TTCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1475
•6 June 2024
TTCT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1475 (6 June 2024)
Division:GENERAL DIVISION
File Number: 2022/6825
Re:TTCT
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date: 6 June 2024
Place:Melbourne
The Tribunal affirms the reviewable decision.
……………[sgd]…………………………………………
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – Child (Class AH) (Subclass 101) Visa – citizen of Somalia – extensive criminal history – crimes of violence – polysubstance drug addiction – multiple sentences of imprisonment – formal warning regarding consequences of further offending – substantial criminal record – failure to pass good character test – non refoulement claims – Applicant eligible to apply for Protection Visa – impact of High Court decision in NZYQ – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 99 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
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
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
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
DLZZ and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3922
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
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
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Maxwell v R (1996)184 CLR 501
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, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
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
QDWQ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 178
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365
Rukuwai vMinister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451
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
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
6 June 2024
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Child (Class AH) (Subclass 101) Visa. The hearing was held at the Tribunal’s Melbourne Registry on 21 and 22 May 2024. The Applicant was represented by Mr David Carolan of counsel, instructed by Ms Clare Hughes of Refugee Legal. The Respondent was represented by Mr Jonathan Barrington of counsel, instructed by Mr Jack Mangos of Sparke Helmore Lawyers. The Tribunal was greatly assisted by the focussed submissions of both barristers and is particularly grateful to Mr Carolan and Ms Hughes for representing the Applicant on a pro bono basis.
For the following reasons the Tribunal affirms the reviewable decision.
BACKGROUND
The Applicant is a 39-year-old citizen of Somalia and the eldest child in his family.[1] He came to Australia at the age of 19 after living in a Kenyan refugee camp, which he has variously claimed was for either 10 or 15 years.[2] Other aspects of his early life are also unclear. For example, some records refer to him, two brothers, and their paternal grandmother becoming separated from the Applicant’s mother and sister, then living in a Kenyan refugee camp until the grandmother died when the Applicant was 14.[3] Some records make no reference to his grandmother,[4] while others state the Applicant, his mother, and siblings fled together to the Kenyan refugee camp.[5]
[1] Exhibit R1, 82.
[2] Ibid 194 [6], 810, 1004 [8], 1011 [63], 1017 [10], 1716, 2180 [58], 2907.
[3] Ibid 596, 1004 [8], 1006, 1017, 1791 [18], 2420 [3], 2440 [3].
[4] Ibid 1709, 1716.
[5] Ibid 335.
The Applicant has referred to witnessing and being subjected to extreme violence in Somalia and Kenya.[6] He has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) based on his account of these experiences.[7] Given that none of his family members involved in these events provided statements or were called as witnesses, there is no independent corroboration of the Applicant’s claims.
[6] Ibid 187, 196 [23], 335, 596, 695, 1017 [10].
[7] Ibid 196 [24], 205.
The Applicant and his two brothers arrived in Australia in 2003 under a Red Cross Family Reunification Program, where they lived with their mother and sister.[8] The Applicant has not left Australia since. He reportedly married soon after arriving in Australia and moved to Queensland, but the relationship ended in divorce within a short period and there were no children.[9] There are references to the Applicant having undertaken intermittent work, including as a labourer and in a factory.[10]
[8] Ibid 168.
[9] Ibid 83 [44], 98 [5], 187.
[10] Ibid 1007.
The Applicant has smoked cannabis, consumed alcohol, and used heroin and crystal methamphetamine (“ice”) since an early age.[11] There are reports of multiple heroin overdoses[12] and psychotic episodes, but conflicting evidence about the extent to which his psychosis arises from PTSD or poly-substance abuse.[13]
[11] Cannabis smoking is referred to as commencing in Kenya at either the ages of 10, 11, or 15. See Ibid 83 n 11, 84 [49], 86 [57] and n 27, 186, 195-7, 202-4, 209, 438, 809, 1792 [28]-[31], 1793 [28]-[30], 1794 [2], 1873.
[12] Ibid 1873-4.
[13] Ibid 197 [27], 205, 208, 647, 809-10, 883, 2800.
The Applicant’s crimes commenced soon after arrival in Australia and he has an extensive criminal history between 2005 and 2015.[14] His offending came to the attention of Departmental authorities in or about early 2008. A letter dated 25 February 2008 was sent to him at Port Phillip Prison where he was serving a term of imprisonment. The letter warned that ‘any further criminal convictions, or…other conduct [coming] within the scope of subsection 501(6), could result … in the consideration of the cancellation of [the Applicant’s] visa under section 501 of the Act’.[15] The Applicant continued to reoffend, causing the Department to write to his authorised recipient in September 2011, advising that consideration was being given to cancelling the Applicant’s visa on character grounds. On 10 February 2012, the Applicant was advised through his authorised recipient that a decision was made not to cancel his visa, but the following formal warning was issued, which the Applicant acknowledged in writing:[16]
‘Please note that visa cancellation may be reconsidered if you commit further
offences or otherwise breach the character test in future. Disregard of this
warning will weigh heavily against you if your case is reconsidered’.
[14] Ibid 62-5.
[15] Ibid 107-8.
[16] Ibid 104-6.
The Applicant continued to reoffend. In September 2014, after contesting charges at a committal hearing that included attempted murder, the Applicant pleaded guilty to Intentionally cause serious injury. On 16 December 2014, he was convicted of this crime by the Supreme Court of Victoria and sentenced to six years’ imprisonment.[17]
[17] Ibid 1747.
PROCEDURAL HISTORY
This matter has a long procedural history as follows:
(a)On 7 February 2017, in consequence of the Applicant’s December 2014 convictions, the Minister acting personally, cancelled his visa under s 501(3A) of the Act.[18] The Applicant acknowledged this on the same day.[19]
[18] Ibid 67-72; Migration Act 1958 (Cth) (‘The Act’).
[19] Exhibit R1, 73.
(b)The Applicant made representations through his legal representative to have the visa cancellation revoked.[20] On 1 May 2019, he was released from a correctional facility and immediately placed by the Commonwealth into immigration detention where he has since remained.[21]
[20] Ibid 109-482.
[21] Ibid 491.
(c)On 21 October 2020, the Minister personally declined to revoke the visa cancellation decision (“non-revocation decision”).[22]
[22] Ibid 1664.
(d)The Applicant appealed the non-revocation decision to the Federal Court of Australia (“FCA”). On 16 July 2021, Snaden J quashed the Minister’s decision by consent of the parties on the basis that the Minister had failed to consider the Applicant’s representations regarding indefinite detention. The application was remitted for redetermination according to law.
(e)On 22 August 2022, a delegate of the Minister decided not to revoke the cancellation decision (“second non-revocation decision”).[23] The Applicant was advised of this through his legal representative on 23 August 2022.[24]
[23] Ibid 12.
[24] Ibid 8-56.
(f)On 24 August 2022, the Applicant asked the Tribunal to review the second non-revocation decision.[25]
[25] Ibid 1.
(g)On 15 November 2022, a differently constituted Tribunal declined to do so.[26] The Applicant again appealed to the FCA.
[26] Ibid 2810-81.
(h)On 15 November 2023, O’Callaghan J quashed the second non-revocation decision by consent of the parties and remitted the matter for determination according to law:
‘Consistent with ground 3a of the applicant’s amended application filed 20 October 2023, the first respondent concedes that the reasons given by the second respondent at [110]-[111] for rejecting the applicant’s submission that his mental health issues had been untreated when he offended were sufficiently illogical and/or irrational to give rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, 648–650 [130]–[135] (Crennan and Bell JJ).
In reaching this conclusion, the second respondent drew an inference that the applicant’s mental health issues would need to have been ‘“permanent” that is, fully diagnosed and treated’ to have qualified for a disability support pension for his mental health issues, by reference to the Social Security Act 1991 ([111]). The first respondent concedes that, in light of the material before the second respondent, this was an illogical and/or irrational basis for the second respondent to reject the applicant’s submission that he was untreated when he offended’.
(i)On 26 November 2023, approximately three weeks after the High Court’s decision in NZYQ,[27] the Applicant was granted a Bridging (Removal Pending) Visa (“BVR”) and released from detention.[28] A necessary precondition for the grant of a BVR to an ‘Eligible non-citizen’ is, amongst other things, that ‘the Minister is satisfied that the non - citizen's removal from Australia is not reasonably practicable at that time’.[29]
(j)The joint judgement in NZYQ is summarised as follows:
‘…the Court…held that there were constitutional limitations on the continuing executive detention of unlawful non-citizens that is authorised by ss 189(1) and 196(1) of the Migration Act. In substance, the Court held that continuing detention under those provisions is unlawful if there is no real prospect of removal of the unlawful non-citizen becoming practicable in the reasonably foreseeable future’.[30]
(k)Strict reporting and monitoring conditions have been applied to the Applicant’s BVR,[31] breaches of which may constitute a criminal offence and result in mandatory imprisonment.[32]
(l)After the remitted application was re-constituted within the Tribunal, a case management hearing was held on 1 February 2024 to issue scheduling orders.
[27] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ').
[28] Exhibit R1, 2886.
[29] Migration Regulations 1994 (Cth) sub-reg 2.20(12)(b).
[30] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451, [27] citing NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37.
[31] Ibid 2890-903.
[32] The Act (n 18) Subdivision AF. See, eg., ss 76B, 76C, 76DAA, 76DAB, 76DAC, 76DA, 76E.
LEGISLATIVE FRAMEWORK
The Tribunal’s jurisdiction to review a non-revocation decision by a Ministerial delegate is enlivened by s 500(1)(ba) of the Act read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).[33]
[33] Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
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).
Subsection 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.
Subsections 33(1)(a)–(b) of the AAT Act provides that the procedure of the Tribunal is within the discretion of the Tribunal and ‘shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit’. Subsection 33(1)(c) of the AAT Act states that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.
ISSUE TO BE DETERMINED
Because of the Applicant’s conviction on 15 December 2014 and six-year sentence of imprisonment, 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 to be determined 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.[34] The Tribunal is said to ‘stand in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[35] based on material currently before it.[36]
[34] 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).
[35] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314 [96]-[98] (Hayne and Heydon JJ), 324 [134] (Kiefel J) (‘Shi’); Nathanson v Minister for Home Affairs [2022] HCA 26 541 [7] (‘Nathanson’).
[36] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson (n 35); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Beezley v Repatriation Commission (2015) 150 ALD 11, [68]; Shi (n 35) 299 [40], 315 [100], 324-5 [134].
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs has reflected with approval upon the reasoning in Viane[37] 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.
[37] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 (‘Bettencourt’); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021, the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be addressed:[38]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[38] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 99
In making its decision, the Tribunal must comply with a ministerial direction made under s 499(1) of the Act, known as “Ministerial Direction 99” (“the Direction”).[39]
[39] The Act (n 18) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson (n 35), 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 3 March 2023) (‘The Direction’).
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.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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 the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia;
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)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 ‘[p]rimary 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 of or greater weight than a primary consideration.[40]
[40] 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.[41]
EVIDENCE
[41] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)Remittal documents lodged by the Respondent numbering 3243 pages;[42]
(b)Applicant’s undated and unsigned four-page statement;[43]
(c)Statement of Service from an employer dated 29 April 2024 and Letter of Engagement dated 6 January 2024;[44]
(d)Notice of visa grant and conditions – Class WR Bridging R (subclass 070) visa dated 13 March 2024;[45]
(e)Undated one-page letter from Foundation House;[46]
(f)Notice of variation to condition 8620 dated 17 May 2024;[47] and
(g)Letter from Jesuit Social Services dated 13 May 2024.[48]
[42] Exhibit R1.
[43] Exhibit A1.
[44] Exhibit A2.
[45] Exhibit A3.
[46] Exhibit A4.
[47] Exhibit A5.
[48] Exhibit A6.
Oral testimony
Only the Applicant and a Project Officer from Jesuit Social Services were called as witnesses. The Applicant’s evidence was heard in person, mostly on the first hearing day. The Applicant spoke good English but was also provided with the services of an interpreter in the Somali language. He used the interpreter infrequently. The Project Officer from Jesuit Social Services gave evidence by video.
Applicant’s evidence
At the commencement of the Applicant’s evidence Mr Carolan referred to the Applicant having been assessed by a clinical neuropsychologist in 2014 as having a ‘mild-moderate’ intellectual disability.[49] The hearing procedure adopted by the Tribunal took account of this, with care taken to ensure the Applicant understood questions, had breaks, and could avail himself of assistance from the interpreter if required.
[49] Exhibit R1, 208.
The Applicant gave oral evidence under oath and adopted Exhibit A1 as true and correct. He said that he wrote this 22- paragraph statement himself but his lawyer typed it up. His testimony is summarised as follows:
(a)The Applicant recalled being placed in a hotel for about a month after release from immigration detention in late 2023, where he stayed with other former detainees. He claimed that he ‘distanced’ himself from them ‘because they don’t do anything’ and illicit drugs and alcohol were present. The Applicant said he has not used alcohol or drugs since his last imprisonment because he does not want to ‘go back to jail’. The Applicant said his conditions of release under a BVR include a curfew, reporting requirements, and having to wear a monitoring device. He understands that any breach may result in re-imprisonment.
(b)The Applicant said he successfully applied for a labourer’s position after release from immigration detention by ‘looking through newspapers’, making enquiries through the ‘job network’, using his telephone and a computer at Foundation House, and personally ‘going into offices’.[50] His role in a factory involved manual handling of steel fabrication equipment, cleaning, and other tasks between 6:00 am and 3:00 pm Monday to Friday. His employer granted him a slightly later start because his BVR curfew did not end until 6:00 am and he utilised taxis to get to work on time.
[50] Exhibit A2.
(c)The Applicant agreed that his employment ended on 17 April 2024 after a three-month probationary period. He denied that he did not pass probation and said his employer knew about his criminal history. He instead attributed the end of his employment to a well-publicised incident in Sydney where a Christian bishop was stabbed.[51] He claimed that ‘no-one gave [him] a chance because of the bracelet on [his] leg, that some workmates called him a ‘rapist’ and terrorist…after the guy got stabbed in church’. He claimed that work colleagues complained to his Manager, and he was sacked without explanation. The Applicant was asked by Mr Barrington about his most recent statement, which is dated seven days before he was sacked, in which he refers to enjoying his work, learning new skills, and his employer ‘knows everything…[about his] criminal history and [his] current visa issues’.[52] The Applicant insisted that in the week leading up to the stabbing incident ‘things changed’ and his co-workers were no longer nice to him or accepting of his tracking bracelet. When put by Mr Barrington that the Sydney stabbing incident occurred on the evening of 15 April 2024, and it was therefore implausible he was sacked for the reasons expressed on 17 April 2024, the Applicant insisted he was dismissed without a ‘chance to explain’. When asked why his employer did not support him if he knew ‘everything’ about the Applicant’s criminal history, the Applicant said his employer did not know that much about his crimes. He also attributed his sacking to being ‘the new guy’ who other workers did not want to ‘be around’.
[51] Mark Baker and Rod McGuirk, ‘Tensions rise in Australia after a bishop and priest are wounded in a knife attack in a church’, Associated Press News (online, 16 April 2024) < Exhibit A1, [6], [8], [21]-[22].
(d)The Applicant said has looked for other work since being dismissed and found ‘plenty of job opportunities on night shift’. He said there is nothing except his BVR conditions preventing his immediate return to work. It emerged at this point of the Applicant’s oral testimony that he had applied to vary the curfew condition on his BVR to end at 5:00 am, to enable him to get to work using public transport instead of taxis. This was recently approved by the Respondent. The Tribunal directed the Applicant to tender this notice of variation and it was subsequently provided.[53]
[53] Exhibit A5.
(e)The Applicant said he used to receive a Disability Support Pension before being imprisoned in 2013. Since release he has independently obtained Medicare and Healthcare cards. He has also moved into a ‘cabin’ within the same hotel complex he was initially placed in and he pays $280 weekly in rent. He has about $2000 in savings and confirmed he receives no assistance with self-care tasks such as washing, cooking, cleaning, and shopping. This evidence is in stark contrast with claims made on his behalf by Refugee Legal in August 2022 that he requires NDIS support, his ‘self-care is neglected’, he relied on the support of ‘prisoner helpers’, and needs to be assisted with ‘even the simplest of everyday tasks such as showering, cooking, and cleaning’. This is later discussed.
(f)The Applicant has applied to have his driver’s licence restored but claims to have been advised by VicRoads that because of the passage of time he needs to undertake a computer and driving test. The Tribunal notes evidence of past licence cancellation and disqualification for periods or up to two years,[54] and a VicRoads notice dated 21 September 2022 that the Applicant is unlicenced.[55]
[54] Exhibit R1, 1751.
[55] Ibid 1849.
(g)The Applicant claimed to have spoken with a maternal uncle since release but said his mother and siblings want nothing to do with him. He does not know if his siblings are aware of his release. When asked by Mr Barrington about any friends in the community, the Applicant said he has none. The Applicant said he attends a Mosque regularly but experiences issues when washing his feet prior to prayers because others can see the tracking bracelet on his ankle. He claimed not to engage with other worshippers: ‘I go there to pray not make friends’. When asked the name of the Mosque, the Applicant could not recall, but referred to a road he claims it is located on. When asked the name of the Imam at this Mosque, the Applicant could not recall. The Applicant said he does not engage in other social activities because the ‘curfew holds [him] back’. He would like to play soccer but said the ankle tracking device is heavy and he ‘can’t train with it’.
(h)When asked about medications, the Applicant said he currently only takes two: Seroquel for his mental health and to help him sleep; and a high blood pressure medication. He sees a general practitioner when his prescription needs to be renewed. The Tribunal notes open-source information that Seroquel is used to treat mental health and mood disorders, but also helps with sleep. When asked by Mr Carolan how his mental health is, the Applicant replied: ‘It’s good’. When asked by Mr Barrington if he has received any referrals from his general practitioner to see a psychologist or psychiatrist, the Applicant responded ‘no’. He claimed to have previously been diagnosed with bipolar disorder, schizophrenia, and experienced hallucinations. The Applicant said he is not currently experiencing hallucinations and does not feel that he needs his mental health medication anymore. When asked by Mr Barrington what the hallucinations involved, he said they related to witnessing his ‘family get hurt in front of [him]’ in Somalia. The Applicant said he has also been diagnosed with PTSD and self-medicated with illicit drugs and alcohol to manage this condition. He is not currently experiencing PTSD symptoms and said he is aware of the importance of managing his mental health due to relapse risk.
(i)In terms of drug and alcohol use, the Applicant agreed he started using cannabis and Khat [56] at a young age while living in Kenya.[57] In Australia he started drinking alcohol because he wanted to feel ‘accepted’, ‘cool’, and ‘have fun after work on Fridays’. He agreed that his cannabis use in Australia was between 2-3 grams a day, recalled drinking between 3-4 bottles of Sherry a day, and later progressed to daily use of heroin and ice. His substance abuse caused problems with his family who are Muslims. He lost his job, was ‘kicked out of home’, and said he ‘lost everything’. He recalled convictions in 2007 for breaching intervention orders, assault, and making a threat to kill, which he said occurred during a family argument. His family members took out the intervention orders because they did not want to see him, but the Applicant claimed he never received a copy of this. The Applicant explained he was ‘very drunk…and had nowhere else to go’. He stated: ‘I didn’t hurt anyone – I didn’t want to kill anybody’ and claimed that if he did, he would ‘be doing 10 to 15 years in jail’. The Applicant agreed that he sent handwritten letters to the Department after this incident stating he feels sorry for what he did, wanted to stay off drugs, and intended to ‘get on with life’.
(j)The Applicant recalled receiving letters in 2008 and 2011 from the Department about his offending. When asked what he understood these letters conveyed, he said: ‘If I go to prison again, I’d get deported’. He said the letters were received by his lawyers and he was called into the office to sign an acknowledgement.
(k)The Applicant said he engaged at times in ‘arguments’ when intoxicated or drug affected and recalled thinking ‘I’m going to hurt you first before you hurt me’. When asked about his 2014 conviction for Intentionally cause injury, the Applicant claimed he acted in ‘self-defence’ and ‘still [doesn’t] know where the knife came from’. He claimed that his lawyer asked him to plead guilty, which he did. The Applicant said he served the entirety of his six-year sentence.
(l)The Applicant referred to being assaulted while imprisoned and said he was placed in a coma once. He said the assault occurred because he was mistaken for someone else. He received Victims of Crime compensation twice but could not recall the precise amounts. He estimated the total received for both claims was $3000. After completing his sentence, the Applicant recalled being taken into immigration detention, which he found ‘more difficult’ than prison. He said that during five years in detention he ‘learned nothing’ because of fewer rehabilitative opportunities.
(m)The Applicant was asked questions about misconduct in custodial settings. This included an incident on 10 January 2023.[58] He accepted the accuracy of this report, characterised it as a ‘mistake’, and said he was sorry. He also agreed that he engaged in disruptive behaviour such as throwing rubbish bins.[59] He recalls becoming ‘frustrated’ and making bad decisions. When asked about reports that he passed items to and from other detainee compounds in immigration detention, the Applicant said it was cigarettes being passed. When asked about reports of him abusing female staff during an incident at the gym, the Applicant claimed he was ‘silly, young, and dumb … I’m sorry for that'. He said it ‘wasn’t a big deal’ but the female staff member ‘called a code’ and the Emergency Response Team attended. He denied saying the specific things attributed to him during this incident. When asked about multiple reports about him using drugs in custodial settings, including most recently in mid-2023,[60] the Applicant stated that each report is ‘not true’.
(n)In terms of rehabilitation, the Applicant referred to courses he completed in prison relating to substance abuse, anger, and problem-solving. He also referred to past participation in the Methadone program, which he claimed to have voluntarily ceased in 2016. He said that he has ‘learned [his] lesson’, is a ‘good person’, wants ‘to get help for mental health’, and has not been ‘involved with police’ since release.
(o)The Applicant said his first engagement with Foundation House was after a period of immigration detention in Perth. He could not recall how many sessions he attended but accepted that his evidence at the last Tribunal hearing about this was accurate.[61] He agreed with Mr Barrington that he ‘stopped seeing [Foundation House] for a while’ despite finding the sessions helpful and having the opportunity to continue. When asked why he chose not to continue, the Applicant responded: ‘I don’t know’. In response to further questions about why he did not reconnect with Foundation House, the Applicant claimed to have lost his telephone in immigration detention and ‘didn’t have their number’. He agreed that he was again referred to Foundation House in November 2023 by a case manager at Life Without Borders. When asked how many times he has been in contact with Foundation House since his release in late 2023, the Applicant could not recall but said he has a telephone appointment later in the week. He agreed that the most recent letter from Foundation House accurately sets out their sessions to date.
(p)The Applicant was asked about his engagement with Jesuit Social Services and said he found them helpful. He claimed they ‘only work for housing for people 18 to 24’ and because he is now 30, the support he receives is limited. He said they previously paid for a two-bedroom house he occupied, picked him up from prison, and gave him a mobile telephone. They currently ‘just talk to [him]’, but he also goes to their office to use a computer and for practical support such as ‘food’.
(q)When asked by Mr Carolan how he feels about his past offending, the Applicant replied ‘sorry’. When asked what he had learned from the courses he has undertaken in custody, the Applicant responded: ‘how to walk away when things get hard – not to push it … listen … be responsible for your actions’.
[56] A leaf native to parts of Africa that is chewed and has amphetamine-like qualities.
[57] Exhibit R1, 186.
[58] Ibid 3196.
[59] Ibid 3183, 3186, 3188.
[60] Ibid 2954, 2956, 2968, 2989, 3029.
[61] Ibid 2837 [103].
Evidence of a Senior Project Officer from Jesuit Social Services
A Senior Project Officer from Jesuit Social Services, who the Tribunal will refer to as “NJ”, adopted Exhibit A6 as true and correct. NJ said he has Diplomas in Community Work and Drug and Alcohol Support. He has overseen the African Visitation and Mentoring Program (“AVAMP”) since 2019. He said the Applicant has engaged with this service since 2011 and several community mentors have assisted him ‘with role modelling to help him prepare for reintegration into the community’. NJ said participation in AVAMP is voluntary and it is a ‘testament’ to the Applicant’s commitment that he has continued to engage. NJ was unaware of when the Applicant and his mentor last spoke, but believes it was in the last year. He does not know why there is no letter from the mentor in the current proceeding and said this is not an obligation AVAMP imposes on their mentors.
NJ was unaware the Applicant was released from immigration detention until he ‘turned up at the door’ of their office. They discussed the Applicant’s addictions, criminal history, and sacking in April 2024. In terms of community involvement, NJ is aware of the Applicant spending time at a Mosque but does not know of other community engagement.
NJ said the Applicant can be given practical assistance from AVAMP such as groceries, computer access, and ‘brokerage support’ for a portion of rent. Referrals can also be provided to organisations like the Salvation Army for housing and mental health support, and to an organisation called ‘Muslim connect’ to help the Applicant find another job. NJ has not yet made any housing or employment referrals for the Applicant. He said the services provided by AVANP are not subject to an ‘age limit’. NJ is unaware how much money the Applicant has or how long he can stay in his current accommodation.
NJ was asked by Mr Barrington about the summary contained in his letter about the Applicant’s progress during the last six months, and why this was a word-for-word copy of a summary provided by one of his predecessors more than seven years ago.[62] NJ accepted that the text in both letters is identical but insisted the contents nevertheless reflect his current opinion about the Applicant’s progress.
[62] Ibid 146.
When asked why AVAMP mentoring and support since 2011 had not assisted the Applicant in remaining abstinent and law-abiding, NJ responded: ‘I don’t know. Most participants need other things’. When asked what these other things are, he responded: ‘stable employment, stable housing, and positive community connections’.
Expert Evidence
There is no recent expert evidence from a psychologist or psychiatrist in this matter. The Tribunal has considered several somewhat dated reports as follows:
Report of Mr Warrick Brewer
A report by clinical neuropsychologist Associate Professor Warrick Brewer dated 2 September 2014 was commissioned by the Applicant’s then barrister.[63] Associate Professor Brewer noted the Applicant was then on the Methadone Program and concurrently used 2-3 points of ice, 3 grams of cannabis, and a six-pack of bourbon on the day of the stabbing offence. Reference is made to a 2012 diagnosis by Dr Wickramasinghe of drug induced psychosis and PTSD. Associate Professor Brewer assessed that the Applicant has an impaired overall intellectual ability in the ‘low average range’, but ‘no real evidence to support a current diagnosis of Schizophrenia, but rather suffers likely ongoing substance induced psychosis and/or psychosis secondary to PTSD’. A CT scan of the Applicant’s brain in 2011 was noted as ‘unremarkable’ and he was ‘seropositive for Hepatitis C’. Associate Professor Brewer further noted:
‘The overall neuropsychological profile reflects a man whose cognitive function appeared adequate at least to learn English relatively rapidly leading up to and upon his arrival in Australia. CT Scan evidence in 2011 at least reflects no remarkable features consistent with organic neural compromise. From the available reports, [the Applicant’s] main vulnerabilities upon his arrival in Australia were his compromised emotional state from exposure to war atrocities resulting in mood instability associated with PTSD, loss of significant attachments and significantly compromised education. His intellectual capacity at that time, from the limited evidence, suggests that he was low average in his basic function. His psychotic symptoms from his reports did not elevate until he began relying upon illicit substances and alcohol. Since then, multiple overdoses and closed and open head trauma appear to have compounded his intellectual vulnerabilities to the extent that his function is significantly impaired. This pattern is consistent with a mild-moderate acquired brain injury.
With respect to [the Applicant’s] mental and cognitive state at the time of the alleged offending, he states that he had not been taking his medication. From his report, he had been using alcohol in the hours leading up to the altercation which from his report leaves him 'more aggressive’. Moreover, he states that he had been using cannabis and methamphetamine daily. Whilst this amalgam of risks would leave the average person [the Applicant’s] age at very high risk for impulsive, disorganised and erratic behavior, his established history of PTSD and psychosis, specifically associated with highly traumatic personal threats, ongoing instability of mental status and cognitive vulnerabilities associated with his ABI would be expected to leave [the Applicant’s] highly likely to react with extreme and mindless aggression in situations of high emotional arousal. His learned response from early childhood is fight or flight with extreme personal consequences either way. Whilst it is not possible to state exactly what his mental state was at that time of the alleged offending, his account that reflects incomplete recall is nevertheless consistent with his history of acute trauma’.
(Errors in original).
[63] Ibid 199-215.
Report of Dr Danny Sullivan
Consultant Psychiatrist Dr Danny Sullivan prepared a report dated 16 January 2014, which was commissioned by the Applicant’s then criminal lawyers.[64] Based on the Applicant’s claims, Dr Sullivan assessed him as meeting the diagnostic criteria for PTSD, with features of depression and anxiety. The Applicant was also diagnosed with severe substance use disorder involving alcohol, cannabis, methamphetamine, and heroin.[65] The Applicant’s hallucinations were assessed as ‘most likely associated with PTSD and substance use’.[66] Dr Sullivan stated there was ‘no clear indication of cognitive impairment’ but the Applicant ‘impresses as of borderline intellect’.[67]
[64] Ibid 193-8.
[65] Ibid 196-7.
[66] Ibid 197.
[67] Ibid.
Report of Dr Linda Borg
Clinical neuropsychologist Dr Linda Borg referred in her report dated 26 April 2011 to the Applicant being diagnosed with PTSD and schizophrenia.[68] It was noted the Applicant had: chewed Khat in Somalia; used cannabis since the age of 11 or 12 in Kenya, which increased to 20-30 bongs daily after arrival in Australia; used alcohol daily since arriving in Australia in 2003; used about one or two grams of heroin daily since 2004; 2-3 grams of ice daily for several months; and other drugs like ecstasy and magic mushrooms on a few occasions.[69] The Applicant’s personal history was summarised by Dr Borg as follows:
‘[The Applicant] was born in Somalia. He is the eldest child, with three brothers and one sister. He lived in Somalia until the age of 8-9 years before the civil war broke out. In 1993, his home was raided and [the Applicant] was witness to his mother being raped, his brother’s hand being severed and his father’s ears being cut off and stuffed in his mouth before he was shot dead. He and his mother then buried his father in the front yard the following day. In the months that followed, [the Applicant] found eight beheaded bodies of local villagers and was witness to a number of other atrocities. He eventually escaped and fled to Kenya, with two of his brothers after they were separated from their mother. They were taken into a United Nations refugee camp where they were given shelter and education for the next ten years.
At the age of 19 years, [the Applicant] was found by a Red Cross service aimed at reuniting families, after his mother (who had since moved to Australia) sought them out. He was then sponsored as a refugee in 2003 and came to Australia. [The Applicant] found it hard to adjust to life in Australia and has lived a transient lifestyle due to conflict with his family over his substance abuse. He was previously married. However, this union ended after one month due to reported conflict with his ex-wife’s family. [The Applicant] currently resides with one of his brothers’.[70]
[68] Ibid 185-92.
[69] Ibid 186.
[70] Ibid 187.
Dr Borg assessed the Applicant’s cognitive issues were reflective of prolonged polysubstance abuse and said ‘if he continues to use at the levels reported, he will also sustain permanent substance related brain injury’.[71] Dr Borg referred to the trauma the Applicant was reportedly exposed to at a young age and ‘the impact this appears to have had on future development’, which made it ‘highly likely’ there had been ‘permanent structural changes within the brain’.[72] Other potential contributing factors were noted to be ‘multiple overdoses and loss of consciousness secondary to a prior assault’,[73] and the Applicant’s lack of education. Dr Borg assessed that the Applicant ‘needs a holistic treatment plan in order to ensure that he lives to see his thirties and forties’ because he was ‘barely existing…and is using drugs and alcohol as a means of blocking out his past’.[74]
PRIMARY CONSIDERATIONS
[71] Ibid 190.
[72] Ibid.
[73] Ibid.
[74] Ibid.
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.
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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: Nature and seriousness of the conduct
The Applicant’s extensive criminal history is summarised as follows:[75]
[75] Ibid 62-5.
(a)Over 50 convictions are recorded against him during 11 court appearances between 2005 and 2015, including for crimes involving violence or the threat of violence.
(b)The Applicant’s early offending between 2005 and 2006 was predominantly dishonesty related and the courts dealt with it through conditional liberty undertakings and without recording convictions. The Applicant nevertheless continued to reoffend.
(c)The Applicant’s first conviction was for public drunkenness in December 2006, approximately seven weeks into an 18-month period of probation ordered on 30 October 2006. The Applicant continued to reoffend.
(d)The Applicant’s first sentence of imprisonment followed convictions on 8 February 2007. This was for four counts of breaching an intervention order taken out to protect his family members, making a threat to kill, unlawful assault, three counts of failing to answer bail, two counts of intentionally destroying property, and theft. He received a sentence of 60 days imprisonment, all but six days of which was suspended. The Applicant breached the suspended sentence through further offending.
(e)On 20 November 2007, the Applicant was convicted of Armed robbery and breaches of conditional liberty orders arising from his February 2007 convictions. He received a sentence of 30 months’ imprisonment for the Armed robbery, 3 months’ imprisonment (concurrent) for a further breach of an intervention order and had the partially suspended component of his February 2007 sentence wholly restored. The armed robbery offence was committed against husband and wife store owners who the Applicant threatened with a knife. Sentencing remarks from the County Court of referred to the shop he robbed as a ‘soft target’.[76]
[76] Ibid 101 [18].
(f)On 8 November 2010, the Applicant was convicted of two counts of possessing a controlled weapon without excuse, carrying a dangerous article in a public place, criminal damage, theft, and public drunkenness. He received an aggregate sentence of two months’ imprisonment (concurrent) on each charge, with the sentences wholly suspended for six months. He breached the suspended sentence by reoffending.
(g)On 3 August 2011, the Applicant was convicted of the following, which resulted in a total effective sentence of 14 months’ imprisonment:
(i)Attempt robbery of a bottle shop (10 months’ imprisonment – base sentence);
(ii)Recklessly cause injury (8 months’ imprisonment, with four months to be served concurrently);
(iii)Attempted theft of a motor vehicle (6 months’ imprisonment concurrent);
(iv)Criminal damage (4 months’ imprisonment concurrent);
(v)Burglary (3 months’ imprisonment concurrent);
(vi)Unlawful assault (1 month imprisonment concurrent);
(vii)Theft (four counts) (1 month imprisonment concurrent for each count);
(viii)Attempt theft (1 month imprisonment concurrent);
(ix)Criminal damage (1 month imprisonment concurrent and compensation);
(x)Fail to stop vehicle after an accident (two counts), for which he received 7 days imprisonment on each count (concurrent); and
(xi)The Applicant was also convicted and discharged for failing to answer bail, using heroin, and three counts of public drunkenness. Because he breached orders from his 8 November 2010 convictions, the suspended sentences were wholly restored.
(h)On 21 August 2012, the Applicant was convicted of theft, for which he received a sentence of one month imprisonment (wholly suspended);
(i)On 18 December 2012, the Applicant was convicted of Theft, Possess housebreaking implements, and Without authority / excuse enter private place, for which he received sentences of two months’ imprisonment, wholly suspended.
(j)On 16 December 2014, the Applicant was convicted of Intentionally cause serious injury in the Supreme Court of Victoria.[77] He was sentenced to 6 years imprisonment with a four-year non-parole period. The presiding Judge declared the Applicant a ‘serious violent offender’ pursuant to Part 2 of the Sentencing Act 1991 (Vic). The offending, which occurred on 8 June 2013, is summarised as follows:
(i)The Applicant, his victim, and a mutual friend injected ice at the friend’s house. The Applicant’s counsel told the Court the Applicant had also smoked 3 grams of cannabis and drank six cans of mixed bourbon that day.
(ii)An argument ensued between the Applicant and victim over drugs. The Applicant obtained two knives from the kitchen and a fight ensued.
(iii)The Applicant cut the victim’s head, pursued him when he fled, and, after the victim fell on the road, stabbed him three times in the torso, once in the upper left thigh, and above the knee. The sentencing judge noted that the full length of a 20 cm knife was embedded in the victim’s stomach and the blade had bent. The Court held that notwithstanding the Applicant’s PTSD and intellectual disability, he would have appreciated when stabbing the victim twice in the stomach, that the victim ‘was already seriously injured and posed no physical threat’.[78]
(iv)The Applicant threw the larger knife onto a garage roof and hid the smaller knife in bushes. He was arrested and participated in a police interview. The Court noted he alternated between expressing regret over his actions and declaring that the victim ‘deserved what he got’.[79]
(v)The victim’s injuries included a left haemo- and pneumothorax with decreased air entry, lacerations of the small bowel, stomach, and pancreas requiring major surgery, dropped blood pressure with under 40 systolic, blood loss, blood in the urine, psychiatric issues, and complications of fevers and large vomiting that required a second major surgery. The victim was assessed as having sustained ‘a combination of substantial, severe, and life-threatening injuries with high risk of future impairment’.[80] A Victim Impact Statement includes references to constant pain, moving house because the Applicant knew where the victim lived, and psychological trauma.[81]
(k)On 9 December 2015, the Applicant was convicted of Recklessly cause injury, for which he was sentenced to 5 months’ imprisonment. This related to an incident on 21 March 2015 in Port Phillip Prison, where the Applicant assaulted another prisoner by ‘continually hitting him with a broom handle’ until it broke.[82] The victim received treatment at St Vincent’s Hospital for multiple fractures of his left wrist.
[77] Ibid 75-95.
[78] Ibid 87 [61].
[79] Ibid 78-9.
[80] Ibid 79.
[81] Ibid 1861-2.
[82] Ibid 1731.
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 Tribunal sees no reason in the facts of this case to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has committed numerous crimes that commenced soon after arrival in Australia 20 years ago. The totality of his crimes and other misconduct is very serious. Notwithstanding the rehabilitative and vocational courses completed, the evidence enlivens continuing concerns about the extent of his remorse, insight, and rehabilitative progress. Any tolerance extended to him because of an almost 20-year residence in Australia has been extinguished by persistent offending. His recent six-month law-abiding period in the community is relatively brief and he has considerable unmet rehabilitative needs. The Australian community would expect he should not hold a visa, although the executive Government has been obliged to release him under a BVR because of the High Court’s decision in NZYQ. Irrespective of the Tribunal’s decision in this matter, the Applicant will remain in the community.
Any positive contribution the Applicant has made through work or other community engagement is overshadowed by persistent addiction and habitual offending. He has harmed numerous victims and his conduct reflects a disdain for Australia’s law enforcement framework and the rights of others. A repeat of his violent offending could result in death or serious physical or psychological injury. His most recent conviction is his most serious and falls into a category of conduct where even a low probability of repeat is unacceptable.
The protective factors advanced by the Applicant are comparable to those of the past, which did not assist him to change his ways. Given his repeated failures to leverage rehabilitative opportunities and learn from his mistakes, the Tribunal has little confidence in his current assurances alone that things will be different ‘this time’.
There is no evidence in this proceeding from the Applicant’s family or prosocial friends. His ties to the community are long but not strong. On the best reading of the evidence the possible impact on those he may be close to does not extend beyond an emotional one.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community, substantially outweigh the primary considerations Strength, nature and duration of ties, Best interests of minor children, and the other countervailing consideration.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the written reasons for the decision of Senior Member A.A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 6 June 2024
Date of hearing: 21 and 22 May 2024 Advocate for the Applicant:
Solicitors for the Applicant:
Mr David Carolan
Refugee Legal
Advocate for the Respondent:
Solicitors for the Respondent:
Mr Jonathan Barrington
Sparke Helmore Lawyers
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