of Minister decided not to revoke cancellation – ministerial direction – Direction No. 90 – primary considerations: protection of Australian community from criminal or other serious conduct – juvenile offences where no conviction recorded are an irrelevant consideration – whether conduct constituted family violence – the best interests of minor children in Australia – expectations of Australian community – other considerations: international non-refoulement obligations – extent of impediments if removed – chronic psychiatric condition diagnosed – links to the Australian community – prospects of prolonged detention – decision under review set aside and new decision substituted
PRACTICE AND PROCEDURE – Guideline on persons giving expert or opinion evidence – Tribunal not bound by rules of evidence – whether evidence of an expert medical witness proffering an opinion outside specific speciality of medical expertise that a person may benefit from further medical assessment should be given no weight – witness expressly states this view not being given in capacity as expert witness – in this case evidence does not carry no weight – Tribunal may have regard to material that would not be admissible in a court – expert medical witness’s qualifications make him competent to express a general view
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Crimes Act 1914 (Cth), s 85ZR
Criminal Code 1899 (Qld), ss 268, 269, 271, 272, 339
Evidence Act 1995 (Cth), s 79
Migration Act 1958 (Cth), ss 195A, 197AB, 198, 499, 501, 501CA
Youth Justice Act 1992 (Qld), s 184Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Hartwig v P E Hack [2007] FCA 1039
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Pallett v Commonwealth of Australia, Department of Human Services – Centrelink [2017] FCA 1132
STZS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re: [2020] AATA 2504
STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)
Department of Foreign Affairs and Trade, Country Information Report – Ethiopia (12 August 2020)
Migration Act 1958 – Direction No. 90 – direction under s 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)Queensland District and Supreme Courts bench book
REASONS FOR DECISION
Senior Member D. J. Morris
16 May 2022
BACKGROUND
On 20 May 2020, the Tribunal made an order under section 35 of the Administrative AppealsTribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the name of the Applicant in this matter and assigning the anonym ‘STZS’. In addition, the Tribunal will anonymise the name of other witnesses and children who are mentioned in these reasons.
A guide to anonyms used in this decision:
·STZS – the Applicant
·Ms AW – his mother
·Mr AK – his stepfather
·Ms AS – his sister
·Mr AM – his oldest half-brother
·Ms AR – his oldest half-sister
·Mr AX – his next half-brother
·AJ – his younger half-brother, a twin
·AD – his younger half-sister, a twin
·AG – his next younger half-brother
·AB – his youngest half-brother
·Mr MO – a family friend
STZS is a citizen of the Federal Democratic Republic of Ethiopia. There was conflicting evidence as to whether he was born in January, June, or July 1997. He was born in Addis Ababa. His mother is of Oromo ethnicity. Shortly after STZS’s birth, his father died in what was described as an act of ethnic and political violence by persons on behalf of the then Ethiopian Government.
At the time of his birth, STZS had one older sibling, his sister Ms AS. In 1997, when the Applicant was a baby, the Applicant’s mother, Ms AW, then a widow, fled with her two children to Kenya. They lived in refugee camps there, mainly in a camp in Dadaab. Ms AW met and married the Applicant’s stepfather Mr AK. Ms AW and Mr AK went on to have five children together while in Kenya. They are a son Mr AM born in 2000; a daughter Ms AR born in 2002; another son AX born in 2004; a son AJ born in 2007, and a daughter AD born in 2007. After arriving in Australia, Ms AW and Mr AK had two more children, a son AG born in 2010 and a daughter AB born in 2011.
In 2009 Ms AW was granted a refugee visa, and her children, including the Applicant, also received refugee visas as dependants (STZS was granted a Refugee Class XB (Subclass 200) visa in August 2009). They arrived in Australia in November 2009 and settled in a suburb in Brisbane.
Between September 2012 and June 2019, STZS was before the Courts in relation to various charges. The Applicant’s solicitors submitted that he was suffering from chronic post-traumatic stress disorder (‘PTSD’); and that it was possible that he suffered from a neurocognitive disorder owing to a childhood accident in 2006 or 2007 when STZS fell while climbing a tree. It was submitted he could not see for a month and has suffered from memory deficits since that accident.
In August 2018, STZS was convicted in the Magistrates’ Court of Queensland of the offence of Burglary and commit indictable offence. He was sentenced to 14 months’ imprisonment. Later in August 2018, a delegate of the Minister cancelled STZS’s visa under section 501(3A) of the Migration Act 1958 (‘the Act’). The cancellation was on the basis that he failed the statutory character test by reason of being sentenced to a term of imprisonment of 12 months or more and was, at the time of cancellation of the visa, serving a sentence of full-time imprisonment.
STZS was held in immigration detention between August 2018 and January 2019. He made representations to the Department requesting revocation of the visa cancellation, and on 31 January 2019 a delegate of the Minister decided to revoke the cancellation, thus restoring STZS’s visa and releasing him from detention.
STZS re-offended on 31 March 2019. In April 2019 he was taken into custody. In June 2019, he was convicted in the Magistrates’ Court of Queensland of a further count of Burglary and commit indictable offence. He was sentenced by the Court to 12 months’ imprisonment.
On 18 July 2019, by reason of that sentence, STZS’s visa was cancelled under section 501(3A) of the Act because the delegate was satisfied that the Applicant failed the character test and was serving a full-time prison sentence (GD, p 33). In August 2019, the Applicant made representations to the Minister’s Department requesting revocation of the visa cancellation. He has been held in immigration detention since December 2019, having entered detention on completion of his prison sentence. Initially, he was held in a detention centre in Brisbane, but he was subsequently moved to a detention centre on the Territory of Christmas Island.
The Minister’s delegate decided on 25 February 2020 not to revoke the mandatory cancellation of the visa. STZS sought review by this Tribunal. The matter was heard in May 2020; and on 20 May 2020 the Tribunal purported to affirm the decision. On 22 September 2021, the Federal Court of Australia set aside the decision. His Honour Justice Middleton decided that claims of the prospects and effect of indefinite detention had not been considered by the Tribunal.
The matter was remitted to be reheard, which is this hearing.
HEARING
The hearing was held on 17 January and 19 and 20 April 2022, by video link as permitted by section 33A of the AAT Act. STZS was represented by Mr Paul Jeffreys of counsel, instructed by Refugee Legal. The Minister was represented by Mr Paul d’Assumpçao of counsel, instructed by Mr Jake Kyranis of Sparke Helmore Lawyers. The Tribunal was assisted by an interpreter in the Somali language.
On the first day of the hearing, the Tribunal experienced repeated difficulties with the video link, and after the Applicant’s mother gave evidence the hearing was adjourned. The detention centre advised that its communications systems needed to be repaired. The hearing resumed in April, and the Tribunal heard evidence from the Applicant, his sister Ms AS, his brother Mr AM and a family friend, Mr MO, as well as Dr Andrew Carroll, a forensic psychiatrist who appeared as an expert witness. At the conclusion of the hearing, the Tribunal reserved its decision.
The Tribunal admitted into evidence the documents in Annexure A.
The Tribunal took into account a Statement of Facts, Issues and Contentions lodged by the Applicant for the previous hearing before the Tribunal differently constituted, and a revised Statement of Facts, Issues and Contentions. In addition, an updated Statement of Facts, Issues and Contentions was lodged by the Applicant (‘ASFIC’) with annexures and was taken into account.
The Tribunal also had regard to a Statement of Facts, Issues and Contentions lodged by the Respondent (‘RSFIC’).
APPLICANT’S OFFENDING
Before the Tribunal (GD, p 58) was an Australian Criminal Intelligence Commission nationally coordinated criminal history check (‘NCCHC’) dated 16 July 2019 (GD, p 59). The NCCHC records offences in the name of STZS commencing with proceedings before the Children’s Court in September 2012, relating to offences committed in May 2012. On all charges, no conviction was recorded and STZS was placed on a 12-month good behaviour bond.
STZS had several matters before the Courts when he was a child (i.e., under the age of 18) which did not result in a conviction. A recent decision of the Full Court of the Federal Court of Australia has considered whether a decision-maker acting under the Act should have any regard for such matters. In Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Katzmann, S.C. Derrington and Banks-Smith JJ) (‘Thornton’), the non-citizen, Mr Thornton, had juvenile charges before the Queensland Courts where there had been dispositions without convictions being recorded. He argued that section 184 of the Youth Justice Act1992 (Qld) operates in a manner contemplated by section 85ZR(2) of the Crimes Act 1914 (Cth) in relation to the consideration of the revocation of the mandatory cancellation of his visa.
Section 85ZR(2) states:
Division 2 – Pardons for persons wrongly convicted and quashed convictions
85ZR Pardons for persons wrongly convicted
..
(2) Despite any other Commonwealth law or any Territory law, where, under a State law or a foreign law a person is, in the particular circumstances or for a particular purpose, to be taken never to have been convicted of an offence under a law of that State or a foreign country:
(a) the person shall be taken, in any Territory, in corresponding circumstances or for a corresponding purpose, never to have been convicted of that offence; and
(b) the person shall be taken, in any State or a foreign country, in corresponding circumstances or for a corresponding purpose, by any Commonwealth authority in that State or country, never to have been convicted of that offence.
The Full Court held, at [36] to [38]:
36. Although the term ‘pardon’ seems inapposite in the present context, s 184(2) of the Youth Justice Act is nevertheless an example of the type of state legislative provision expressly provided for in s 85ZR(2) as one ‘which removes or disregards the conviction altogether’, as was said by Kiefel J in Hartwig [Hartwig v P E Hack [2007] FCA 1039] at [11], the effect of which ‘as to take away the fact of the conviction, as a pardon might do’ (Hartwig at [8]). Thus, the effect of s 85ZR(2) is that Mr Thornton is taken never to have been found guilty of any offence committed as a child and to prohibit the Minister from taking into account a conviction of a child where there has been an order that no conviction be recorded.
37. Before the primary judge, the Minister accepted in oral argument that he had taken into account findings of guilt in respect of offences where a court had ordered that no conviction be recorded (Reasons at [20]). The fact of the six findings of guilt against Mr Thornton when he was a child was an irrelevant consideration: Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 40. It was an error to take those findings of guilt into account. The Minister conceded that, subject to the question of materiality, any such error would be jurisdictional.
38. The primary judge ought to have found that the Minister erred in taking into account Mr Thornton’s criminal history as a juvenile.
The Full Court found (at [46]) that there was a realistic possibility that, had the Minister’s reasoning not been tainted by Mr Thornton’s criminal history as a child, a different decision could have been made by the Minister.
The Tribunal notes that Thornton related to a decision where the Minister was acting personally, and was not bound to comply with the Direction that other decision-makers, including this Tribunal, must comply with under section 499 of the Act. The Tribunal also notes that the Minister’s Department had lodged a special leave application with the High Court of Australia in relation to the Thornton judgment. However, given that this is the apparent state of the law at present, the Tribunal proceeds cautiously and, in the absence of Thornton being raised at the hearing by parties, makes clear that in this decision no regard was had to matters recorded in the NCCHC (GD, p 63) in relation to STZS’s appearance at Court on 26 March 2014, nor any earlier court appearances recorded in that document.
In June 2014, STZS was before the Magistrates’ Court charged with Contravene direction or requirement. A conviction was recorded, and he was fined $150.
In November 2014, STZS was before the Magistrates’ Court charged with the following offences: Fraud – dishonestly obtains property from another and Receiving tainted property. On these charges, convictions were recorded, and he was required to undertake 60 hours of community service within the next six months. He was also charged with the offence of Contravene direction or requirement. In relation to this offence a conviction was recorded, and he was not further punished. In relation to the offences of Commit public nuisance and Trespass – entering or remaining in dwelling or yard, a conviction was recorded and STZS was placed on probation for a period of eight months.
In August 2015, STZS was before the Court and convicted of the offence of Breach of bail conditions. He was fined $400 and in default imprisonment for eight days.
In September 2015, STZS appeared at Court and was convicted of Failure to appear in accordance with undertaking (two counts). He was sentenced to one month imprisonment wholly suspended for two years.
In November 2015, STZS was convicted of Assaults occasioning actual bodily harm whilst armed/in company (on or about 26 November 2014). He was sentenced to six months’ imprisonment with 70 days in custody deemed as already served. He was also required to pay $1,000 in compensation. On the same day, he was convicted of the following offences: Wilful damage to property without consent and thereby caused a loss of $250 or less (on 7 August 2015); Possess utensils or pipes etc for use (on 9 May 2015); Breach of bail condition (on 26 June 2015); Commit public nuisance (on 7 August 2015), two counts. No further punishment was recorded.
On the same day, he was convicted of Breach of Community Service Order imposed on 27 November 2014 and fined $200. He was also re-sentenced for the offences of Fraud – dishonestly obtains property from another, Receiving tainted property, Contravene direction or requirement, and Breach of probation order, imposed on 27 November 2014, but was not further punished.
In July 2016, STZS was before the Court and charged with Failure to appear in accordance with undertaking (given on 18 May 2016). No conviction was recorded, and no further punishment ordered. He was also convicted of the offence of Commit public nuisance, on 9 February 2016, and fined $500.
In February 2017, STZS was convicted of Failure to appear in accordance with undertaking given on 8 February 2017. He was sentenced to one month imprisonment with an immediate parole release date, and the Court fully invoked the suspended sentence imposed in September 2015.
In April 2017, STZS was before the Magistrates’ Court again and charged with Breach of bail conditions. He was fined $200.
In July 2017, STZS was before the Court and convicted of the following offences: Possess utensils or pipes etc that had been used, Fail to take reasonable care and precautions in respect of syringe or needle, Possession of knife in a public place or a school, and Breach of bail condition (four counts). He was sentenced to 18 months’ probation. On the same day, he was convicted of the offence of Enter premises and commit indictable offence (between 2 and 5 October 2016). He was sentenced to four months’ imprisonment, to be suspended for 18 months. He was further convicted of the offence of Stealing (two months’ imprisonment, suspended for 18 months), and Failure to appear in accordance with undertaking (78 days’ imprisonment, with a declaration of time spent in custody ended the sentence on the day of his Court appearance).
In August 2018, STZS appeared in Court charged with breaching the probation order imposed in July 2017, together with fresh offences of Fraud – dishonestly gain benefit or advantage, and Burglary and commit indictable offence. He was sentenced to aggregated prison sentences, some to be served concurrently and with some time deemed as already served (i.e., from May to August 2018) and a 14-month prison sentence, with a parole release date of 23 August 2018. This is the offending which triggered the first visa cancellation.
In June 2019, STZS was convicted before the Magistrates’ Court of the offence of Burglary and commit indictable offence (on 31 March 2019) and sentenced to 12 months’ imprisonment, to be paroled on 18 June 2019. This was the offence that triggered the cancellation of his visa, the subject of this decision.
OPENING SUBMISSION – APPLICANT
It was submitted by the Applicant that STZS’s life can be split into four parts:
(a)First, the period from his birth in 1997 to the age of 12, which included his early time in both Ethiopia and in Kenya, and him witnessing serious violence as a young boy;
(b)Second, the period from the age of 12 to 22, where it was submitted STZS was with his family in Queensland and had trouble settling which led him into a life of drugs and alcohol and criminal activities;
(c)Third, the period from 2019 to the date of the hearing, where STZS has spent nearly all that period in confinement, either prison or immigration detention; and
(d)Fourth, the period from the day of the hearing onwards.
The Applicant stated that he relies on the SFIC submitted and says that there are many reasons to restore the visa, and the best thing to do is to permit STZS to re-join the Australian community. The alternative is to return him to Ethiopia or to a period of indefinite detention.
EVIDENCE
Evidence of Ms AW
Ms AW gave evidence that she talks to her son regularly, usually every two or so days, usually by telephone but sometimes by video. Ms AW said that STZS has acknowledged the problems he has caused for her by his wrongdoing and has told her he “won’t go back to that.”
Ms AW said she believed he had changed significantly. She said that when he was young and immature, he would not talk to her or pick up her calls. Ms AW said he now readily talks to her, or initiates calls to her. She said: “I give him advice, and now he accepts it. I believe he will never go back to where he was when he went to gaol.”
Ms AW said she had not spoken to him about Ethiopia because “I don’t want to remember it”. She said there is fighting all the time in that country because of land ownership and other disputes. When asked what she thought STZS’s prospects would be if he had to return to Ethiopia, Ms AW said: “I believe he would be ‘already dead’ from that time. Once deported, he is dead. There is no law, no judges, and gangs and fighting everywhere.”
Ms AW was asked if there was anyone in Ethiopia in her family or her husband’s family who they know or who STZS could stay with. She responded: “No, I don’t think so. I don’t know where my family is, we are still looking. I don’t want to remember about [Ethiopia]. In Ethiopia I was detained and gaoled. Cold water was thrown on us in gaol at midnight. I don’t want to go back to all those difficulties.”
Under cross-examination, Ms AW said that her son speaks Somali and Oromo, but was not fluent in the latter. She said he also speaks English but, in the home, they speak Somali.
Evidence of the Applicant
STZS told the Tribunal he speaks to his family “pretty much” every day, by telephone and sometimes by video link. He says when he is speaking to his mother, Ms AW, he also speaks to his youngest half-siblings, who will ask her if they can speak to him. He said his younger siblings do not know why he is away and are always asking when he will come home.
In respect of Ms AW, STZS said that his mother suffers from heart problems and worries about him and, if he was not to be released from detention or was deported, he thought it might affect her heart “in a worst way.”
STZS said that he was initially in Brisbane in detention but was then transferred to Christmas Island where he estimated he has been for around 18 months. He said this has increased his stress and anxiety because his family, who all live in Brisbane, are unable to visit. STZS said that he regrets what he has done in the past. He said he “hung around with the wrong crowd and didn’t take things seriously. I regret I could have done better in life than stealing and taking drugs and drinking.”
STZS said that he had seen mental health practitioners at the detention centre, and they dispensed some medication for stress and anxiety but “it didn’t help, so I stopped going, about nine months ago.”
When asked whether he would seek treatment if released, STZS said:
I will seek trauma counselling, drug and alcohol counselling and mental health assistance. I have done some research and [name redacted] is willing to help me. I spoke to her about four months ago and told her I needed help with drug and alcohol abuse and my mental health. She said she is willing to help me and help me find a job.
STZS said his goal is to become a mechanic. He said he has had “some little experience” in that area.
When asked how he would feel about being kept in detention with no end date, he responded:
My mental health [problems] would continue, my stress and anxiety. I would consider this to be one more chance to prove I can be a better person and change. I would be heart broken.
When asked what he knew about Ethiopia, STZS said:
Not much. My mum told me I was born there and left when I was about three to go to Kenya and then we came to Australia. My mum told me about tribes and war and stuff like that. She said that the situation there is bad, so many people have been executed, both Oromo and Tigray.
STZS said he did not know anyone (by which the Tribunal took him to mean family members or friends) in Ethiopia, and nor did his mother or stepfather. If returned he said: “I would be terrified. I wouldn’t know where to go to for my mental health.”
When asked why he would be terrified, STZS said: “Because of all the bad news coming from Ethiopia and me going back to the where the danger is; it would be traumatising.”
When asked about his offending, STZS said:
I was young and hanging around with the wrong crowd. I took things that didn’t belong to me. It was wrong. I am now more mature and have been in detention a long time.
When asked to elaborate about what he meant by the “wrong crowd”, STZS said he met them in high school. He told the Tribunal that:
When I get into trouble, I always do it with them. I should have realised it was a bad environment for me. In school, studying was hard for me. They were the only friends I had and I wasn’t realizing what I was doing was wrong.
STZS said he had not been in touch with anyone from this group since he has been in immigration detention and does not know where they now are. When asked if they might contact him through social media, STZS said he did not have any social media profile.
When asked what he would do if he was released and met one of this group in the street, STZS said: “I would talk to him and tell him what I’ve been through and how they should take things seriously in life.”
STZS said he knew he was responsible to ensure he would not re-connect with this group. He said the last time he used drugs was three or four years ago, before he went into prison. STZS said he would engage with the officer from the health service (whom he named) and said it was his responsibility not to touch drugs again.
STZS told the Tribunal the last time he drank alcohol was three or four years ago. When asked whether he would drink alcohol again, he said:
No. Alcohol has affected me. It is all because of alcohol that I am in here. I will never drink alcohol again. I don’t know what I am doing when I drink.
When asked what steps he would take regarding alcohol use, STZS replied: “Avoid people who drink. Get a job. Make myself busy.”
STZS acknowledged that he had his visa cancelled before, and then the cancellation was revoked, but he went on to re-offend. When asked why this time will be any different, he responded: “Last time I wasn’t taking things seriously. This time I have support. Last time I had not had long-term detention.”
When asked what he had learned in prison or in immigration detention, he replied:
Every crime has a consequence. How you need to look before you do things. How life is serious. Need to take things in life seriously and realise the better things I could have done if outside, like being a mechanic, working hard, supporting my family. I should get a job and do good things in life.
When asked about his age, STZS said that his real date of birth is 1998, not 1997. He said, “I think mum made a mistake when we were coming to Australia – I was born on [date redacted] July 1998.”
STZS said he wanted to go to TAFE and finish year 12. Regarding English, he said he can read and write “a little bit”. He said he would live with his parents and family if he was released.
Under cross-examination, STZS said he did not dispute the contents of the NCCHC. He was taken through various measures the Court had applied including probation and avoiding gaol, and his breaching parole orders and other orders made by the Court. He agreed with counsel for the Minister that when he came to Court in June 2018, he had not learned the lesson not to re-offend, having avoided imprisonment about a year before.
STZS agreed that in June 2018 his suspended sentence was extended and that he was relieved not to go to prison. He agreed that while he may not have understood some of the discussion that took place in the court room, he did understand the outcome and knew that he was to be of good behaviour. He did not recall whether he had an interpreter in Court at the time.
When asked why that was not enough to motivate him to avoid bad friends, alcohol, and drugs, STZS replied:
I cannot say it wasn’t enough, but re-offending took place for some reason. The reason was I was far away from my family. I joined the wrong group. That was the main reason for my re-offending. My younger age contributed to what I did at the time.
Counsel for the Minister read out commitments made by the Applicant when he sought to have his visa revocation reversed in 2018 (GD, p 247), and suggested to STZS that those commitments are like those he has made today. STZS agreed.
Counsel asked STZS about an incident in 2014 where he thrust a light bulb at the face of a victim, causing it to break and lacerate the ear of the person. The wound required 12 stitches. STZS agreed that he pleaded guilty to the offence of assault.
STZS said that the victim was having an argument with a friend of his. He told the Tribunal: “He tried to attack me with a knife and in self-defence, I did what I did. He had a knife; it was like a sword.”
Counsel said to STZS that he told the previous Tribunal hearing that the victim had a machete. He replied, “Sword and a machete, aren’t they the same?”
STZS said that what he did was not premeditated. He agreed that the first time he raised the claim that the victim had some sort of weapon was before the previous Tribunal hearing, and Mr d’Assumpçao suggested that he was saying that to minimise his offending. STZS said “I didn’t make it up; it was true…I told the police.”
In answer to direct questions from the Tribunal, STZS agreed he was heavily drunk at the time. He said he found the light bulb in his pocket. When asked why he would have a light bulb in his pocket, STZS responded “I had it in my hand.”
Counsel for the Minister put to STZS that he was lying about self-defence and having a light bulb in his pocket. He replied: “100 per cent sure I was in self-defence. I was intoxicated; I didn’t know what I was doing.”
Counsel put to STZS that he was lying when he said the victim had a machete. He responded: “I’m not lying. That was the case.”
The Tribunal then asked STZS how is he able to remember other details of the incident if he was heavily intoxicated at the time. STZS responded: ‘It is true I was drunk. I cannot recall. After that [light bulb incident], I can remember just what happened.’
Counsel asked STZS about him saying to Dr Carroll, when interviewed for a psychiatric assessment, about getting angry and hitting walls in the shower, and asked what he gets angry about. STZS responded: “About all the offences I have committed. I get flashbacks. I am angry with myself and very regretful about what I did.”
Counsel asked if he thought he had unresolved anger issues. STZS replied: “I don’t get angry that easily. I am friendly and get on with everyone. I was trying to express all mistakes that I have made make me regretful.”
Counsel asked STZS about a statement (GD, p 248) where he had dictated to his brother “I have stopped using both substances and I am now engaging for the better”. He agreed that he was at that time pleading for a second chance.
Mr d’Assumpçao asked STZS about a written acknowledgement he signed and dated on 31 January 2019, which states that if he engaged in other criminal conduct it may result in cancellation of his visa. STZS said it was too hard for him to read, and he remembered his case manager simply saying to him “I will tell you something that will make you happy – you’ve got your visa”. He then said: “To be honest, I can’t remember if she read all that to me. She may have. I remember her saying she had happy news”. STZS said he accepted that his case manager may have explained what the acknowledgement meant before he signed and dated it.
STZS agreed that he had finished education in year 11. He said that English is his second language, and that “I couldn’t read or write to the level of year 11.”
STZS said he knew if he offended again his visa was liable to be cancelled. He agreed he was released from immigration detention on 31 January 2019 and offended within two months of his release. He said:
At the time, I didn’t take it seriously. I took everything lightly. I re-engaged with former friends. Now, I’ve been here so long, I have matured. I have to set up strategies with [name and organisation redacted] and have discussed with her how she can help.
It was put to STZS that the promises he is now making are not different from those he made to the Department in 2019 and that nothing has changed except for the passage of time. He responded:
You are right. What I am promising is the same. But I am a different person. I am mature. I have a strategy to work hard and work with my family. Different from what I said before.
STZS said that he was going to start telephone counselling with a Queensland service for past trauma and torture survivors, but was then transferred to Christmas Island. He said: “My mum told me that if I was released, she will take me there. They also give counselling to my mother.”
STZS was asked about a drug and alcohol four-day course he undertook in January 2021. He said it was an on-line course and he received a certificate of completion. The Applicant said it took about two or three hours a day and he was getting help from his roommate at the detention centre: “You listen and after every chapter have to answer questions online. My roommate was reading for me and asking me the questions and I would tell him the answer.”
Counsel for the Minister asked him about submissions that he would be assisted by the Somali Council of Queensland. He said that he had not associated with the Council before but “I now realise it would be very beneficial for me. I didn’t know what sort of assistance they can provide”. He said that a member of the Council had given information to his parents and he had contacted this member when he was in detention in Brisbane.
Under re-examination, STZS was asked more about the light bulb incident and Mr Jeffreys said his understanding of the Applicant’s evidence is that he says he was acting in self-defence, which STZS confirmed. He was then asked why he pleaded guilty to assaulting the victim and responded: “The reason I pleaded guilty was that the person who got injured was bleeding. Based on that, I pleaded guilty. I didn’t have any witnesses who supported my case.”
Mr Jeffreys asked STZS whether he accepted responsibility for the crime of assault to which he pleaded guilty, and he replied: “Yes, I do. I was not supposed to be affected by alcohol. I was not supposed to carry a light bulb to attack the victim. I should have put everything in control.”
Mr Jeffreys asked if he meant that he should have approached things differently, so it did not lead to the incident, to which STZS replied: “Yes, that’s correct.”
Evidence of Dr Andrew Carroll, forensic psychiatrist
Dr Carroll gave evidence as an expert witness. He provided a report dated 16 March 2022, after examining the Applicant and applying the LS/RNR assessment tool to assess risk of re-offending.
Dr Carroll assigned a score of 8 or “very high” in relation to the Applicant’s criminal history. He said this score was based partly on interview and partly on the documented criminal history. He said this was based solely on past events.
Dr Carroll said that the Applicant:
He needs to find a pro-social way to spend his time. I think he also needs a neural psychological evaluation. I think he is capable of both employment and further education. He may need some more accounting if there are cognitive deficits.
Dr Carroll was asked about his score of “zero” in relation to companions, when historically association with others involved in unlawful activity has been “high”. He responded:
This is more to do with the recent past, the past six to 12 months, but I have added a caveat that it would be foolish to say it is not an area of criminogenic need. It seems that his trajectory into antisocial behaviour began at school with similarly marginalised African youth. This needs to be addressed to desist from offending into the future.
Counsel for the Applicant noted that STZS had firmly disassociated from his former group of fellow offenders. Dr Carroll responded:
That is positive, but he has been in prison and detention. The real test of the assertion on the Applicant’s behalf will only be measured when he is back in the community.
Dr Carroll was of the view that STZS needed relapse counselling to ensure he does not resume his alcohol and drug habits of the past. In respect of a pro-criminal attitude, Dr Carroll assigned a score of zero. He told the Tribunal: “I was expecting he would say something about other people. The Applicant took ownership and did not think the authorities had been unfair.”
When asked why a passage of time should make any difference to the Applicant resuming criminal conduct, Dr Carroll said: “I say the passage of time is relevant when the Applicant’s brain has not been exposed to negative substances.”
Under cross-examination, when asked if there was a “real risk” of re-offending, meaning a risk that is not fanciful or remote, Dr Carroll replied: “He has acquired a substantial score related to criminogenic need. I would not say it is fanciful or remote to say he is at risk of re-offending.”
Dr Carroll said that the overall score he assigned was 23, which was high, but below the mean. When asked about STZS’s evidence regarding the light bulb incident, Dr Carroll said if it was accepted, he was trying to rationalise or minimise his offending, it might make the score slightly adverse, but it made “no meaningful difference”. He told the Tribunal:
STZS has a significant criminal history. He didn’t whinge or complain or project. We are talking about one offence when he was a teenager eight years ago. We need some perspective.
Mr d’Assumpçao noted that Dr Carroll had referred in his report to a possible brain injury and asked whether that was beyond the competence of the witness. Dr Carroll responded:
To properly evaluate, there needs to be an assessment by a neuropsychologist which cannot be done by video. We can say it is a distinct possibility. There is a fair amount of evidence that the Applicant has [such an injury] of greater or lesser severity.
Dr Carroll did however stress that he was not an expert in that field and was not proffering an opinion either way, in his capacity as an expert witness.
Evidence of Ms AS, older sister
Ms AS gave evidence that she talks to STZS once a week by telephone or video link. She told the Tribunal she thought he had changed since his last offending in 2019. She said: “He is different, I have seen things in him. He really wants to change, you can tell. Now he takes things seriously.”
Ms AS said that if her brother was released into the community, she would help him. “He fell down in Africa from a tree. I am thinking his memory is not good. I will take him to medical appointments and support him.”
Ms AS referred to her four half-siblings under 18 and said they often spoke to STZS on her phone.
Evidence of Mr MO, family friend
Mr MO gave evidence that he was one of the founders of the Council of Somali Communities Incorporated (‘Council’). He told the Tribunal that the Council was established around 1991 to help Somalis with a refugee background. Mr MO said that the Council provides programmes to support single mothers and young people, including sports, craft classes and education about things like illicit drugs; and they ran a football tournament supported by both the Australian Federal Police and Queensland Police.
Mr MO said the Council has spiritual counsellors and qualified social workers providing support for young people who get involved in crime or drugs. He said that he first met STZS in 2009 when he came to the Council premises with his mother and stepfather and has maintained contact since that time.
Mr MO said he last spoke to STZS about a month ago. He said:
He always apologises for what he did. He was a quiet young boy. He told me he has decided to change his life. We have a range of social workers and advisers who all are waiting for him.
Mr Jeffreys asked Mr MO about a statement (Exhibit A1, p 23) that he did not believe STZS would re-offend. Mr MO responded:
We have discussed what he would do. He promised that this would be the last time. I’ve known him since a child and I believe that. We have a Somali local businessman who runs a butchery and a lot of Somali businessmen [who could provide assistance with employment].
Evidence of Mr AM, the Applicant’s half-brother
Mr AM said he spoke to STZS “every week or so” by phone or video link and kept in touch by text messages.
When asked whether there was a difference in his brother between 2019 and now, Mr AM responded:
Definitely. He has changed a lot. He used to be dismissive. Wouldn’t listen to advice before. Now he’s remorseful and motivated to change. There is a big difference between 2019 and now. He says he will work with [organisation name redacted]. He’s never mentioned this before. That’s why I think he is motivated.
Mr AM said he believed that STZS needs psychological help and he had spoken to people in a named organisation and they would be ready to assist him. Mr AM said he has a wide circle of friends who work or attend university and none of whom have a criminal record, and he thought STZS needs to mix with such friends.
CONSIDERATION
QUESTIONS BEFORE THE TRIBUNAL
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act there are two points to remember. First, the Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. Secondly, both parties are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, the Federal Court said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal therefore must decide two questions. First, whether the Applicant fails the “character test” in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for ‘another reason’.
The mandatory cancellation of the visa
In June 2019, STZS was convicted of the offence of Burglary and commit indictable offence and sentenced to imprisonment for 12 months. It was not in dispute between the parties that this was serious offending that constituted a “substantial criminal record” under section 501(7)(c) of the Act.
Finding in relation to the character test
The Tribunal is satisfied that at the time the Applicant’s visa was cancelled in July 2019 he was serving a sentence of full-time imprisonment in a custodial institution and had a “substantial criminal record” in terms of section 501(6)(a) read with section 501(7)(c) of the Act. STZS does not pass the character test and the Respondent was required to cancel STZS’s visa by operation of law.
THE MINISTERIAL DIRECTION – DIRECTION NO. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the Minister made a direction under section 499, Direction No. 90 (‘the Direction’) which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account, where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
The Tribunal considered the primary and other considerations in the Direction, as relevant to STZS’s personal circumstances, his nationality, and his offending history.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and 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 conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. There is no evidence before the Tribunal that STZS has committed any act of family violence.
By any measure, STZS has amassed an inglorious criminal record as an adult, for such a young man. Many of the offences could be characterised as at the lower end of the spectrum; and they were dealt with by the Courts by a range of judicial tools, including suspended sentences and, eventually, probation. Some are more serious, including the single crime against the person, the assault offence (i.e., ‘the light bulb incident’), and some of the burglary offences where valuable goods were taken. A survey of STZS’s appearances before the Courts might lead to a conclusion that the Magistrates had been very tolerant and had given STZS several opportunities to mend his ways.
Regrettably, although there are substantial temporal gaps in his offending to 2019, there is a fair amount of it. STZS’s record of indifference to orders of the Court by subsequent breaches adds to a sense that he did not take seriously the sanctions and the less punitive tools applied to him by the Magistrates. This inevitably led, in time, to condign punishment and gaol time.
In his responses to questions asked of him by counsel and the Tribunal, STZS repeatedly said that the reasons for his offending were: (a) his youth and immaturity; (b) the people with whom he was associated; and (c) his drug and alcohol misuse. Noting Dr Carroll’s conclusion that he considered STZS genuinely remorseful, counsel for the Minister invited the Tribunal to make a finding that STZS was not compelling in his responses, that he repeated some phrases about remorse, and that he was “somewhat sullen.”
The Tribunal does not take up that invitation. The impression the Tribunal received was not that the Applicant was ‘sullen’. STZS had difficulty expressing himself in English and, when he was encouraged to use the Somali interpreter, he was able to express himself better. The fact that he has repeated in his evidence certain factors that he has identified contributed to his offending conduct, and repeated them several times, should not, in the Tribunal’s mind, tell against him. At the very least, this reveals self-reflection and some appreciation of the drivers which led, on two occasions, to his visa being cancelled.
Counsel for the Minister noted that, although STZS had been detained and had been through the process of making representations for his visa to be restored to him previously, he re-offended two months to the day after being released from immigration detention. Counsel for the Minister urged the Tribunal not to place any weight on the period of detention, given that he had access to supportive family and friends last time, but “failed miserably.”
The Tribunal finds that the Applicant’s criminal record is serious. However, it is a fact that a substantial part of it occurred when he was a child and was dealt with before the Children’s Court and, noting Thornton, that cannot be taken into account where there was no conviction, which was the case in every instance before the Children’s Court. In terms of his adult offending, there is, on the Tribunal’s assessment, a lamentable number of property offences and offences relating to drug taking (noting no possession or dealing offences), but the Tribunal identifies only one offence which can be characterised as a crime of violence. This is what was called, during the hearing, “the light bulb incident.”
The light bulb incident
Before the Tribunal was a Queensland Police Court Brief (GD, p 198) relating to a charge of Assault occasioning bodily harm whilst armed/in company, with the incident occurring in late November 2014. It was accepted by STZS that he pleaded guilty to the offence. The document relevantly read:
At about 11.45pm on this same day, the defendant [STZS] who was heavily intoxicated, approached the residence of [redacted] to enter the unit where he had been staying. The permanent occupant of the dwelling denied the defendant access and told him he could not enter because he had an infant female child inside and he would have to stay at another location until he was sober. The defendant became aggressive towards the elderly occupant, and the neighbour, who had just awoken, has approached the defendant in defence of his neighbour. The neighbour is the victim in this matter.
…
The defendant returned within a few minutes in company with his cousin. The victim started to explain to the defendant that he was not welcome and would need to sleep at his friend’s house until he had sobered up. The defendant was standing behind his cousin and has leapt forward towards the victim and hit him in the face area using a light bulb that he had hidden in his right hand. As a result, the defendant has suffered a large cut to his left ear that instantly began to bleed. The victim has retreated inside the unit and has returned a moment later to observe the defendant’s cousin restraining the defendant. An ambulance was called and transported the victim to the hospital for treatment where he received approximately a dozen stitches to his ear area.
Police attended the scene and arrested the defendant in relation to another matter. Whilst in custody the defendant was questioned in relation to this matter. During this questioning, the defendant admitted to striking the defendant. The defendant stated that he was defending himself when being assaulted by the victim. The defendant stated that he was heavily intoxicated and could not recall how he came to be in possession of the light bulb. The defendant stated that he found it in his pocket and decided to use it.
The defendant stated that he did this using his right hand and that the victim instantly began to bleed as a result. The defendant was released without charge.
…Detectives then obtained witness statements from both the victim and the defendant’s cousin. Versions provided, clearly contradicted the defendant’s version of events. These statements indicated that the defendant was not acting in self defence and had struck the victim with the glass bulb without provocation.
[In] December 2014, the defendant was arrested and charged in relation to this matter.
(Spelling errors corrected.)
Under cross-examination, STZS reiterated evidence he had given to the previous Tribunal, that the victim in this matter had a sword or a machete. He agreed that the first time he raised this was before the Tribunal and said that he had told the police at the time. He agreed in response to direct questions from the Tribunal that he was heavily intoxicated at the time.
Mr Jeffreys submitted that it is not open to the Tribunal to find that the machete/sword evidence is untrue because no sentencing remarks are before the Tribunal, nor the witness statements referred to in the court brief. It was submitted that it is unreasonable to draw an inference that STZS is lying.
It is well established that the Tribunal cannot impugn a conviction by a Court. In this case, the conviction for the assault occasioning bodily harm in 2014 occurred following a plea of guilty by STZS. A plea of guilty means that the accused accepts all the elements of the offence (see Maxwell v The Queen [1996] HCA 96, Dawson and McHugh JJ at [19]). The Queensland Court’s bench book relating to the offence of Assault occasioning bodily harm under section 339 of the Criminal Code 1899 (Qld) relevantly requires that the assault was unlawful, that is not authorised, justified, or excused by law. Provocation and self-defence are defences that may be brought (sections 268, 269, 271, 272 of the Code), but they were not.
The Tribunal does not accept STZS’s evidence that he told the police that the victim in this matter was armed with either a machete, a sword, or a knife. If he had made that claim, it would be likely to have been included in the court brief (written of course without knowledge that STZS would plead guilty). STZS admitted to police, and reiterated in response to a direct question from me, that he was heavily intoxicated during this incident. I consider his memory of what took place is consequently unreliable. It is significant, in my view, that STZS’s cousin (who he said was a friend whom he regarded as a ‘cousin’) told police that STZS was not acting in self-defence. On the material before me, I cannot make a secure finding on whether the victim had some sort of weapon, but on the circumstances of how the offending occurred, I consider it is unlikely.
The evidence of STZS is that he happened to have a light bulb in his pocket that he used to strike the victim. Carrying such a fragile item around in a pocket is not a usual thing, for obvious reasons. I consider his evidence in this respect implausible. I consider that this evidence was a ham-fisted attempt by STZS to either contextualise or minimise the offending of which he pleaded guilty at Court. Given he was heavily intoxicated at the time, he might have reconstructed what he thinks occurred, so I do not make a finding that he lied to the Tribunal about his belief that the victim had some sort of weapon. I do make a finding that he was not candid about why he was carrying a light bulb. In any event, his plea of guilty means STZS accepted at Court that he was not acting in self-defence.
The Direction at paragraph 8.1.1(1)(a)(i) provides that violent and/or sexual crimes are to be viewed very seriously. This 2014 incident is the only violent crime of which STZS has been convicted. There is no evidence of any sexual crimes.
Paragraph 8.1.1(1)(a)(ii) directs decision-makers to view very seriously crimes of a violent nature against women or children. There is no evidence of any such crimes by STZS.
In the Queensland Police court brief, there is a reference to the victim in the 2014 assault being ‘elderly’, which may be relevant to paragraph 8.1.1(b)(ii), where crimes against vulnerable members of the community such as the elderly and disabled are serious, but no submissions to this effect were made by either party and the Tribunal considers there is insufficient evidence to form a conclusion.
Paragraph 8.1.1(1)(b)(iv) directs decision-makers to consider crimes in immigration detention. There was no evidence of any improper conduct by STZS on the two occasions when he has been in immigration detention.
Paragraph 8.1.1(d) requires the Tribunal to consider the frequency of offending and whether there has been any trend of increasing seriousness. The criminal history of STZS as outlined above does show relatively frequent adult offending, and some increase in seriousness, although there are notable time gaps between incidents of offending and appearances in Court.
Paragraph 8.1.1(g) of the Direction refers to whether the non-citizen has re-offended since being formally warned or otherwise made aware in writing about the consequences of further offending on his or her migration status. This goes against STZS because he re-offended two months to the day after being released from immigration detention at the end of January 2019. Counsel for STZS gallantly tried to suggest that STZS may not have appreciated the importance of him signing and dating an acknowledgement to the Minister’s Department that adverse conduct in the future might affect his migration status (GD, p 15). But STZS, himself, admitted that his case manager, who conveyed to him the news that the Respondent’s delegate had decided to revoke the cancellation of his visa at that time, ‘may have’ explained to him what he signed. When asked to read the acknowledgement himself during the hearing, STZS was unable to, and I accept this was genuine and illustrated his poor literacy. However, I find that he did know he had been warned, and did have an appreciation that further offending might have a consequence in terms of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. There is a risk, and it is a real risk and one which Dr Carroll acknowledged was not remote or fanciful.
The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
There was a range of supportive statements in evidence before the Tribunal, as well as the supportive oral evidence of his mother and two of his siblings, and a Somali community leader. It is to the Tribunal’s mind significant that STZS has now been in custody of some sort for a significant length of time, well over three years. As recorded above, there is no evidence of antisocial conduct while in detention. Without criticising administrative decisions made by the Minister’s Department, the Tribunal notes that the transfer of STZS from detention in Brisbane to Christmas Island meant that he was unable to have family visits; nor apparently participate in the trauma counselling by telephone being offered by the Queensland organisation.
I consider STZS does appreciate the seriousness of his offending, particularly in the context of the risk to his visa. His good conduct over several years in detention reflects that realisation. He was a little inarticulate in some of his responses about plans for rehabilitative courses and counselling, but I consider that inarticulacy relates to grappling with English (his third language) and possible limitations on his oral expression generally. I did not detect any lack of sincerity in his commitment. Dr Carroll’s conclusion that only time in the community will really show whether he will not recidivate, and I agree with that conclusion.
Overall, the Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
The Respondent submitted that this primary consideration is not engaged. There was no evidence before the Tribunal of any offending or conduct that would fall within the category contemplated in this part of the Direction.
The Tribunal finds that this primary consideration is not engaged and consequently weighs neutrally.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors, as relevant, set out in paragraph 8.4(4) of the Direction. These include whether the Applicant has a parental relationship with the children, the extent to which the Applicant is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal is satisfied to determine that, at the time of this decision, four minor children fall into the category which mandates consideration of their best interests in this part of the Direction. They are the four half-siblings of STZS; AJ, AD, AG, and AB. AJ and AD are twins aged 14; AG is 12, and AB is 10. There was no evidence before the Tribunal of any distinguishing characteristic that would lead to special consideration of the best interests of a stipulated half-sibling, so the Tribunal will consider them all together.
The evidence of the Applicant and the other witnesses was that STZS speaks to all his half-siblings regularly either by telephone or by video. The evidence that they are keen for him to return to the family home is accepted, as is the evidence that they are unaware of the reason for his absence because they have not been told owing to their young age.
The Direction, at paragraph 8.3(4) requires decision-makers to take certain factors into account. I note that the relationship between STZS and his minor half-siblings is non-parental, and that there have been long periods of absence. Part of this is because, in answer to direct questions from the Tribunal, STZS said he had been living away from home for periods. Part of the absence may be allocated to time in prison, either on remand or serving a sentence. Part may be allocated to time in detention. However, where an applicant had been transferred to detention in a place where his family cannot easily visit, including potentially minor siblings, the Tribunal does not count this as a factor diminishing any bond.
In terms of other persons performing parental roles, the minor children have a father and mother at home: namely, the Applicant’s mother, and his stepfather. Overall, because of the consistent evidence of the witnesses, the Tribunal makes a determination that it would be in the best interests of the minor children for the Applicant’s visa to be restored.
This primary consideration weighs in favour of the Applicant, but not heavily so.
Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
None of the specific categories of identified offences listed in paragraph 8.4(2)(a) to (f) of the Direction is relevant to STZS’s offending.
The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the “expectations” of the Australian community may be. The expectations articulated in the Direction are “deemed”; they are what the executive government has declared are its views, not what a decision-maker, including this Tribunal, may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a “norm”, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
STZS has offended steadily over the years to 2019. Some of the offending, as outlined earlier in these reasons, may be regarded as minor offending, or as a Magistrate described it – citing one instance as being the theft of a shopping trolley – “silly” offending. But STZS has accumulated quite a lot of it. One of the offences was violent. The Tribunal considers that the expectation of the community would be that his visa be revoked. While in the ordinary course the weight of that expectation might be lessened by STZS’s youth in relation to much of the offending, and the nature of it, the fact that he returned to offending after having his visa cancelled and restored, and when he knew it might jeopardise his visa does increase the weight that might otherwise apply in this primary consideration.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, and somewhat heavily so.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including;
(i)the strength nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations (paragraph 9.1)
International non-refoulement obligations relate to a case where a person is in prospect of being returned to a country where they may be at risk of a specific type of harm. STZS, in this case, would be returnable to Ethiopia, his country of citizenship.
Mr Jeffreys submitted that, because STZS held a Class XB (Subclass 200) refugee visa, he has been assessed to be a refugee by a process in the Minister’s Department. The Respondent submitted, in disagreement, that STZS’s visa was granted to him as an immediate family member of Ms AW, who was granted a subclass 200 visa; and that the criteria for this subclass did not require any assessment as to whether STZS met the definition of a refugee under the 1951 Convention relating to the State of Refugees (‘the Refugees Convention’).
There is no evidence before the Tribunal that STZS was assessed under the criteria in the Refugees Convention. In STZS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1140 (the Federal Court judgment relating to the remittal of this matter), Middleton J said, at [42]:
The applicant [..] contends that the previously recognised persecution of the applicant’s family ought to have been the starting point for an inquiry as to whether the circumstances giving rise to that recognition had ceased to exist. That is to say, the Tribunal ought to have started with a presumption that non-refoulement obligations continued to be owed to the applicant and his family. The applicant says this point was squarely made in the applicant’s statement of facts, issues and contentions and that the Tribunal’s response to the submission (at [216]) demonstrated a fundamental misunderstanding of the basis for refugee status.
However, the difficulty with the applicant’s submissions is that it was only ever the applicant’s mother who was assessed as a refugee. At [216] the Tribunal stated:
The Applicant’s visa was not granted on the basis that his family were subject to persecution; it was granted on the basis that he was, at the time, a dependent of his mother who was assessed to be a refugee. Whether the Applicant is presently owed non-refoulement obligations, or is at risk of harm or hardship, depends on the facts at the time the claim was made. The Applicant’s visa was not granted on the basis that his family were subject to persecution: it was granted on the basis that he was, at the time, a dependent of his mother who was assessed to be a refugee.
His Honour then said, at [45]:
However, the Tribunal goes on to observe that the applicant’s visa was granted on the basis that he was a dependant of his mother who was assessed to be a refugee. This is the fundamental point. The applicant himself had not been assessed as a refugee and so there is no reason why the Tribunal ought to have proceeded from the premise that non-refoulement obligations presumptively continued. Rather, the appropriate starting point for the Tribunal was to look at the evidence of the facts that existed at the time of its decision so as to determine whether the applicant’s claim’s give rise to international non-refoulement obligations, which it in fact did.
And at [49]:
It should be observed that the obligation to consider non-refoulement obligations does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed: see, eg, Ali v Minister [2018] FCA 650 at [28], [34]; Greene v Assistant Minister [2018] FCA 919. Rather, the Tribunal is required to give meaningful consideration to the applicant’s representations on the claimed risk if returned to Ethiopia: Omar at [34]. Nonetheless, the Tribunal did so in this instance and found (at [273]) that non-refoulement obligations were not owed to the applicant.
Mr d’Assumpçao submitted that it was the decision in the previous Tribunal that has been set aside by the Court, and where that Tribunal made findings which were not dislodged by the decision of the Court, and especially where the basis of those findings was expressly accepted by the Court, such findings may be submitted to still be valid. I accept that submission.
Mr Jeffreys submitted that there is a real chance that a breach of Australia’s international obligations will lead to serious harm or death to STZS; that such a breach is detrimental to Australia’s reputational interests and that, irrespective of Australia’s reputational interests, such a breach is contrary to the national interest.
In the ASFIC, the Applicant submitted:
(a) The Applicant’s home is Australia. All his immediate family are Australian citizens and live in Australia. Having fled Ethiopia as an infant, the Applicant has no connections with that country;
(b) The Applicant is illiterate, and having experienced a traumatic childhood, and suffering ongoing mental health issues, he requires medical assistance, counselling and other support in Australia. In addition to the potential grave human rights abuses he would face in Ethiopia, the Applicant will face significant detriment and impediments in establishing a life in Ethiopia;
(c) The Applicant is a refugee. He relies on Australia for his safety. If he were removed to Ethiopia, he would face persecution and significant harm, including torture and death;
(d) For this reason, removal of the Applicant to Ethiopia would breach Australia’s international obligations. This would have profound consequences for the Applicant (as noted above), and would damage Australia’s reputation and standing in the global community;
(e) Moreover, should the original decision be affirmed, and should the Applicant apply for a protection visa, there is a real prospect that the Applicant will face detention in Australia indefinitely. This will cause serious psychological harm to the Applicant and breach Australia’s international obligations. These outcomes have the potential to cause great reputational damage to Australia, and are contrary to Australia’s national interests; and(f) For the above reasons, non-revocation would have a damaging impact on his family, including minor children in the family, if he were either removed to Ethiopia, or remain in indefinite detention in Australia. The best interests of his young siblings requires [sic] the Applicant to be with them in Australia.
Some of the claims in this list should more properly be dealt with under other considerations in the Direction, namely the links to the Australian community, the extent of impediments if removed from Australia and the best interests of minor children affected by the decision.
In his statement dated 17 December 2021 (Exhibit A1), STZS said he knows nothing about Ethiopia except that his family is Oromo. He further said:
I know there is tribal violence in Ethiopia. There is a war going on in Ethiopia now. I hear that the Amharic and the Tigray are fighting. I am not sure who the Oromo have joined. My step dad listens to the Oromo News and he said that now the Amharic and the Oromo are against the Tigray, but that before the Amharic and the Tigray were together. I don’t know who is who, or what the war is about or why they are fighting each other. I am afraid what that will mean for me, to go back to a place where there is tribal violence and war, when I have no connections to anyone or anything and no understanding of what is going on. I wouldn’t know the right things to say not to get hurt. If someone asks me who I support I wouldn’t know what to say.
STZS also suggested he would be seen to be rich because he has lived in a western country for a long period and because he dresses in western attire, when “I think people in Ethiopia wear traditional dress”. STZS stated that he does not know if the mental health or other health support he needs would exist for him in Ethiopia, and that he does not think he will be “able to last long” if he is forced to return to that country.
Before the Tribunal was the DFAT Country Information Report – Ethiopia (‘CIR’), dated August 2020. It records that Oromo influence has expanded significantly since the election in April 2018 of Abiy Ahmed as Prime Minister, which is the first time in modern history an Oromo has led the country. At the time the CIR was written, Oromo were the single largest ethnic group in the federal Council of Ministers; and Oromo political prisoners, including some arrested in the 2014-2018 protests, had been released. Relevantly, at paragraph 3.7, the CIR states:
The OLF, an opposition party dedicated to Oromo self-determination, was delisted as a terrorist organisation in June 2018 and returned from exile in Eritrea in September 2018. The OLF signed a peace agreement with the federal government in August 2018 and agreed to disarm. It now operates as a registered political party and plans to contest forthcoming national and regional elections. Despite these gains, historical grievances remain…Ethnic Oromos have been involved in many of the inter-ethnic clashes and associated displacement that has occurred since 2018, both as instigators and victims…
The CIR records, at paragraph 2.51, that inter-ethnic clashes along the border between Oromia and Somali states have displaced more than 1 million people since 2017. The CIR goes on to say that there have been intra-Oromo clashes and the targeting of homes and businesses belonging to non-Oromos, with at least 70 people killed and 15,000 displaced in September 2018. The Tribunal notes, in passing, that this is a refreshed CIR from the one which was before the Member (as the learned Senior Member then was) who first heard STZS’s matter, and the new CIR includes advancements in the place in Ethiopian society of the Oromo, among other changes.
I am satisfied that STZS has well-founded concerns about the prospects of being returned to Ethiopia, but I am not satisfied on the evidence before the Tribunal that he has made out a case for being at real risk of a specific type of harm, in particular because of what could be called a stabilisation in the place of the Oromo in Ethiopia and the election of an Oromo to head the government of the country. I accept that STZS has other concerns relating to his potential return, but these other concerns are properly dealt with later in these reasons.
I do not consider that the claims made by STZS rise to the level of agitating the provisions of the Refugees Convention, nor the others mentioned in this part of the Direction, so I find that this consideration weighs neutrally in the Tribunal’s assessment. In terms of the likelihood of indefinite detention of STZS, that will be considered later in these reasons.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments STZS may face if removed from Australia to Ethiopia in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of the country. The Tribunal must take into account the Applicant’s age and health, any substantial language or cultural barriers and social, medical, or economic support available to him if repatriated.
STZS did not report any physical ill health. He did tell the Tribunal he has been depressed; partly because of the length he has been in immigration detention and partly because of his separation from family, particularly since being transferred to the Territory of Christmas Island. He said that he had started taking some medication at the detention centre to aid his depressive feelings but had ceased the course.
STZS told the Tribunal that he is fluent in Somali and speaks some Oromo. He also speaks English, if not fluently, enough to get by. His ability to read English is assessed by the Tribunal as significantly limited, and the evidence before me supports a finding that he is functionally illiterate. Ms AW said that she speaks Somali with STZS in the home. It was notable that once STZS reverted to using the Somali interpreter during the hearing, he was better able to express himself and understand questions and propositions put to him by counsel and the Tribunal itself.
In terms of established mental health conditions, it was accepted by both parties that STZS suffers from PTSD. In his report (Exhibit A2, p 25), Dr Carroll diagnoses STZS’s condition as:
Chronic Post-Traumatic Stress Disorder (DSM-5 309.81); and
Mixed harmful use of substances.
Dr Carroll expands upon this (Exhibit A2, p 26) as “Chronic PTSD which is moderate in severity but which has been present from childhood onwards”. He recommends that STZS be reassessed by a treating psychiatrist with consideration for a course of antidepressant medication and culturally appropriate psychological treatment addressing his trauma history using evidence-based psychotherapy.
At paragraph 149 of his report, Dr Carroll writes:
I cannot exclude the possibility that there is also an underlying Neurocognitive Disorder as a result of his childhood head injury.
In the part of the report about whether he considered any mental health condition contributed to the patient’s offending behaviour and ability to appreciate the seriousness or consequences of his actions, Dr Carroll states that if STZS does suffer from a Neurocognitive Disorder “this may have had a further impact by reducing capacity for good judgment.”
In his conclusions about treatment or strategies to reduce a risk of re-offending in any manner, Dr Carroll wrote, at paragraph [165] of his report:
It would be appropriate for [STZS] to be assessed by a neuropsychologist in order to ascertain his cognitive strengths and weaknesses.
Mr d’Assumpçao asked Dr Carroll whether he was expressing a view as an expert witness on the possibility of a neurocognitive disorder, and Dr Carroll said he was not. The Respondent then submitted to the Tribunal that no regard should be had to this part of Dr Carroll’s report. The Respondent drew the Tribunal’s attention to the decision of Charlesworth J in Pallett v Commonwealth of Australia, Department of Human Services –Centrelink [2017] FCA 1132 (‘Pallett’). The Tribunal does not consider that Pallett is apposite. Her Honour’s judgment related in part to the Evidence Act 1995 (Cth) and especially section 79 of that Act – opinions based on specialised knowledge. Section 33(1)(c) of the AAT Act provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such matter as it thinks appropriate.
The Tribunal President’s Guideline Persons Giving Expert and Opinion Evidence expands upon this in terms of the operation of the Tribunal, at paragraph 1.2:
The AAT is not bound by the rules of evidence and may take into account any matter that is relevant to the issues to be determined. In particular, the AAT is not bound by the rules relating to opinion evidence and may have regard to material that would not be admissible in a court applying the rules of evidence. The AAT must determine the weight that should be given to any evidence that is before it.
The Tribunal does not accept the Respondent’s submission in this regard. Dr Carroll is not a lay witness. At the outset of his evidence, Dr Carroll confirmed to the Tribunal his understanding of the Tribunal President’s Guidelines for the giving of expert evidence. Dr Carroll is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and a specialist medical practitioner in psychiatry with an endorsement in forensic psychiatry. In the Tribunal’s view he is therefore completely capable of assessing the comprehension and thought processes of patients or, in this case, a person sent to him to examine for a professional assessment. Dr Carroll expressed a view that STZS may have a neurocognitive disorder, but that a confirmed diagnosis would require face-to-face assessment by a specialist neuropsychologist. The Tribunal does not accept that this view carries no weight. He, as a specialist medical professional, thought it an important enough factor relating to the medical history of the Applicant to include it in his report. I also note Dr Carroll’s evidence that such an assessment cannot be undertaken by video link, so, therefore has not been able to be undertaken since STZS has been in detention.
There is an established history suggestive of some cognitive deficit. For instance, I note that the learned Deputy Chief Magistrate stated in sentencing STZS in August 2018 (GD, p 68):
I bear in mind that you may have undiagnosed mental health issues that are being investigated and you have a limited education, having spent time in the special education unit at the school that you attended.
The Tribunal makes no finding more than that STZS may have a long-standing neurocognitive disorder, which requires further specialist tests for any settled diagnosis.
The CIR reports at paragraph 2.25 that it is estimated by the Ethiopian Psychiatric Association that 25 million citizens of that country were suffering some form of mental disorder. The Association further estimates that only 10 per cent of this number had received any form of treatment and only 1 per cent had received specialist care. The CIR states that mental illness carries a significant social stigma and those suffering from mental illness face discrimination in employment, education, and housing. It states that although there are some mental health services available, particularly in Addis Ababa, private clinics are financially prohibitive for the average person. There is one specialised psychiatric hospital in the capital.
STZS admitted a history of abuse of illicit drugs and alcohol. While there is no evidence in his criminal history of any drug possession or dealing charges, he has been convicted of drug-associated offending in relation to possession of drug paraphernalia. At the previous Tribunal hearing, STZS said that he was introduced to alcohol and drugs by a friend and first used “ice” in 2015 after being released from prison in relation to the assault charge (Exhibit R2, p 11). He said in a statement (GD, p 257):
In 2015 I committed an assault and went to prison. After I got out I went back to my friends and starting drinking again. Then a friend introduced me to Ice, and everything went further downhill from there. I started taking Ice more and more and became addicted to it. I took it every day and would spend all my money on buying Ice. I did not work and began committing crimes so that I could get money to buy Ice.
The delegate making the reviewable decision refers to “a traffic matter” (driving under the influence of a drug), for which STZS was fined $1,000 and had his driver licence disqualified, but also notes that infraction was not included in the national criminal history check. In Court in July 2017, a Magistrate referred to STZS’s problems with alcohol and drug use and association with people who “led him astray”.
It would seem to the Tribunal that, while there is some admission of drug use, STZS’s greater challenge has been the abuse of alcohol; which led to him offending on occasions when he was frequently heavily intoxicated, including in the assault offence. In his personal circumstances form, STZS stated that he had stopped using alcohol and drugs. There is no evidence before the Tribunal of STZS using illicit drugs or drinking alcohol while in prison or immigration detention. On the documentary evidence, STZS appears to have been in prison and then detention from 14 May 2018 until the end of January 2019; and then he re-entered custody at the end of March 2019 and has been in prison and then detention since. This second period is now around three years, which gives some credence to STZS’s intentions and claims to keep away from alcohol and drugs; both of which, while not readily available, are accessible in both settings. I observe that the delegate (GD, p 51) noted in STZS’s favour that there is no information he has been involved in adverse incidents in custody or detention.
Paragraph 9.2(1) of the Direction requires the Tribunal to use, as a yardstick, impediments to a non-citizen in establishing themselves and maintaining basic living standards; not in the context of what is available in Australia but what is generally available to other citizens of the country of reference, in this case Ethiopia. However, the Tribunal considers that any special characteristic or feature of a non-citizen should properly be taken into account where that characteristic or feature may have a significant effect on this “establishment and maintenance” in the country of reference.
In this case, STZS had an historically suspected diagnosis of PTSD. That diagnosis has now been confirmed by a forensic psychiatrist and was not questioned by the Minister. It is a chronic condition. It may also be that he suffers from a neurocognitive deficit of some kind, something which would require further specialist assessment and diagnosis. Care for PTSD is significantly limited in Ethiopia, as reflected in the contents of the CIR, extracts of which are quoted above. The Tribunal determines that on the CIR’s general conclusions about the state of health care in Ethiopia, access to a neuropsychologist would also be restricted and, if available, the cost may be prohibitive.
These special factors lead the Tribunal to conclude that this consideration weighs very heavily in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on victims and family members of victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this is the case.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider any impact on 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. STZS arrived in Australia at the age of 12, having spent most of his life in a series of refugee camps in Kenya. He attended school here up to year 11, but apparently did not complete that year. His mother and other family members are all Australian citizens, and several of his half-siblings were born in Australia.
The Tribunal takes into account the trauma directly inflicted on Ms AW by the violent death of her first husband (the Applicant’s father) and her own kidnapping; and indirectly inflicted on STZS and his oldest sister in their flight from Ethiopia and early childhood as displaced persons in Kenya. The only relative they had any knowledge of being in Ethiopia, an uncle of the Applicant’s stepfather, has died since the first Tribunal hearing.
The Tribunal has reviewed the several statements submitted by STZS’s direct family members and is satisfied that there would be a very significant impact on the Applicant’s mother, stepfather, sister, half-sisters, and half-brothers if his visa is not restored and he is returned to Ethiopia.
This sub-consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
STZS does not have a sustained work history. He has a desire to complete his higher schooling at TAFE and study to be a motor mechanic. He said he had “done some work” in this area before, but there was a paucity of detail before the Tribunal. This sub-consideration therefore weighs neutrally.
However, overall, this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Additional consideration – prospects of prolonged detention
The Applicant submits that a consequence of the Tribunal affirming the delegate’s decision would be that STZS is subject to ‘indefinite’ detention.
The Respondent submitted that indefinite or prolonged detention is not an immediate consequence of a non-revocation decision – because the Applicant can apply for a protection visa. However, the Respondent conceded that STZS would “most likely continue to be detained” whilst the assessment of any protection visa application is made, subject to any grant of a bridging visa or the Minister exercising his powers under sections 195A and 197AB in favour of STZS. The Respondent further submitted that if STZS does not apply for a protection visa and the Tribunal concludes that Australia’s non-refoulement obligations are not engaged, the immediate legal consequence of a non-revocation decision would be a removal of the Applicant under section 198 of the Act.
Mr Jeffreys submitted that the prospects of STZS applying for a protection visa is speculative and that there is no evidence that the Applicant will do so. However, he further submitted that the consequence of an application for a protection visa, if there is a non-revocation decision, is that STZS would be detained in Australia indefinitely.
The Tribunal is reluctant to adopt the use of the word ‘indefinite’ if it is suggested to mean detention ‘without end’. Prolonged detention is a however not only possible but likely, should the Applicant decide to apply for a protection visa, depending upon how long assessment of such an application takes. However, in this event, there are two hypotheses in play: whether STZS applies for a protection visa (there is no indication of his intentions either way); and, if so, how long might the Minister’s Department take to consider and decide upon any such application (there is no material before the Tribunal about that). It is also always possible, if perhaps unlikely, that STZS will request to be voluntarily removed from Australia.
However, accepting that there is no evidence before the Tribunal that the Minister will or might issue a residential determination or bridging visa, or exercise any other of the discretionary powers available to him under the Act, the reality is that in the event his visa is not restored, STZS could remain in detention for an unknown further period. Dr Carroll’s opinion is that this would be detrimental to his mental health. The Tribunal accepts this professional opinion.
On this basis, the Tribunal finds that this additional consideration weighs in favour of revoking the cancellation of the visa.
SUMMATION
In terms of the considerations the Tribunal is required to address in the Direction, the Tribunal has found that the primary consideration relating to the protection of the Australian community weighs against revoking the mandatory cancellation. The primary consideration relating to family violence committed by the Applicant is not relevant and weighs neutrally. The primary consideration relating to the best interests of affected minor children in Australia weighs in favour of the Applicant, but not as strongly as it might if he was in a parental role in relation to these children. The primary consideration relating to the expectations of the Australian community weighs against revoking the mandatory cancellation.
In relation to the other considerations set out in the Direction, the Tribunal has found that, on the evidence and submissions put to it about Australia’s international non-refoulement obligations, the material does not rise to the level that would engage those obligations. The consideration relating to the extent of impediments if removed weighs very strongly in favour of STZS, owing to his mental health condition. The consideration relating to impact on victims is not relevant and weighs neutrally. The consideration relating to links to the Australian community weighs heavily in favour of revocation. The additional consideration that the Tribunal has addressed, the prospects of prolonged detention, weighs in favour of revocation because of the detrimental effect there would be on STZS.
Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than other considerations. The Tribunal in considering whether there is “another reason” under section 501CA(4)(b) of the Act necessarily must take into account the totality of the Direction, and any other relevant factor consistent with the Act. Referring to an earlier but relevantly similar version of the Direction, the Full Court of the Federal Court of Australia said in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at 473 [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
The Full Court of the Federal Court (Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35]) has held that the Tribunal would err if it concluded that an “other consideration” in the Direction was incapable of outweighing a primary consideration. The Tribunal is satisfied in this case that the extent of impediments that would face STZS, in the circumstances of a man with a chronic psychiatric condition, being returned to the country of reference which on the objective information of the Department of Foreign Affairs and Trade has inadequate treatment facilities for the proper care of that condition, rise in the circumstances of the Applicant in this particular case to the level of being determinative. The Tribunal makes that finding aware of the live prospect of STZS re-offending but also in the knowledge of protective factors in which he commits to engage to prevent that occurring.
The consequence of this finding is that the Tribunal is satisfied that there is another reason, in the terms of section 401CA(4)(b)(ii) of the Act, why the decision to cancel STZS’s visa should be revoked.
DECISION
Under section 43(1)(c)(ii) of the AAT Act the Tribunal: –
(a)sets aside the decision of the delegate dated 26 February 2020; and in its place
(b)substitutes a decision that the mandatory cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
I certify that the preceding 215 (two hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 16 May 2022
Dates of hearing: 17 January 2022, 19 and 20 April 2022 Counsel for the Applicant: Mr Paul Jeffreys Solicitors for the Applicant: Refugee Legal Counsel for the Respondent: Mr Paul d’Assumpçao Solicitors for the Respondent: Sparke Helmore Lawyers ANNEXURE A – SCHEDULE OF EXHIBITS
Respondent’s bundle of documents, lodged 30 November 2021 Exhibit R1
(Also referred to as ‘GD’ documents)
Transcripts of hearing on 19 and 20 May 2020 Exhibit R2
DFAT Country Information Report – Ethiopia, dated 12 August 2020 Exhibit R3
Applicant’s tender bundle, lodged 12 January 2022 Exhibit A1
Applicant’s supplementary tender bundle, lodged 12 April 2022 Exhibit A2
Letter of instruction to Dr Andrew Carroll, dated 9 February 2022 Exhibit A3
1
9
0