TCXM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 2820
•22 August 2022
TCXM and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2820 (22 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4460
Re:TCXM
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 22 August 2022
Date of Written Reasons: 26 August 2022
Place:Melbourne
The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of [redacted] – fraudulent passport on entry to Australia – where Applicant granted Protection Class AZ (Subclass 866) visa – convicted of murder – failure to pass good character test – substantial criminal record –where Applicant disputes jury conviction for murder – mandatory visa cancellation – non-revocation – violent offending – family violence – new evidence suggesting possible breach of Article 1F of Refugees Convention – misconduct in custodial settings – where Applicant owed non-refoulement obligations – prospect of indefinite detention – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)Serious Offenders Act 2018 (Vic)
Cases
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Fardon v Attorney-General (Qld) (2004) 223 CLR 575
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Honeysett v The Queen (2014) 311 ALR 320
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Nathanson v Minister for Home Affairs [2022] HCA 26
O’Keefe v Calwell (1949) 77 CLR 261
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration [2022] FCA 921
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Department of Human Services, Corrections Victoria and Community Offenders Advice and Treatment Service (COATS), ‘COATS, Community Correctional Services and Drug Treatment Services Protocol’ Victorian Government Library Service (Web Page) 23 October 2009 < Microsoft Word - Protocol COATS april 09 final.doc (vgls.vic.gov.au)>
Dr. Robert Hare, Hare Psychopathy Checklist-Revised: 2nd Edition (PCL-R) (Clinical Rating Scale, 2003)
Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3) (Clinical Assessment Tool, 2013)
Supreme Court of Victoria, Practice Note SC R 3: Expert Evidence in Criminal Trials, 30 January 2017 < Advisory Council, “Imprisonment,” FOR DECISIONSenior Member A. Nikolic AM CSC
26 August 2022
BACKGROUND
By virtue of his status as a person whose protection visa has been cancelled, the name of the Applicant in this matter is replaced by the anonym TCXM.[1] Certain details tending to identify TCXM have been redacted or are referred to in general terms.
[1] Section 501K of the Migration Act 1958 (Cth) (“the Act”).
The Applicant is a citizen of [redacted], where he was educated and undertook military service. He then lived in another country where he claimed to have been a successful businessman.[2] The Applicant travelled to Australia on a fraudulent passport.[3] His application for a visa was refused, but a former Tribunal decided he was owed protection and granted him a visa.[4]
[2] Exhibit R1, 115.
[3] Ibid, 47 [2]; 753 [Identity Assessment]; 755 [Migration History]; 761.
[4] Ibid 755-756.
While living in Australia the Applicant met and married a woman. He commenced but failed to complete a process to convert to her religion.[5] Within two years of being granted a protection visa, he murdered his wife.[6] Approximately a week later, while professing not to know anything about her whereabouts, the Applicant applied for Australian citizenship. Two days later he was arrested and charged with murder,[7] following which he spent almost two years on remand. His application for Australian citizenship was never granted.[8]
[5] Ibid 764.
[6] Ibid 43.
[7] Ibid 756.
[8] Ibid 152.
Following a lengthy jury trial, the Applicant was found guilty of premeditated murder and sentenced to imprisonment exceeding twenty years.[9] His appeal against the sentence was rejected by the Court of Appeal.[10]
[9] Ibid 47 [4].
[10] Ibid 54-57.
The Applicant has used multiple names while living in Australia, which includes two formal name changes.[11] He also converted to a different religion about a decade ago.[12]
[11] Ibid 43; 148-149; 588; 712; 753-754.
[12] Ibid 441.
On 23 July 2015, the Respondent wrote to advise the Applicant that his Protection Visa was mandatorily cancelled under s 501(3A) of the Act (“cancellation decision”).[13] He was invited to make representations to have the cancellation decision revoked and did so within the permissible period.[14]
[13] Ibid 58-62.
[14] Ibid 113; 281-282, 314, 365, 407, 443, 455, 503, 524-525, 577, 603; 673.
The Applicant elected not to apply for parole when eligible and completed his entire sentence.[15] This included “a significant amount of time in management units”.[16] He was taken into immigration detention about three years ago where he has since remained.
[15] Ibid 262-264.
[16] Ibid 80 [80].
In early 2020 the Minister, acting personally, decided not to revoke the cancellation decision. In late 2020 the Federal Court quashed the Minister’s decision by consent and remitted the matter for determination according to law.[17]
[17] Ibid 739-741; 751-792.
In early 2021 the Respondent advised the Applicant that after an International Treaties Obligation Assessment (“ITOA”), he was found to engage Australia’s non-refoulement obligations because of his religious conversion.[18]
[18] Ibid 753-792 [782].
In May 2022, a delegate of the Minister advised the Applicant that the mandatory cancellation of his visa would not be revoked (“non-revocation decision”).[19] The Applicant has asked the Tribunal to review this.[20]
[19] Ibid 7-9.
[20] Ibid 1-6.
HEARING
The hearing was held in the Tribunal’s Melbourne Registry by videoconference over four days between 16 and 19 August 2022. The Applicant was represented by Mr Ray Turner, a solicitor with Turner Coulson Immigration Lawyers. The Respondent was represented by Ms Kylie McInnes of counsel, instructed by Sparke Helmore Lawyers. On 24 August 2022, the Applicant advised the Tribunal that Turner Coulson Immigration Lawyers no longer represented him and requested that any future correspondence be sent directly to him.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law. The 84th day falls on Monday 22 August 2022, which is the next working day after the hearing ends. It was not possible, given the extensive evidence in this matter, to provide suitable written reasons within the time available. The Tribunal therefore decided to affirm the reviewable decision by the 84th day and these written reasons followed within a week. The Full Court of the Federal Court of Australia has endorsed this approach in comparable circumstances.[21]
[21] Khalil v Minister for Home Affairs (2019) 271 FCR 326 at [48].
ISSUE
Because of the Applicant’s conviction and sentence of imprisonment exceeding the threshold statutory period, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[22] The Tribunal “stands in the shoes of the original decision-maker” but considers the available evidence “at the time of the Tribunal’s decision”.[23]
[22] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[23] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 has reflected with approval upon the reasoning in Viane[24] and, at [27], identified the following principles as relevant to the statutory task conferred by s 501CA(4):
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[24] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Ministerial Direction 90
In making its decision, the Tribunal must comply with the ministerial direction, made by the Minister under s 499(1) of the Act, and known as “Ministerial Direction 90” (the Direction).[25]
[25] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies as primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent or greater weight than a primary consideration.[26]
[26] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[27]
EVIDENCE
[27] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)G-documents from the Respondent numbering 830 pages;[28]
(b)Supplementary G-documents from the Respondent numbering 714 pages;[29]
(c)Applicant’s Asthma Management Plan dated 2006;[30]
(d)Letter from the Applicant’s religious mentor;[31]
(e)Report of psychologist Mr Jeffrey Cummins dated 11 August 2022, email from the Applicant dated 30 June 2022 initiating Mr Cummins’ report, HCR-20 worksheet, and cover page in accordance with the Tribunal’s Guideline on Persons Giving Expert and Opinion Evidence.[32]
[28] Exhibit R1.
[29] Exhibit R2.
[30] Exhibit A1.
[31] Exhibit A2.
[32] Exhibit A3.
Applicant’s evidence
The Tribunal received an email from Turner Coulson Lawyers on 22 July 2022, stating that the Applicant relies on three statements in the G-documents as his statement in this proceeding.[33] These collectively number over 70 pages and consist of documents he sent to the Respondent between July 2019 and July 2021. The Applicant adopted these statements as true and correct. The Tribunal has also considered other documents from the Applicant numbering several hundred pages between August 2015 and December 2020.[34]
[33] Exhibit R1, 364-406; 503-586.
[34] Ibid 113-275; 276-280; 281-290; 314-363; 364-406; 407-442; 443-454; 456-502; 587-594; 681; 686-687; 697; 703; 726-727.
The Applicant’s oral evidence during the hearing is now summarised.
Life prior to arrival in Australia
The Applicant said he was a “combat soldier” prior to arrival in Australia[35] and served on the “worst frontline” because of “refusing to attend praying”, not forcing conscripts under his command to attend prayers, and being caught “reading a book about Marxism”.[36] He claims to experience nightmares because of the “horrible things” he did,[37] and referred to a recent diagnosis of Posttraumatic Stress Disorder (PTSD) by psychologist Mr Cummins, who recorded the Applicant as stating:
“…like I got taught that even if an [enemy] soldier had their hands up, we still had to kill that person”.[38]
[35] Exhibit R1, 19 [65], 121, 140, 464.
[36] Ibid 460-461.
[37] ASFIC, 9 [45].
[38] Exhibit A3, 7 [21].
The Applicant elaborated on his combat experiences during oral evidence:
“I had to do horrible things in the war. For example. Secure and clearance of the bunker, when we were gonna attack them…when I go in, anybody inside I woulda killed. Even if were putting hands up. Because it’s happened before somebody before throw grenade…you cannot trust them, because they are injured, they would throw grenades. For example, there are horrible, horrible things, I’m ashamed of it, that…a person for example put his hands up and surrendered…but you don’t trust. You think…he’s got a gun behind him, so you shoot him. But I live with it. I live with it… every day. I did horrible things over there. Had no choice. I didn’t know other things. This is what they told me to. I didn’t know”.
Arrival in Australia
The Applicant agreed he travelled to Australia on a fraudulent passport under a false name,[39] but said Canada was his ultimate destination. He subsequently decided to stay in Australia and said he was assisted by “legal aid” in applying for protection.
[39] Exhibit R1, 753, 755.
Offending and rehabilitation
The Applicant claimed on several occasions he accepts full responsibility for his wife’s death. A noteworthy feature of this acceptance, however, is that it is conditioned by a narrative that conflicts with the Court’s finding of premeditated murder. The Applicant has variously relied on impulsiveness, lack of premeditation, and even told a psychiatrist from the International Health and Medical Services (IHMS) that his wife’s murder “was just a horrible accident”.[40] When challenged during the hearing that his narrative conflicted with the judgements of the Supreme Court and Court of Appeal, the Applicant responded: “they were not in the car with me and don’t know what happened”. He said the events were only known to: “[him, his] wife, and the Lord – I don’t have to justify that to anyone”. The Applicant disagreed with the Court’s finding that he planned his wife’s disappearance. He claimed his intention was to surprise her by doing “something extraordinary” and romantic.[41] When asked why his wife would be awake when he arrived unexpectedly to see her in another state and in the early hours of the morning, the Applicant claimed she did not sleep because of medication.
[40] Exhibit R2, 70. The IHMS provides primary and mental health care services within Australia’s immigration detention network.
[41] Exhibit R1, 322.
When asked by Mr Turner how he feels about the murder conviction, the Applicant said this is a “difficult question”. He again claimed to take responsibility for being the “person responsible” for causing his wife’s death, while concurrently claiming a lawyer “sabotaged” and destroyed his defence through “illegal misconduct”, and police “verballed witnesses” and “blocked and diverted the truth” through “a wall of lies and deceptive statements that eventually perverted the course of justice”.[42] The Applicant contextualised his actions variously as resulting from impulsiveness, loss of control, immaturity, lack of knowledge about Australia’s criminal justice system, illiteracy, and several other factors.[43] He thought at the time “Australia followed a similar structure and behaviour” to his country of origin,[44] which he claimed guided his actions after his wife’s murder.
[42] Exhibit R1, 509-511.
[43] Exhibit R1, 323.
[44] Exhibit R1, 323-324.
The Applicant said after realising his wife was dead, he spoke to family overseas who advised him to leave Australia immediately. He claimed to have refused because the right thing to do was to answer for his actions. The Applicant said he had two passports at the time, which would have enabled him to flee if he was minded to, including the fraudulent passport he entered Australia with. When asked why he still possessed this document, he said authorities had not taken it from him.
The Applicant invoked three reasons to explain why he lied to police, his wife’s family, friends, and others by denying he had any knowledge of his wife’s disappearance. He said the first was a lack of awareness about Australian law, the second was to give him time to sell assets and prepare his legal defence for manslaughter, and the third was to lodge his application for citizenship by conferral, which he claimed to be eligible for at this time.[45] The Applicant claimed he always intended to disclose his involvement, but only on his terms.
[45] Ibid 324.
Conduct in custodial settings
The Applicant agreed that around the time he left prison for immigration detention in 2019, he had approximately 40 reportable incidents against him. He said these were “very minor” and had occurred because prison “is a very dangerous place”. He explained that one incident arose because a prison officer was jealous of his academic achievements and hid his textbooks. In another incident he sewed his lips together “as a sign of protest” after purportedly being “forced to abandon” studies, refused to comply with directions, and had to be taken to the ground by a response team.[46] On another occasion he claimed a prison officer purportedly threw his holy book “in the garbage”. He disagreed with a report stating he threatened to kill a prison officer, claiming this was misreported and he only told the prison officer: “if you were in another country you could be killed for what you did”. The Applicant said he is not the kind of person who engages in misconduct for no reason. He referred to prison and detention officers as “private contractors,” claiming many are “corrupt”. He explained they “write whatever they want” and he has “no protection against what they say”. The Applicant’s evidence about other incidents put to him includes:
(a)He agreed a small amount of marijuana was found in his shorts,[47] claiming it was put there by another prisoner who told him: “That is for washing my clothing – sell it for yourself”. When asked why he did not hand the marijuana to authorities or dispose of it, the Applicant claimed he “forgot about it”.
(b)The Applicant agreed on one occasion he threw a meal from a trolley onto the floor and told the officer: “You treat me like shit, I act like shit”.[48]
(c)The Applicant agreed on one occasion he trashed his cell and covered the walls and CCTV camera with his own excrement.[49]
(d)The Applicant agreed he told prison authorities he would not listen to or obey instructions, because he thought staff were intentionally sabotaging his progress by “not allowing [him] to do any programs”.[50]
(e)The Applicant agreed he insisted on having his own room in immigration detention, claiming the person allocated to share a room was a smoker, used drugs, and “was filthy”. He claimed to have slept on the floor in a prayer room until detention staff gave him his own room. When asked about an IHMS psychiatrist’s report where he is recorded as stating he would go on “autopilot” if not given his own room and things would “get ugly”, the Applicant agreed he said this. He contextualised this as part of his strategy to “avoid trouble” from “homosexuals, the drug epidemic and alcohol”, stating: “What price do I have to pay to be left alone. I don’t want somebody else’s problems”.
(f)The Applicant agreed in March 2020 he may have used terms like “dog” or “rat dog” to detention staff,[51] but denied ever using the words “I’ll kill you”.[52] He claimed his response resulted from a detention officer making a rude or dismissive hand gesture. When put to him that CCTV did not show such a gesture, the Applicant responded: “[Service provider] never discredit themselves and back themselves up. [Service provider] is a corrupt organisation bringing in drugs and getting money…we don’t have any protection…”. The Applicant recalled telling the officer on this occasion: “you don’t know your job or what you’re doing” and threatened to complain. He said the officers colluded to pre-empt his complaint with their own.
(g)The Applicant agreed on one occasion he stated to a detention officer “you don’t know who I am” but claimed some of what he said, such as telling the officer “if you were in prison you would be under the bed by now”,[53] was “prison slang”.
(h)The Applicant was asked about a psychiatrist’s report dated 17 June 2020, which noted his description of an incident where “he held a fork up to someone’s mouth while threatening them”.[54] He stated this was just a plastic fork and he was “mucking around” with the psychiatrist just to “make a joke – to make a mockery out of it”, because he found some of the questions asked “silly”.
[46] Exhibit R2, 354.
[47] Ibid 333.
[48] Ibid 338.
[49] Ibid 349.
[50] Ibid 340; 377.
[51] Ibid 714.
[52] Ibid.
[53] Exhibit R1, 797.
[54] Exhibit R2, 205.
The Applicant claimed to have been highly respected in prison and immigration detention because of the extensive time he spent in solitary confinement. He said this resulted in him having an influential “method of communication among prisoners” and became a “mediator” and “representative” who was obeyed. He claimed to have purportedly stopped multiple incidents from spiralling out of control by leveraging this respect and influence. An example was purportedly saving a person’s life from a larger and more powerful attacker. He claimed to have ordered the attacker, who he estimated weighed 140 kg, to go to his room, which was immediately complied with. The Applicant said he intervened to take control of the situation after everyone ran away when the incident erupted, including custodial staff. On another occasion he claimed to have taken a pool cue from a detainee’s hands, again defusing a dangerous situation.
Self-development
The Applicant referred to academic studies and his religious conversion in 2010 as the foundation of his insight and rehabilitation. He stated in documentary evidence his religious conversation is “not a tactic” to further his protection application but for his “own salvation and rehabilitation”. [55] He said that he practices his religion secretly because other prisoners and detainees from his former religion may consider him an apostate and harm him.
[55] Exhibit R1, 138-139.
Recidivism risk
The Applicant said he refused to fully participate in an assessment by forensic psychologist Dr Godfredson in 2019, because he was kept waiting and then asked “highly inappropriate and offensive” questions about his family overseas.[56] He claimed Dr Godfredson’s recommendations about risk were unreliable, including because he did not fully participate in the assessment, and the clinician’s recommendation for a supervision order was not adopted. The Applicant claimed this was because others saw his behaviour in custody and did not believe this was warranted. The Applicant agreed he inferred this from an email, and there is no express reason stated why a supervision order was not pursued.
[56] Ibid 376.
The Applicant claimed to “hate violence”, and the “thought of disturbing an ant does not exist in [him]”. He stated: “it defies logic that a religious, discipline (sic), rehabilitated, and hard-working person is a danger of re-offending or a threat to community”.[57]
[57] Ibid 519-520.
Health
The Applicant is recorded as telling an IHMS psychiatrist he “will never ever take medication because it numbs the brain, [stated] he has a perfect brain, [and had] trained his brain out of sleep”.[58] IHMS records disclose the Applicant deciding at times to stop taking medications and then resuming them.[59]
[58] Exhibit R2, 70-71.
[59] Ibid 226; 230-231.
The Applicant said changes in weather affected his respiratory condition and there is “insufficient medical assistance” available to him in detention. He agreed requests could be made to see a doctor, but said appointments took too long to organise. The Applicant said he complained about health services in the past,[60] including on one occasion when detainees behind him in the queue saw the doctor before he did. He was labelled as aggressive during this complaint.[61] When put to him that he did not previously complain about the quality of medical care, the Applicant responded: “I don’t like to complain much”.
[60] Exhibit R1, 527-534; 539-564; 714-716; Exhibit R2, 9-12.
[61] Ibid 9-12.
When asked by Ms McInnes whether he has asthma, the Applicant denied this, despite written submissions on his behalf stating he was “diagnosed with severe asthma”.[62] When asked to name the respiratory condition he suffers, the Applicant responded: “I don’t know, I’m not a doctor”. When asked if he suffered asthma attacks twice in the previous year, the Applicant responded: “I don’t know how many times - the record is there”. The Applicant subsequently claimed he has more attacks than this but routinely declines treatment and prefers to stay in his room. This is because when taken to another medical facility in the past, including by ambulance, he found himself in “a small room with three [immigration] officers present”. The Applicant agreed he takes medication through a portable nebuliser in his room, but said it is “impossible” to address his medical needs while detained. He claimed a respiratory specialist told him there are ways to minimise his symptoms, but only if released. When put by Ms McInnes that his asthma would be no different whether he remained in detention or in the community, the Applicant conceded: “I don’t know if it’s possible to resolve this issue outside”.
[62] ASFIC, 5 [22].
When asked whether he has any unmet rehabilitation or mental health needs, the Applicant referred only to Mr Cummins’ diagnosis of PTSD.
Intentions if allowed to remain in Australia
The Applicant said he intends living with a friend if released, who is married with three children. When asked how he knows this person, the Applicant said they met in prison a long time ago and served some of their sentences together before this friend was sent to another prison. When asked what his friend was imprisoned for, the Applicant responded: “I don’t know – maybe an issue he had with somebody”. It emerged later in the hearing his friend was convicted of attempted murder and multiple thefts, for which he was sentenced to eight years imprisonment.
The Applicant said he will stay with this friend until he can “stand on [his] own two feet and resolve [his] respiratory issue”. He then wants to work in “real estate” and undertake charity work like “cooking for homeless people”. He also intends pursuing advanced studies. The Applicant said he would concurrently pursue his religious beliefs, the practice of which “empowered [him] to be a different person”. When asked to elaborate, he claimed not to have previously known “what is right and what is wrong”, but upon learning about his new religion a decade or so ago, in the context of studying subjects like terrorism, transnational crime and security, he has thought more deeply about his past, gained new insights, and strives to be a better person.
Evidence of Applicant’s friend
The Applicant’s friend gave oral evidence on the second day of the hearing and adopted two letters dated 2 August 2015 and 5 April 2019 as true and correct.[63] The witness said he met the Applicant while serving an eight-year sentence for attempted murder and “numerous thefts”. He claimed to have served a non-parole period of four years before being released about 20 years ago. He subsequently kept in touch with the Applicant through infrequent visits, but mostly weekly telephone calls and some letters. The witness said he will offer the Applicant accommodation and food “for as long as he needs it”. He has no concerns about welcoming the Applicant into his home.
[63] Exhibit R1 248, 350.
When asked what he knows about the Applicant’s crime, the witness responded: “I believe he strangled his wife while they were having an argument…it was a spur of the moment thing that wasn’t premeditated – it could happen to any of us”. When asked about the Court’s finding of premeditated murder, the witness said this is “completely untrue”. He claimed to “know the facts of the matter” and to have an “understanding of the entirety of what was presented”. The witness agreed in response to further questions that he first met the Applicant in prison well after his offending, and only spent “most of a year” with him before being transferred to another prison. When asked by Mr Turner if anything he was told about the Applicant changed his view about offering support, the witness said it did not.
Evidence of Applicant’s religious mentor
The statement from the Applicant’s religious mentor dated 12 July 2021 was accepted into evidence unchallenged.[64]
[64] Exhibit A2.
PRIMARY CONSIDERATIONS
Tribunal consideration: Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered the available sentencing remarks, Court of Appeal decision,[65] and the Applicant’s evidence regarding the nature and seriousness of his offending. There are challenges in referring to his offending in other than general terms without tending to identify him. The jury and Court rejected the Applicant’s claims of provocation and lack of murderous intent.[66] He was found to have fabricated the narrative relied upon for his defence, which was replete with inconsistent, deficient, and implausible information.[67] The Court found the Applicant told many lies,[68] acted with cynicism and deceit, and lacked credibility as a witness.[69] He was found not only to have planned his wife’s death, but then treated her remains in a way belying any sense of respect.[70] The Court considered this an aggravating factor.[71] He then tried to escape detection by lying about his involvement. Reference was made to the Applicant’s lack of remorse, denigration of the victim, and powerful anguish emerging from the victim impact statements tendered by her family.[72]
[65] Ibid 46-57.
[66] Ibid 51 [24].
[67] Ibid 50 [15].
[68] Ibid 51 [20]; 56 [9].
[69] Ibid 47 [6].
[70] Ibid 51 [ 24].
[71] Ibid 48 [9]-[10]; 50 [18]; 51 [25]; 55 [7].
[72] Exhibit R2, 624-647.
The Applicant describes himself as a “first time offender”, and prior to that as a “person of good character”.[73] He has variously claimed his wife’s death was a “one-off unintentional crime”,[74] that he did not intend to “cause her serious bodily harm”,[75] the entire case against him “was based on circumstantial evidence”,[76] and this was an isolated incident in the context of a “mistake”,[77] or loss of “self-control…after he was assaulted and abused” by the victim, which caused him to behave in a “highly disappointing manner”.[78]
[73] Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”), 8 [40].
[74] ASFIC, 9 [42].
[75] Exhibit R1, 125.
[76] Ibid.
[77] Ibid 135.
[78] ASFIC, 4 [17]; 8 [40]; 10-11 [50].
The Tribunal has considered the Respondent’s submissions.[79] These include that the Applicant’s murder was a “violent offence of the most serious kind”. Ms McInnes summarised five areas of divergence between the Applicant’s evidence and judicial findings against him. She said the Applicant had not challenged his conviction to completion after withdrawing his application, and only elected to appeal his sentence, which was rejected.
[79] RSFIC, 7 [21]-[27].
In addition to the Applicant’s criminal history, other conduct may also be apposite to the Tribunal’s consideration, despite not leading to charges or convictions. This includes his arrival in Australia on a false passport, remaining here illegally for a time, and persistent misconduct in custodial settings. Multiple records state the Applicant has engaged in abusive, aggressive, threatening, non-compliant, defiant, or other objectionable behaviours that contravene custodial rules.[80] Mr Turner took the Tribunal through several of these incidents[81] and conceded the Applicant may have been variously abusive, threatening, confrontational, offensive, demanding, impolite, engaged in frequent protests, and possessed contraband on two occasions. Mr Turner submitted, however, the only reports of actual violence involving the Applicant were when he intervened in a fight to save another person and defended himself in another incident. He also said the seriousness of the Applicant’s misconduct should be seen in the context of an average of 1.6 incidents for each year he spent in custodial settings.
[80] Exhibit R1, 548, 560, 797-798; Exhibit R2, 41, 205, 240, 244, 309, 324, 329,333-335, 338, 339, 349, 359, 365, 377, 401, 405, 413, 714.
[81] Exhibit R2, 250, 338-339, 345, 349, 359, 360, 363, 366, 377, 382, 385, 387, 391, 395, 401, 413, 415, 713-714.
In terms of the weight to be given to police or custodial records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence[82] and although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them as ‘other conduct’ within the meaning of cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. Mr Turner and Ms McInnes did so during the hearing. As Kenny J has pointed out, however, the Tribunal should treat contemporaneous records of this kind carefully and acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[83] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[84] Absent agreement by a witness that records not leading to criminal charges or convictions are accurate, they must be treated with caution.
[82] AAT Act, s 33(1)(c).
[83] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[84] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
The Applicant was asked about an incident during a hospital visit approximately 25 years ago, where a security guard placed him in a headlock (“hospital incident”). The Applicant agreed he bit the guard’s arm but only to release himself because he could not breathe. He claimed: “the matter went before a magistrate but was dismissed”.[85] The Applicant also referred to a report referring to him trying to kiss his wife’s niece, who was babysitting his wife’s children, as “despicable lies” that were withdrawn by the Crown Prosecutor[86] (“babysitting incident”). He claimed that upon returning from a night out with his wife he noticed the smell of cigarettes, a liquor cabinet not being properly closed, and an open vodka bottle, which he decided not to tell his wife about “in order to avoid animosity”. The Applicant claimed he also noticed smoking and alcohol consumption on a second occasion of babysitting and, upon driving the niece home, told her he did not like this conduct, for which she “repeatedly apologised”. He claimed the niece subsequently made false claims about him because he stopped using her as a babysitter and said she was subsequently “exposed…as a liar”.[87]
[85] Exhibit R1, 386-387.
[86] Ibid 387.
[87] Ibid 388.
Tribunal findings: The nature and seriousness of the conduct
There is no evidence about the Applicant’s criminal history in his country of origin or another country he lived in for a time. It is clear from the sentencing remarks, however, that the Court proceeded on the premise he was of good character prior to his conviction.
The Applicant’s premediated murder of his wife is a serious example of an extremely serious crime. The Tribunal rejects his submissions to the contrary, which impermissibly impugn the essential basis of his conviction.[88]
[88] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
Imprisonment is a sentence of last resort and the most severe sanction available to our courts.[89] The statutory maximum sentence for murder is imprisonment for life. Although a sentence of more than 20 years’ imprisonment is well below a life sentence, it nevertheless reflects the objective seriousness of the Applicant’s conduct.
[89] See for example: Sentencing Advisory Council, “Imprisonment,” <
The Applicant has persistently acted in aggressive, abusive, and threatening ways in custodial settings. The Tribunal does not accept that the seriousness of his misconduct is ameliorated by the mathematical fact it averages out to only 1.6 incidents for each year in custodial settings. Notwithstanding the Applicant’s assertions about bias and corruption, the Tribunal does not discern any apparent motive for the authors of custodial reports to have recorded other than what they saw or was conveyed to them. That is reinforced by the Applicant’s acceptance of much of the conduct put to him, albeit with differing explanations about why it occurred. It is also noteworthy there are recurringly consistent themes in the conduct attributed to the Applicant by multiple authors over a protracted period, and in both prison and immigration settings. The Tribunal finds the persistent consistency of custodial records more persuasive than the Applicant’s uncorroborated assertions.
There is no evidence that either the hospital or babysitting incidents resulted in convictions, so the Tribunal places no weight on them.
The Applicant entered Australia on a fraudulent passport[90] and, in doing so, provided false information in an official context: cl 8.1.1(1)(f) of the Direction. He also subsequently lived in Australia as an unlawful non-citizen following the expiration of his visa.[91] Such conduct is inconsistent with the integrity of Australia’s migration law.
[90] Ibid 753 [Identity Assessment]; 755 [Migration History].
[91] Ibid 755.
The totality of the Applicant’s offending and other misconduct is extremely serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Offending and remorse
Reference was made by the Courts to the Applicant being untroubled by conscience or remorse in the aftermath of his offending, taking almost every opportunity to denigrate his wife during trial.[92] More than 20 years later he continues to present a revisionist narrative at odds with the substantive findings against him.[93] His current expressions of remorse are conditioned by this narrative and he relies variously on impulsiveness, immaturity, provocation from his victim, and corrupt conduct by others. This includes attributing unlawfulness and improper motives on his wife’s family and police, who he claimed used:
“…selective evidence to turn an unintentional act to an intentional plan to acquire their desirable conviction…the truth and searching for it were somewhat irrelevant to investigators…I also realised that I should not expect the truth from my family-in-law either, because they lost their daughter and everyone wanted revenge by any means, including saying or doing anything to achieve such revenge.”[94]
[92] Exhibit R1, 47 [6]; Exhibit R2, 624-647.
[93] Exhibit R1, 125-127.
[94] Exhibit R1, 322.
The Applicant also invoked factors purportedly beyond his control, such as claiming he was:
“unprepared and powerless to control [my]self and reacted badly…my conduct should be viewed as an isolated incident between a husband and wife – not society as a whole…I am well aware that I took the life of my wife and acted in a manner afterwards that in the eyes of others observed as aggravating factor”.[95]
[95] Exhibit R1, 124.
The Tribunal has considered several references in the Applicant’s documentary evidence referring to the pain and suffering his conduct inflicted on his wife’s children from a previous relationship and her other family members.[96] Mr Turner relied on a 1999 Tribunal case[97] in support of the proposition that despite the Applicant’s unwillingness to accept the murder of his wife was premeditated, this does not constitute a lack of regret, or that “his contrition and remorse is any less real”. It is also submitted the Applicant’s past suicidal ideation[98] results from his “sorrow and failure”.[99] Ms McInnes did not dispute the Applicant regretted his conduct but said the facts in Lam were clearly distinguishable from the present matter.
[96] See, for example, Exhibit R1, 123.
[97] Lam v Minister for Immigration and Multicultural Affairs [1999] AATA 56, [50] (“Lam”).
[98] Exhibit R1, 116; 128.
[99] ASFIC, 9 [41].
The Tribunal has considered references to the Applicant having “primary distortions” relating to “personal responsibility for his offending behaviour”.[100] Mr Turner directed the Tribunal to a psychologist’s report in which it stated the Applicant was taking “full responsibility for his behaviour and acknowledged that he provoked his wife which resulted in her response and his consequent offending”.[101] Ms McInnes submitted this had to be read in conjunction with the top of the same page, which showed that the Applicant’s acceptance of “full responsibility” was for a version of events that impugned his conviction.
[100] Exhibit R2, 391.
[101] Ibid 369.
Conduct in custodial settings
The Tribunal has considered several reports and references by prison staff during the Applicant’s incarceration, including to his “amicable” dealings as a prisoner, valued contribution to a prisoner representative meeting, capable and motivated approach to work, completion of tertiary studies and programs, and a polite and positive manner.[102] These must be considered in conjunction with other reports of his frequent involvement in “prison incidents, placements in management units”, and other misconduct.[103] One record from early 2003, written by the Acting Director of the Sentencing Management Unit to the Commissioner, states the Applicant had “19 recorded prison incidents” at that time relating to “good order and management, self-harm, assault prisoner and further medical incidents”.[104] This included threats to engage in protests if certain action was not taken, and other acts of non-compliance that required force to be used.[105] The Applicant wrote to a prison General Manager in late 2014, stating that although he previously promised to:
“…obey all prison rules and avoid causing any problems for authorities…the ongoing failure of authorities …to oversee the function of the incompetent Head of Offending Behaviour Programs…who is deliberately sabotaging my progress by not providing Assessment and then any program…is pushing me to the point that triggering my reaction to such failures….I will disengage myself from current cooperative behaviour and respecting Prison’s rules or authorities. This means, I would not obey any order from anyone from above date and staff have to manage me with coercion…My actions will be a method of protest and mutiny…I intend to draw the attention of Government and society, by all possible means and if I have to suffer pain or die in isolation, I guess this is the price that I have to pay to prove my point and simultaneously, set an example for other prisoners”.[106]
[102] Ibid 245-247; Exhibit R2, 343-346; 363; 382-383.
[103] Including: Exhibit R1, 548, 560; Exhibit R2, 205, 244, 257, 309, 318, 324, 329, 333-335, 338, 339, 349, 359, 372, 377, 401, 405, 413, 415, 714.
[104] Ibid 334-336.
[105] Ibid 340; 348-350; 352; 354-356; 359.
[106] Exhibit R2, 377.
By 2019 it was noted the Applicant had “attracted 40 reportable incidents” since his imprisonment and “possesses a personality style which tends toward the entitled and an emotional profile which is prone to severe dysregulation”.[107] The Tribunal acknowledges a letter from Australian Border Force dated 23 June 2021 following the Applicant’s transfer from prison to immigration detention, stating he had “Nil incidents” at that time.[108] There are subsequent references, however, to the Applicant again behaving in an abusive, aggressive, and threatening way.[109] This includes stating to a detention staff member in March 2020: “if you were in prison you would be under the bed by now…who the fuck do you think you are, you are nothing, you don’t know who I am”.[110]
[107] Ibid 416.
[108] Exhibit R1, 565.
[109] Ibid 793-799; Exhibit R2, 713-714.
[110] Exhibit R1, 797.
Rehabilitation
The Tribunal has considered materials relevant to tertiary, vocational, self-development, and rehabilitative courses undertaken by the Applicant.[111] He particularly relies on “rehabilitation through academic studies”.[112] Mr Turner emphasised the Applicant’s faith and commitment to education as the foundation on which his rehabilitation is built. Ms McInnes submitted in contrast that the Applicant’s religious conversion and academic achievements were in a highly regulated custodial setting. She said there is no evidence any coping methods in this context were transferrable to the community, where he would have to juggle aspirations to work, study, address his medical / psychological health needs, and cope with the inevitable challenges of reintegration after 25 years in custody. She said this was problematic given some of the attitudes he has previously expressed about rehabilitation, the absence of any discernible mental health treatment plan, and past problems in finding clinicians he is willing to meaningfully interact with.
[111] Ibid, 80 [81]; 254; 277-279; 291-299; 353-363; 400; 405-406.
[112] Ibid, 131.
Risk
At the commencement of the hearing Mr Turner said he asked the Respondent to call Dr Godfredson as a witness, but this was refused. He claimed this is procedurally unfair because the Applicant is “entitled” to cross-examine Dr Godfredson about aspects of his report. The Tribunal noted it was open to the Applicant to summons Dr Godfredson in accordance with scheduling order allowing for this, but he had not done so. Moreover, it was for each side to determine what witnesses to call, and procedural fairness does not require authors of records to be cross-examined for weight to be placed on them.[113]
[113] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).
In terms of psychological reports relevant to the Applicant’s recidivism risk, the Tribunal has considered reports dated April and September 2014 from two psychologists who noted a VISAT Risk Assessment of “Low”.[114] Open-source information discloses this is the Victorian Intervention Screening Assessment Tool, which is a predictive risk assessment instrument.[115] A female clinical psychologist met with the Applicant at this time for extensive interviews over approximately 10 hours,[116] and noted he “became increasingly agitated and difficult to interrupt”, and displayed “increased agitation” as the interview progressed.[117] It was noted the Applicant:
“…had a history of refusing to engage in various assessments and processes within the prison or delaying the process by seeking clarification and legal advice on various aspects of the assessment process. During previous engagement with Offending Behaviour Programs, [the Applicant] had refused to sign consent forms and discuss his history and offence in any detail”.[118]
[114] Exhibit R2, 360-362; 366-376.
[115] Department of Human Services, Corrections Victoria and Community Offenders Advice and Treatment Service (COATS), ‘COATS, Community Correctional Services and Drug Treatment Services Protocol’ Victorian Government Library Service (Web Page) 23 October 2009 < Microsoft Word - Protocol COATS april 09 final.doc (vgls.vic.gov.au)>.
[116] Ibid 366.
[117] Exhibit R2, 360.
[118] Ibid 375.
The Applicant reportedly stated to the clinician he had no “current difficulties or deficiencies” requiring “any type of intervention or treatment”,[119] and agreed he was “extrinsically motivated by parole”.[120] The psychologist noted the Applicant advanced a narrative about his wife’s murder that was “somewhat different” to the judicial findings against him, most notably the absence of any premeditation.[121] The Applicant is recorded as stating “he wanted to plead guilty at court, however was advised by his barrister not to plead guilty to murder, but rather to manslaughter as his barrister believed he could claim that he had been provoked by his wife”.[122] During the hearing, the Applicant explained the reason for not contesting the conviction was his barrister told him he had no case to advance and only an appeal against sentence was commenced.
[119] Ibid 367.
[120] Ibid 375.
[121] Ibid 367-368.
[122] Ibid 369.
It was noted in the 2014 assessment that the Applicant reported having “strong responses to feeling disrespected, including engaging in protest behaviour (e.g. sewing lips together with a paperclip) and engaging in violent behaviour (e.g. throwing food at others, and swearing and abusing them)”.[123] After psychometric testing, the Applicant was noted to have a “High” level of psychological functioning, “medium” level of treatment motivation, and “Low” level of social functioning.[124] His score on the Violence Risk Scale was noted to be in the “moderate risk category”, which meant he constituted a “moderate probability of committing further violent offences compared to other male offenders”.[125] Multiple unmet “treatment targets” were identified for the Applicant’s rehabilitative needs.[126]
[123] Ibid 372.
[124] Ibid 373.
[125] Ibid 373.
[126] Ibid 374.
A subsequent report in early 2015 by another psychologist referred to the Applicant’s “argumentative approach” during the Exploring Change Program, in which he questioned the female facilitator on the “validity, reliability and purpose” of the Program and “presented in a grandiose manner”.[127] He is reported to have laughed and “scoffed when…challenged by the female facilitator”, and reportedly “continued to accost [her] up until he was walking out of the room, stating that there was more of his argumentative questioning to come after the break”.[128] The Applicant is reported to have apologised after receiving “feedback from other group members”,[129] following which his participation was noted to improve. He is reported to have appeared “uncomfortable when receiving feedback” and expressed “no perceived need for treatment other than to cope with the anxiety of returning to the community”.[130] The report also noted the Applicant “had a tendency to externalise blame for his behaviour [and such] distortions were pejorative in nature towards females”.[131] He reportedly advised that his future plan included an “intention to bring a woman to Australia from [country of origin redacted] to marry”.[132] His insight was rated as “Unsatisfactory”.[133]
[127] Ibid 380.
[128] Ibid.
[129] Ibid.
[130] Exhibit R1, 80 [81].
[131] Exhibit R2, 380.
[132] Exhibit R1, 80-81 [81].
[133] Ibid.
The Applicant participated in the Making Choices Program in 2016, which was supervised by a psychologist and clinical psychologist.[134] He reportedly presented as “resistant, uncooperative and disruptive…[and was]…unreceptive to feedback from the facilitators and participants”. He reportedly provided “superficial responses [and] demonstrated emotional reactivity when his attitudes and identity were challenged…by engaging passive-aggressive behaviours (sic), including poor punctuality, resistance to completing tasks” (sic). His participation reportedly improved after “significant feedback”, although the psychologists noted that “despite observed improvements in engagement with facilitators and other participants, at program completion [the Applicant] continued to have significant deficits in interpersonal and emotion regulation skills”.[135] Discrepancies were noted by the psychologists “between [the Applicant’s] reported motivation and observed behaviour”. He was noted to have “limited emotional insight” and “chronic difficulties with emotional regulation”.[136] The psychologists noted he required:
“…ongoing individual psychological intervention to further explore the origins of his emotion regulation difficulties and develop emotion regulation skills, to prevent his risk of ongoing utilisation of violence and aggression as a means of coping with and communicating his emotional distress…He continued to present with distortions and externalisation of blame for his offending behaviour, primarily attributing the interpersonal cultural / religious differences, as well as the actions of his victim preceding the offence, as the main causal factors. [The Applicant’s] recollection of his offence differed significantly from the judges sentencing comments, specifically regarding issues of premeditation, intent, and the intention of his actions to dispose of his victim… [The Applicant] was challenged on these discrepancies…While some shifts were observed in his willingness to openly consider and discuss his responsibility for his actions, he was generally resistant to explore these circumstances in detail”.[137]
[134] Ibid 301; Exhibit R2, 385-396.
[135] Exhibit R2, 389.
[136] Ibid 388.
[137] Ibid 388.
The Applicant was noted during the Making Choices Program to have a:
“…baseline for violence…[that is]…significantly higher than the average person, resulting in an increased capacity to perpetrate and justify his use of violence and aggression in response to perceived threats (both physically and emotionally)…Due to… [the Applicant’s] entrenched belief systems, reported and documented history of interpersonal and intrapersonal violence, limited progress against this treatment target was demonstrated. [The Applicant’s] self-reported and documented behaviour while incarcerated, as well as behaviours demonstrated throughout the program indicated a pattern of interpersonal aggression, including manipulation and controlling behaviours, in an attempt to meet his needs and manage his emotional distress. In the early stages of the program, his behaviour in group appeared to represent attempts to gain control, avoid taking responsibility for his offending behaviour, and to challenge/manipulate the therapeutic process”.[138]
[138] Ibid 390.
In terms of recidivism risk, the psychologists noted that if the Applicant were to:
“experience feelings of worthlessness or threats to his sense of identity, in the absence of alternate coping strategies, [he] would be at risk of utilising violence, aggression, and manipulation in an attempt to cope with, and communicate, his emotional distress, and gain control over his external environment. A further risk scenario for [the Applicant] relates to experiences of perceived injustice or unfairness, as well as perceived sense of lacking control of his environment. In these situations, [the Applicant] would be at risk of utilising interpersonal and intrapersonal violence, aggression, and manipulative behaviours in an attempt to regain control over the situation and to communicate his internal distress…Given [the Applicant’s] significant emotion regulation and relationship difficulties, and subsequent behavioural issues resulting from these skills deficits, it is recommended he be considered for inclusion in the Real Understanding of Self Help (RUSH) program to further develop to mediate these criminogenic risks”.[139]
[139] Ibid 392-394.
A joint report by another psychologist and senior psychologist in October 2016 stated:
“His self report and observed behaviour during the Making Choices Program further highlighted the authors concerns regarding his propensity for violence and aggression…it is possible that his risk level of moderate may be under-representative of his propensity for violence/aggression”.[140]
[140] Ibid 393.
In November 2016 the Applicant declined participation in the Moderate Intensity Violence Intervention Program because he was not recommended to do the program and felt “demoralised” after completing the Making Choices Program.[141]
[141] Exhibit R1, 84 [95]; Exhibit R2, 397.
The Applicant wrote to a senior female clinician on 4 September 2018 in which he stated he was formally withdrawing from the RUSH Program due to the “unwarranted, disrespectful, unprofessional and continuous outbursts of your clinician”, but was “happy to participate” in a future program if the clinician complained about was not involved.[142]
[142] Exhibit R2, 412; 416.
In January 2019 the Applicant reportedly told a senior psychologist he would like to engage “with an experienced clinician to address emotional regulation deficits”, and “reportedly expressed his belief that his early experiences of Army life…, and the violence he was exposed to as a child in the family home, have normalised violence for him and he was almost ‘programmed’ to behave in a violent manner”.[143] He also reportedly acknowledged that he engaged in manipulative behaviours while imprisoned “which he perceived as his only means to ensure his needs were met”. This report noted the Applicant had “attracted 40 reportable incidents” since his imprisonment. It was also noted he “possesses a personality style which tends toward the entitled and an emotional profile which is prone to severe dysregulation”.[144] He failed to complete the RUSH Program due to “a lack of rapport with the female facilitators”, believing he was disrespected by one facilitator and commenting “many times [about] the facilitator’s age and perceived lack of life experience”.[145] The interviewer considered these perspectives to be “cognitive distortions regarding younger clinical staff”.[146]
[143] Exhibit R1, 84 [96]; Exhibit R2, 414-417.
[144] Ibid 416.
[145] Ibid.
[146] Ibid 417.
A letter from a psychologist stated the Applicant attended three sessions in July 2019 “focussed on developing strategies and skills for emotion regulation”, and expressed positive views about his engagement:
“He has demonstrated daily efforts on set homework tasks and shown a high level of motivation and an open minded attitude toward learning. The end date of the intervention will be determined by his rate of progress, insight and understanding of emotional regulation demonstrated in session”.[147]
[147] Ibid 400.
During a consultation with an IHMS mental health nurse on 26 September 2019, the Applicant was assessed as a “moderate” risk of harm to and from others, and “may be considered a threat by others due to his overly assertive approach and tendency towards aggression when feeling disrespected / threatened”.[148] The author noted the Applicant “is fairly regimented and vocal in his approach to asserting his needs…Remains a constant and longitudinal risk of interpersonal violence given his past experiences and behaviours”.[149] During a consultation with another IHMS mental health nurse on 11 October 2019, the Applicant reportedly stated he wanted a single room or “may hurt someone, which he has stated he has done in the past [and will not] be responsible for what he does”.[150]
[148] Exhibit R2, 246.
[149] Ibid 246.
[150] Ibid 244.
During a consultation with an IHMS psychiatrist on 1 November 2019, the Applicant was diagnosed with a “Personality Disorder”.[151] He reportedly claimed during this consultation he and his wife “argued over something silly and he lost control and choked her…Says she hit his face first…We are human from time to time and we make stupid mistakes”. He also claimed that a higher study proposal he submitted was regarded by academics as “brilliant”.
[151] Ibid 241.
During a consultation with an IHMS psychiatrist on 17 June 2020, it was again noted the Applicant had a “Personality disorder”, and his earlier presentation on 1 November 2019 “was consistent with an earlier diagnosis of antisocial personality disorder”.[152] The Applicant re-agitated his request for a single room, stating if this was not granted, “he would inevitably perceive his roommate as a threat, go into ‘autopilot’ and it would get ugly”. The Applicant was recorded as claiming he had lost “the ability to socialise with other people,” gave examples of when he was violent towards roommates in a custodial setting after they provoked him, explained the warnings he gave them to change their behaviour, and how it then “got ugly”. The psychiatrist noted this included a “description of an incident where he held a fork up to someone’s mouth while threatening them”. The psychiatrist further noted: “there is no reason to doubt that anybody in a shared room with [the Applicant] would be at risk from him. The possibility that [the Applicant] could be violent to others especially if they were to ‘get in [his] space’ or otherwise irritate him is also high…”. The psychiatrist noted continuing evidence of the Applicant having “an antisocial personality structure”.
[152] Ibid 205.
An IHMS psychologist noted in November 2020 the Applicant claimed to be “an officer in the Army and witnessed cruelty”, “retaliated violently when he felt threatened in prison”, and “has very little tolerance when he feels threatened or disrespected”.[153] No diagnosed conditions were recorded, but the psychologist thought he likely suffers “PTSD”.
[153] Ibid 164.
The Applicant participated in several two-hour sessions of the “Managing Anger” course in mid-2021.[154]
[154] Exhibit R1, 567-568; 573-574; 576.
The Applicant participated in several two-hour sessions of the “Dads Connecting With Kids” workshops in mid-2021.[155]
[155] Ibid 569-570; 575.
The most recent assessments of the Applicant’s recidivism risk are by Dr Joel Godfredson and Mr Jeffrey Cummins. Both used the Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3) instrument to assess the Applicant’s risk, which the Applicant has previously described as an “unreliable, incomprehensive, and inaccurate” methodology.[156] At the current hearing, however, he rejected Dr Godfredson’s risk assessment but relied on Mr Cummins’ opinion using the same instrument. These reports are now further considered:
[156] Ibid 372; 374-376.
(a)Report of Dr Godfredson. Clinical and forensic psychologist Dr Joel Godfredson was commissioned to prepare a comprehensive Assessment Report in 2019 under the Serious Offenders Act 2018 (Vic).[157] This was based on a three-hour assessment interview with the Applicant, review of electronic file materials, and completion of actuarial risk assessment tools.[158] The key findings of this report include:
[157] Ibid 63-112.
[158] Ibid, 64; Hare Psychopathy Checklist – Revised, 2nd Edition (PCL-R), and Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3).
(i)The Applicant was diagnosed with paranoid personality disorder, which continued during his imprisonment.
(ii)The Applicant’s score on the PCL-R “was not indicative of a formal diagnosis of psychopathy”,[159] which was not relied upon in assessing his recidivism risk.
[159] Exhibit R1, 92 [162].
(iii)After reviewing the Applicant’s files, applying the HCR-20, and his clinical judgement, Dr Godfredson assessed the Applicant as posing a “high risk of future interpersonal violence and a moderate risk of [committing a] Schedule 2 offence”.[160] In an accompanying footnote, Dr Godfredson said this finding was reconciled with the Applicant’s outstanding risk factors and the low rates of recidivism amongst those who commit homicide. Dr Godfredson assessed the Applicant as having “a high number of risk factors associated with the risk for future interpersonal violence”, putting him “squarely into the high risk category…[which meant] his risk of violence is considerably higher than the average violent offender upon their release from prison.”[161]
[160] Ibid 63.
[161] Ibid 92 [160]; 93 [164].
(iv)Dr Godfredson considered the Applicant had made only “modest gains in treatment…[and]…continued to present with outstanding risks for violent recidivism. He was considered to warrant intensive psychological treatment and case management to assist him in developing a better understanding of his maladaptive behaviours and to encourage the use of prosocial behaviours in the face of interpersonal conflict”.[162] Dr Godfredson assessed the Applicant as having “the capacity to justify the use of violence and aggression in response to perceived threats to his emotional and physical wellbeing”. The limited gains made by the Applicant in treatment were not considered to amount to an overall reduction in his risk status.[163]
[162] Ibid 83.
[163] Ibid 90 [147].
(b)Report of Mr Cummins. Clinical and forensic psychologist Mr Jeffrey Cummins was commissioned to prepare a psychological report by the Applicant.[164] In the opinion section of his report, Mr Cummins stated:
(i)The Applicant “maintains he never formed the intention to kill his wife”.[165]
(ii)In contrast to other risk assessments, Mr Cummins considers the Applicant’s risk of further violent offending is “Low”. He elaborated:
“I emphasise a level of violence of Low is the lowest risk which a psychologist or psychiatrist is permitted to make in Australia. I emphasise that making an assessment of Low violence risk does not mean [the Applicant] could / would never become involved in a verbal argument, or that he could/would never assert himself in a manner which some people might find offensive or even threatening. Nonetheless, I remain of the opinion [the Applicant’s] risk of engaging in an act of serious violent offending remains Low.”[166]
(iii)Mr Cummins assessed the Applicant as exhibiting “symptoms consistent with him currently being diagnosed with Complex PTSD”.[167]
(iv)Mr Cummins noted the Applicant had undertaken rehabilitative approach that others might consider unorthodox:
“I do accept that it could be argued he has made a commitment to rehabilitate himself in an unconventional manner and in a manner which has not always been met with the acceptance, approval, or understanding of prison staff and administrators…In my opinion [the Applicant] has actively pursued a self-directed course of rehabilitation by focusing on educating himself and pursuing his chosen faith…In this regard, in my opinion it is important to emphasise that not every prisoner is best suited to participating in and making use of the sorts of treatment and course offerings available in custodial settings – by virtue of their personality structure and their social skills…In my opinion some prisoners have shown themselves to be well able to benefit from a course of self-guided rehabilitation and…this has been the situation for [the Applicant].”[168]
(v)In contrast to the opinion expressed by Dr Godfredson and other psychologists / psychiatrists, Mr Cummins said the Applicant did not suffer from a personality disorder. Mr Cummins said the Applicant displayed some perfectionist and obsessional personality traits but stated: “this in and of itself does not imply he suffers from a Paranoid Personality Disorder…I did not diagnose [the Applicant] as suffering from any personality disorder”.[169]
(vi)Mr Cummins opined that the Applicant’s “character is now such that he should be regarded as a fit and proper person to be extended the privilege of being able to return to reside in the Australian community…”. When asked about this during the hearing, Mr Cummins said it is a clinical opinion.
[164] Exhibit A3.
[165] Ibid 16 [74].
[166] Ibid 17 [83].
[167] Ibid 15 [70].
[168] Ibid 18 [85].
[169] Ibid 15 [87].
Mr Cummins gave extensive oral evidence on the second hearing day. He adopted his report as true and correct. A summary of Mr Cummins’ evidence follows:
(a) Mr Cummins said the Applicant “remains of the belief it was never his intention to kill his wife”, but concurrently believed the jury “came to a fair and reasonable decision” on the information provided to them. When asked by Ms McInnes whether this was internally inconsistent, Mr Cummins said the Applicant’s rationale was that “some of the evidence put before the jury was manipulated or adulterated in some way to make things seem worse for him”. When Ms McInnes said this did not amount to acceptance, Mr Cummins claimed the Applicant nevertheless accepted his actions caused the death of his wife.
(b) When asked if the Applicant explained during their consultation why he didn’t admit to the murder immediately, Mr Cummins said he claimed to have “every intention” of doing so but wanted to “get other aspects of his everyday life in order”. When asked if he found it unusual the Applicant planned this in the presence of his wife’s dead body, Mr Cummins said he did “to some extent” but noted that some people in these situations acted in “unusual, unpredictable, unexpected, and even inexplicable ways”.
(c) Mr Cummins conceded the list of documents at pages 2 and 3 of his report was incomplete because he had also been given documents by the Applicant, which were referred to in the body of his report. He agreed that he was not provided with incident reports from the Applicant’s imprisonment. That said, he claimed to have sufficient information to make assessments, including by applying his “general knowledge about what goes on in prison environments”.
(d) Mr Cummins agreed his opinion was an “outlier” in the context of the other expert reports, which referred to the Applicant as having a moderate and high recidivism risk, which he disagrees with. He also felt the other psychologists and psychiatrists misdiagnosed the Applicant with a personality order. Mr Cummins said the Applicant has a “pedantic personality style” and there is some “overlap” in the clinical indicators associated with personality disorder and the PTSD he diagnosed.
(e) Mr Cummins said he did not find the Applicant to be “obviously insincere or faking responses…or taking the session lightly”. He said the Applicant was a “harsh judge of people” and “quite opinionated”.
(f) Mr Cummins does not think the Applicant has any unmet rehabilitation needs and does not require intensive case management or supervision in the community if released. He said the Applicant is a resilient person who “does not regard himself as having unmanageable symptoms” and has learned how to adequately manage his PTSD. While he would encourage the Applicant to seek treatment, this was different to a judgement that he “unquestionably requires treatment”. Mr Cummins said the Applicant’s different approach to rehabilitation related “very much to his personality”, because he “prefers to interact with individuals [and to] be involved in individual treatment consultations” rather than in groups. He said the Applicant had an “obsessional style” and was “very fussy and opinionated”. He also refused to undertake some programs because they were voluntary rather than mandatory. When asked if the Applicant informed him he only undertook previous group programs because they were a parole requirement, Mr Cummins said he did not, but this was not inconsistent with the views he formed about the Applicant.
(g) Ms McInnes asked Mr Cummins whether other psychologists, who directly observed the Applicant for 90 hours during behavioural programs, were better placed to assess him. Mr Cummins responded: “Not necessarily”. He read these other reports but did not accept them as “Gospel”. Mr Cummins said the “real question is the interpretation placed” on the information gained from these observations.
(h) Mr Cummins was asked multiple questions about the HCR-20 he applied, including in comparison with Dr Godfredson’s HCR-20 assessment.[170] The Tribunal notes:
[170] Exhibit R1, 89-92.
(i)Both Dr Godfredson and Mr Cummins assessed the Applicant as having a history of problems with violence as an adult (“H1. Violence”) and both coded this as highly relevant.[171]
[171] Ibid 89; Exhibit A3.
(ii)Both Dr Godfredson and Mr Cummins assessed the Applicant as having a history of problems with “H3. Relationships”, but Dr Godfredson found this was “highly relevant”, whereas Mr Cummins considers it of “Low” relevance.
(iii)In terms of “H4. Employment”, Dr Godfredson observed that the Applicant experiences interpersonal conflict and “is probably most suited to working alone”, which caused him to assess this factor as “partially present and highly relevant”, whereas Mr Cummins assessed it as not present and of low relevance.
(iv)In terms of “H7. Personality Disorder”, Dr Godfredson said the Applicant “clearly meets the criteria for Paranoid Personality Disorder” and assessed this risk factor as “definitely present and highly relevant”. Mr Cummins assessed that no personality disorder was present.
(v)In terms of “H9. Violent Attitudes”, Dr Godfredson stated this risk factor was “definitely present and highly relevant”. Mr Cummins assessed the Applicant as not displaying violent attitudes, and therefore this risk factor was not present. Mr Cummins considers this conduct as “challenging authority in custody” and “cries for help” rather than violent attitudes.
(vi)In terms of “H10. Treatment of Supervision Response”, Dr Godfredson assessed the Applicant as “an unwilling and resistant participant” in one rehabilitative program and as demonstrating “limited gains in treatment which were not considered to amount to an overall reduction in his risk status”. He therefore coded this risk factor as “definitely present and highly relevant”. Mr Cummins assessed this factor as only partially present and of low relevance.
(vii)In terms of the Clinical Factors on the HCR-20, it is noteworthy Dr Godfredson assessed the Applicant as having poor insight into his personality functioning and psychological factors predisposing anger, in finding this risk factor is “definitely present and highly relevant”. Mr Cummins disagreed, stating the Applicant’s problems with insight were no longer present and therefore of low relevance. There was also disagreement regarding “C4. Instability”, with Dr Godfredson concluding the Applicant “exhibits chronic cognitive, affective and behavioural instability”, whereas Mr Cummins assessed this factor as absent.
(viii)In terms of the five risk management factors, Dr Godfredson assessed “R1. Future Problems with Professional Services and Plans” as “definitely present and highly relevant”, whereas Mr Cummins assessed it as either not present or partially present and of low relevance. Dr Godfredson assessed “R3. Personal Support” as “definitely present and highly relevant” given the Applicant’s “very limited support in the community”, whereas Mr Cummins assessed it as partially present and of low relevance. There was also disagreement about the presence and relevance of “R4. Treatment or Supervision Response” and “R5. Future Problems With Stress or Coping”.
(i)Mr Cummins’ oral evidence regarding the HCR-20 is now summarised:
(i)Mr Cummins agreed the accuracy of the HCR-20 was inexorably linked to the accuracy of the subject’s self-reported claims and documents consulted. He also agreed “in general terms” that if information is missing or untrue, this might lead to an incorrect assessment of risk factors.
(ii)Mr Cummins accepted that self-reported information has an inherent bias, which meant it was important to incorporate “observational evidence” like non-verbal cues. He accepted it was not possible to do this for consultations he undertook with the Applicant over the telephone. He also accepted it was “ideal” if observational evidence incorporating the Applicant’s engagement with others was part of the assessment.
(iii)Mr Cummins was asked about his assessment that factor “H2. Other Antisocial Behaviour” was not present in the Applicant’s historical factors. He agreed with Ms McInnes that he did not have access to the range of prison incident reports, which included the Applicant smearing his own excrement on walls and cameras. Mr Cummins said he did not “necessarily regard it as antisocial” and this behaviour is “not at all uncommon”. He stated: “It’s unpleasant, but prison is a stressful, toxic environment that traumatises prisoners and they respond to that”. He said “anti-authoritarian behaviour in a prison environment is extremely common”. When asked if the Applicant’s verbal altercations with staff and outbursts over a 20-year period reflected a “pattern of disrespect for authority”, Mr Cummins said this was “consistent with [the Applicant’s] attitude to authority over that time”, but he felt there was “no clear pattern of [anti-social] behaviour” and if there had been, he “would have placed more emphasis on it”. Ms McInnes put to Mr Cummins he could not form a definitive view about a pattern of anti-social behaviour without access to the incident reports he had not seen, which Mr Cummins disagreed with. When asked if he questioned the Applicant about threats made to custodial staff, Mr Cummins responded: “He said at times he would have made threats to prison staff and other detainees” but noted the Applicant was not charged with any criminal conduct while imprisoned. Mr Cummins accepted he was referring to charges in a Crimes Act sense rather than internal disciplinary hearings and sanctions. The Tribunal notes that in completing the HCR-20 risk instrument in 2019, Dr Godfredson also assessed “H2. Other Antisocial Behaviour” as absent, similarly noting the Applicant “could clearly be described as anti-authoritarian”.[172]
(iv)Mr Cummins was asked about his assessment that factor “H7. Personality Disorder” was not present in the Applicant’s historical factors. Mr Cummins said there needed to be “pervasive mistrust and suspiciousness” for the diagnostic criteria relevant to personality disorder to be established, and he did not see evidence of this. Mr Cummins agreed he did not see the brief of evidence in the Applicant’s murder trial and when asked about the Applicant’s distrust of his wife, agreed “that could well display a sense of distrust and suspicion”. Mr Cummins did not consider, however, this reached a “pervasive” level. He similarly disagreed the Applicant’s distrust and suspicion of prison authorities and others, including claims officers hid his books or acted to sabotage his case, met the “pervasive” requirement.
(v)Mr Cummins was referred to paragraph 69 of his report, in which he acknowledged information about the Applicant having “paranoid, obsessional and perfectionistic personality traits”, but noted that because this “assessment…[was]…undertaken whilst he has been incarcerated as opposed to being in the community, [he] did not form the opinion [the Applicant] is to be diagnosed with a Paranoid Personality Disorder”. When asked by Ms McInnes if it was possible to diagnose someone with a paranoid personality disorder in a custodial setting, Mr Cummins agreed it was, but on the “basis of [the Applicant’s] comments and presentation” during their consultation, he did not consider a personality disorder existed.
(vi)Mr Cummins was asked about his assessment that factor “H9. Violent Attitudes” was not present in the Applicant’s historical factors. He accepted the Applicant displayed a violent attitude at the time of the murder but stated: “My opinion subsequent to that is there has been no ongoing display of violent attitudes – no pattern”. Ms McInnes asked about the Applicant’s claim to a psychiatrist in immigration detention that if he did not get his own room he would go on “auto pilot” and things would “get ugly”. Mr Cummins stated that by “get ugly”, the Applicant could have meant several things, “including cries for help he has historically made”. Mr Cummins agreed he had not put this incident to the Applicant to determine what he specifically meant.
(vii)Mr Cummins was asked about his assessment that factor “H10. Treatment or supervision response” was only partially present in the Applicant’s historical factors, in circumstances where he has routinely not complied with clinician recommendations. Mr Cummins said the Applicant preferred individual treatment approaches and eschewed group programs. When asked about the Applicant’s claim to a psychiatrist about having a “perfect brain”, Mr Cummins thought this reflected “his sense of humour”.
(viii)Mr Cummins was asked about his assessment that factor “C1. Insight” was not present and of low relevance in the Applicant’s clinical factors, in circumstances where he continues to deny intending to kill his wife. Mr Cummins responded: “What’s absent is recent problems with insight, so it’s no longer a significant problem”. Ms McInnes asked if it was inconsistent to say at paragraph 62 of his report that the Applicant “accepts” he “caused the death of his wife”, because there is a big difference between accepting unintentional and premeditated murder. Mr Cummins disagreed that the Applicant’s position was inconsistent with accepting full responsibility for the murder. When asked by Ms McInnes if the Applicant’s evidence about the argument with his wife, which caused him to lose control and kill her were suggestive of him blaming his wife for precipitating a loss of control, Mr Cummins disagreed, stating: “At no stage did he say his deceased wife was in any way responsible for her death”.
(ix)Mr Cummins was asked about his assessment that factor “R1. Professional Services and Plans” was rated somewhere between not present and partially present in the Applicant’s risk factors. He agreed the Applicant is moderately institutionalised after 25 years in custodial settings but stated his ability to cope “could be” affected if released. When put by Ms McInnes that after 25 years in custody the Applicant would definitely have reintegration issues, Mr Cummins responded: “Not necessarily but it could be a possibility”, which is why he ticked both “absent” and “partially present” for this risk factor. He said the Applicant is “a very psychologically resilient and capable person” who would be “able to call upon those resources if and when released”. Mr Cummins said he was unconcerned about the Applicant’s ability to work and pursue his intended studies concurrently but agreed that if unable to achieve both, it “could impact significantly on his overall mental health”. When asked how, Mr Cummins said it “could exacerbate his symptoms of Complex PTSD”.
(x)When asked about risk factor “R2. Living Situation” being rated as not present, Mr Cummins agreed if the Applicant had to share accommodation this “could become a risk factor” because his “ultimate preference was to live on his own”. He agreed this was not highlighted in his assessment. When asked by Ms McInnes if this aspiration was currently beyond the Applicant’s reach, Mr Cummins said it depended on the “level of support he receives from [the friend he intends to live with]”. Mr Cummins was unaware the person the Applicant intended living with was convicted of attempted murder and multiple thefts or had met the Applicant while serving an eight-year sentence of imprisonment, for which he was released after a four-year non-parole period about 20 years ago. When asked by Mr Turner if in the circumstances of this friend’s offending it would change his assessment about the Applicant’s protective factors, Mr Cummins said this did not impact his opinion, but if he had known, he “would have asked further questions”.
(xi)In relation to risk factor “R3. Personal Support”, Mr Cummins rated this as partially present and thought in addition to his friend and religious mentor, the Applicant could “form friendships if he feels the need to do so”.
(xii)Mr Cummins was asked about his assessment that factor “R4. Treatment or Supervision Response” was rated somewhere between not present and partially present, in circumstances where the Applicant previously disengaged with clinicians he did not like and was often uncompliant in group settings. Mr Cummins said: “He may have difficulty – he’s an opinionated person. He’s a fussy person”. Mr Cummins said if “they spoke to him in a respectful manner, he’d contribute and benefit from the treatment provided”. When asked by Ms McInnes if the Applicant would disengage if he considered what was being offered was “not up to his needs”, Mr Cummins responded: “Yes”.
[172] Exhibit R1, 89.
Engagement with the Applicant’s claims about detention includes some matters that can be foreseen, and others that can only be undertaken with an element of speculation, the outer limits of which are indeterminate. In relation to the former, the Tribunal accepts he is unable to advance his study aspirations while detained, although there is no evidence to confirm he has yet been accepted to undertake the postgraduate studies he aspires to. The Tribunal accepts he is currently precluded from completing other studies he has commenced, which weighs in the Applicant’s favour.
The existence of non-refoulement obligations alone does not give rise to indefinite detention.[231] Moreover, in contrast with the assessment undertaken for recidivism risk, which is often informed by past convictions and expert evidence, considering the duration of a non-citizen’s detention encompasses future-focussed factors such as applications yet to be made, ministerial discretion yet to be considered,[232] potentially changed circumstances in a receiving country, the possibility of third-country relocation, voluntary request for removal, and other irresoluble branches and sequels of future events. This task is only exacerbated by the short statutory timeframe in which decisions must be made; in this case one working day after the hearing ends.
[231] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35, [96] (Wigney J).
[232] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
Having identified some of the potentialities, however, the Tribunal is not required to engage in speculation or fact-finding about future events,[233] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (Ali):[234]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[233] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[234] [2018] FCA 650.
In DOB18[235] at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[235] [2018] FCA 1523.
Tribunal findings: International non-refoulement obligations
There is no dispute about the receiving country for the purposes of s 5(1) of the Act.
The Tribunal accepts the Applicant is a person in respect of whom Australia owes non-refoulement obligations. Irrespective of future decisions yet to be made or options that might emerge, non-revocation would be a significant, adverse outcome for him. It gives rise to continuing and indeterminate deprivation of his personal liberty, with potentially significant impacts on the Applicant’s health, wellbeing, and ability to advance his study aspirations.
The Tribunal accepts there is no current evidence about potential ways the Applicant might be released from detention in the event of an adverse decision. His detention is now approaching three years, and, on current facts, will likely continue for an indeterminate period if an adverse decision is made. This may result in a deterioration of his mental health.
The Tribunal finds that in the specific circumstances of this case, including because of the prospect of indefinite detention, this consideration assumes the weight of a primary consideration and weighs very substantially in favour of revocation.[236]
[236] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Tribunal consideration: Extent of impediments if removed
Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Tribunal has considered medical records in evidence dated between 2019 and 2021, relating to the Applicant’s health. The Tribunal has also considered the Applicant’s oral claims about his health, which were summarised earlier.
No substantial language or cultural barriers are disclosed, although there is likely to be significant re-adaptation required to life outside of a custodial setting, irrespective of location. Importantly, the evidence discloses continued and positive engagement between the Applicant and his family overseas, including through telephone calls and the translated statements some family members have provided.[237] There is no reference in any of these statements from the Applicant’s siblings, niece, and nephew, to the events referred to by the Applicant as precluding his return and they describe him generally as a hard-working person who made a positive contribution to their family. In the event the Applicant were to return to his country of origin, there is no evidence he could not count on some measure of emotional or practical support from immediate family.
[237] Exhibit R1, 340-349.
The Applicant concedes that by virtue of his status as a refugee, which means he is not subject to removal, the consideration “extent of impediments if removed does not apply in [his] case”.[238] Mr Turner confirmed this during closing submissions. The Respondent agrees that this consideration does not apply in the circumstances.[239]
[238] ASFIC, 23 [91].
[239] RSFIC, 23 [89].
Tribunal findings: Extent of impediments if removed
The Applicant is owed protection obligations under the Refugee Convention. Because of s 197C(3) of the Act, the duty to remove him under s 198 of the Act therefore does not apply. It follows the extent of impediments he may face “if removed from Australia” does not currently arise and this consideration weighs neutrally.
Tribunal consideration: Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Mr Turner stated in closing submissions there is only one victim of the Applicant’s offending who is now dead. Ms McInnes submitted this consideration does not arise for another reason, namely that nothing is known from the victim’s family about the impact of a non-revocation decision.[240]
[240] RSFIC, 24 [90].
Tribunal findings: Impact on victims
There are undoubtedly surviving victims of the Applicant’s offending, most notably the victim’s children and members of her family. There is no evidence from them about the impact of a decision in this matter. This consideration is therefore not enlivened and carries neutral weight.
Tribunal consideration: Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence Australian business interests are enlivened within the meaning of the Direction. This aspect of the consideration therefore carries neutral weight.
Tribunal consideration: The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(xiii) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(xiv) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(i) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia as a mature man in his 30s and on a fabricated passport. He lived here illegally for a time before regulating his visa status. He murdered his wife within approximately seven years of arrival. His 30-year residence has mostly been spent in custodial settings.
The Applicant has been estranged from his wife’s children and other members of her family since the murder. All his immediate family live overseas[241] and Mr Turner confirmed that those immediate family members who provided supportive statements,[242] do not fall within the meaning of the Direction.
[241] Exhibit R1, 593; 601.
[242] Ibid 340-349.
The Applicant claimed in oral evidence he has “tried to do [his] best” since arriving in Australia. Evidence of his positive contribution, however, is sparse. He relied particularly on his educational accomplishments while imprisoned, work prior to imprisonment, and payment of taxes.[243] He also referred to donations made to his church and past involvement in cultural activities with his ethnic community.[244] In relation to the former, there are receipts in evidence of nine donations made to a church between October 2009 and February 2015 totalling $330.[245] The Tribunal accepts Mr Turner’s submission that this is not an insignificant amount in the context of someone who is imprisoned. The Applicant also claimed in documentary evidence that sadness arising from his wife’s death, and study of “Humanitarian laws”, caused him to “become a passionate advocate of the rights of women and children”. There is limited evidence to corroborate this claim, namely the Applicant’s participation in a White Ribbon event.
[243] ASFIC, 23 [89]; Exhibit R1, 129-130; 592; 600.
[244] Exhibit R1, 130; 486.
[245] Ibid 234-245.
The Tribunal has considered the references in evidence to ties the Applicant has in Australia, which Mr Turner summarised during closing submissions as primarily centred on a friend he met while imprisoned over 20 years ago, and a religious mentor he remains in contact with. There is no dispute these two people fall within the meaning of cl 9.4.1(2)(b) of the Direction. There are a limited number of other connections to Australia. The Tribunal has considered a statement from the wife of the Applicant’s friend.[246] This is in brief, general terms, is now almost three-and-a-half years old, and the author was not called as a witness. There is also nothing to confirm the author falls within the meaning of cl 9.4.1(2)(b) of the Direction. Little weight is consequently placed on this statement.
[246] Ibid 351.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant arrived in Australia as a mature adult and has no immediate family members here. He has been estranged from his stepchildren for a long time. The Court noted during sentencing he has few friends, which continues to the present day. There is no discernible impact of a decision in this matter on the close friend the Applicant relied upon during the hearing, this friend’s wife, or his religious mentor, beyond perhaps an emotional one. Given these relationships have been conducted through infrequent visits and predominantly telephone calls, emails, and letters since they were established, this would continue as before in the event of an adverse decision.
This consideration weighs slightly at best in favour of revocation.
Additional considerations
Several matters were either advanced by the Applicant or emerge from the evidence, which the Tribunal now considers under the non-exhaustive list at cl 9(1) of the Direction.
Applicant’s health
The Applicant claimed during oral evidence that it is “impossible” for him to properly address his respiratory condition in detention. Mr Turner submitted he “will get less treatment and care” for his health in detention “compared to out of detention”. It remains unclear to the Tribunal, despite the Applicant’s explanations, why this is the case.
The Applicant’s oral evidence about not knowing what respiratory condition he suffers from is unpersuasive. This is because the available medical records refer to asthma, including his disclosure of a history of asthma to IHMS staff, and several occasions where he required treatment for this condition.[247] Written submissions on the Applicant’s behalf, presumably under his instructions, also state he was “diagnosed with severe asthma”.[248] The Applicant stated he often declines treatment, preferring to remain in his room and uses a nebuliser permanently allocated to him. When he has needed more expert care, this appears to have been provided, including through several hospital admissions.[249] It is also clear he is able to complain about perceived treatment deficiencies and the Tribunal notes at least one Health Summary Report prepared for the Commonwealth Ombudsman.[250] The Applicant’s claim that a specialist told him “there are ways to minimise the condition” but only if he is released, rests on his assertion alone. When put to the Applicant that his respiratory condition would be no different whether he remained in detention or in the community, he conceded: “I don’t know if it’s possible to resolve this issue outside”.
[247] Exhibit R2, 13-16; 20; 22; 72; 90-92; 139; 151; 162; 174; 192; 196; 207; 280; 282.
[248] ASFIC, 5 [22].
[249] Exhibit R2, 102-105; 107; 194-195.
[250] Exhibit R2, 15-23.
The Tribunal does not accept it is “impossible” for the Applicant to address his medical needs while detained, including for asthma. No weight is placed on this consideration.
Continuing punishment
The Applicant submitted in documentary and oral evidence that his detention constitutes “an effective second punishment” and is therefore “unlawful”.[251] He said the authorities cited by the Respondent to the contrary[252] were distinguishable because they related to detention pending removal, which was not apposite. Mr Turner contended:
“Now, true it is there is a distinction between detention and incarceration. But in my submission, that’s a distinction without a difference. If it’s got barbed wire, if it’s got locked doors, if it’s got armed guards, it may as well be a jail. And [the Applicant’s] confinement to those with no likelihood of release would be a further punishment.”
[251] ASFIC, 2 [7]; 23 [88]; 24 [93].
[252] Al-Kateb v Godwin (2004) 208 ALR 124 (Al -Kateb); Lim v Minister for Immigration (1992) 176 CLR 1 27-32.
The contention that the Applicant’s detention is unlawful, or a second punishment, cannot be sustained. The Tribunal notes the Act provides for legal, administrative detention of unlawful non-citizens, through powers that are executive in nature and non-punitive.[253] The Tribunal referred during the hearing to O’Keefe v Calwell, in which Chief Justice Latham referred to action taken against a convicted immigrant as a measure of protection of the community and not further punishment.[254] The Tribunal also referred to Falzon at [96], where Justice Nettle cited previous High Court reasoning[255] in holding that immigration detention is legal, non-punitive, and involves no exercise of judicial power or intention to impose additional punishment.[256]
[253] Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, [29]; [88]; [93]–[94] (Falzon) (Nettle J); Al-Kateb v Godwin (2004) 219 CLR 562, [1] (Gleeson CJ).
[254] O’Keefe v Calwell (1949) 77 CLR 261, 278.
[255] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, [33]
[256] See also Falzon at [48], which referred with approval to Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 610 [74].
Mr Turner submitted that the authorities cited by the Tribunal were distinguished from the Applicant’s circumstances because they did not relate to indefinite detention for the “rest of the Applicant’s life”. The Tribunal is unable to predict future events but for the reasons previously adduced, does not accept an adverse decision inevitably consigns the Applicant to “life” in detention.[257] It is also clear the statutory purpose of executive detention is “not to punish for past offending for which appropriate sentences are determined by the exercise of judicial power”.[258] No weight is placed on this consideration.
[257] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199; Aliv Minister for Immigration and Border Protection [2018] FCA 650.
[258] VNPC v Minister for Immigration [2022] FCA 921, [19].
Possible breach of Article 1F of Refugees Convention
Ms McInnes submitted that the Applicant’s evidence about his conduct with an overseas Army may raise possible breaches of Article 1F of the Refugee Convention. She clarified this is not part of the Respondent’s case during the present hearing but emerges from the Applicant’s evidence to Mr Cummins and oral evidence during the hearing, which had not been referred to in previous materials. Mr Turner submitted it was not accepted the conduct referred to by the Applicant constitutes a war crime. The Applicant’s evidence regarding his purported conduct in combat has only been considered in the context of cl 8.4(2)(e) of the Direction. More detailed enquiries are necessary to determine any possible intersection with Article 1F of the Refugee Convention. No weight is placed on this consideration.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case.
The Applicant is owed non-refoulement obligations and non-revocation would represent a significant, adverse outcome for him. It gives rise to the prospect of indeterminate deprivation of his personal liberty, with potentially significant impacts on his physical and mental health. In finding that International non-refoulement obligations assumes the weight of a primary consideration in the specific circumstances of this case, including because of the prospect of indefinite detention, the Tribunal has departed from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant’s conduct reinforces the devastating consequences that can arise from violence by an intimate partner. Only one incident of family violence is disclosed, but premeditated murder of a spouse constitutes family violence of the most extreme kind. His conduct falls into a category of harm that any risk of repeat is so serious as to render it unacceptable.
The Applicant’s persistent misconduct in custodial settings is not to his credit. He also continues to present a revisionist narrative about his wife’s murder that impermissibly impugns the essential basis of his conviction. His purported acceptance of responsibility is grounded in a narrative that conflicts with the judicial findings against him and is rejected. Notwithstanding the commendable range of courses completed by the Applicant, the evidence enlivens continuing concerns about the extent of his remorse, insight, and rehabilitative progress. The Applicant’s circumstances are not such that he would be afforded a higher level of tolerance by virtue of having lived in Australia since a young age or for most of his life. The Australian community would expect that the mandatory cancellation of his visa should not be revoked.
Having regard for the Applicant’s relationships in Australia, there is no discernible impact on people he might have considered family in the past. In terms of broader links, these are very limited, and the possible impact does not extend beyond an emotional one.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the three relevant primary considerations considerably outweigh the combined weight to be given to International non-refoulement obligations, which has been afforded the weight of a primary consideration, and the other countervailing consideration.
DECISION
It follows that the Tribunal affirms the decision under review.
181. I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 26 August 2022
Date of hearing: 16, 17, 18 and 19 August 2022 Advocate for the Applicant:
Solicitors for the Applicant:
Mr Ray Turner
Turner Coulson Immigration Lawyers
Advocate for the Respondent:
Solicitors for the Respondent:
Ms Kylie McInnes
Sparke Helmore Lawyers
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