VPWH and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 3024
•14 September 2022
VPWH and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3024 (14 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5214
Re:VPWH
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:14 September 2022
Place:Sydney
The Tribunal finds that the correct and preferable decision is that the decision under review is set aside and the matter is remitted to the Respondent for further consideration with a direction that the Applicant not be refused a protection visa under subsection 501(1) of the Migration Act 1958 (Cth).
..................................[SGD]......................................
The Hon. Dennis Cowdroy AO KC, Deputy President
Catchwords
MIGRATION – refusal to grant visa on character grounds – whether the applicant passes the character test - where applicant has a sentence of imprisonment of twelve months or greater - Direction No. 90 considered - where risk of reoffending is low - where offending is very serious - domestic violence - best interests of minor children - where applicant is owed protection obligations - indefinite detention considered - where applicant has links to Australian community through family - where applicant faces indefinite detention - decision set aside and remitted.
Legislation
Migration Act 1958 (Cth)
Cases
Al- Kateb v Godwin (2004) 219 CLR 562
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
Dang v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
14 September 2022
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 16 June 2022 (“the decision under review”) to exercise the discretion under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) to refuse the applicant a Protection (Class XA) Visa.
A delegate of the Minister was satisfied that the Applicant had committed very serious crimes being repeated acts of domestic violence and that the Australian community expected the government not to allow non-citizens who have engaged in acts of family violence and committed violent crimes against women and children to enter or remain in Australia. Countervailing considerations were considered but were not regarded as sufficient to outweigh the risk of harm to the Australian community and the expectations of the Australian community
The Applicant was notified of a delegate’s decision on 22 June 2022. An application was made to the Tribunal on the same day for review of the decision.
The hearing in person before the Tribunal was held on 30 and 31 August 2022.
relevant law and policy: DIRECTION no. 90
Subsection 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. A person does not satisfy the character test if the person has a substantial criminal record, as defined by s 501(6).
Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Subsection 501(7) defines a “substantial criminal record” and in paragraph (c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the discretion under s 501(1). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-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 type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to refuse a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(e)international non-refoulement obligations;
(f)extent of impediments if removed;
(g)impact on victims; and
(h)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Facts
The Applicant, who is 38 years of age, was born in Sierra Leona. The Applicant is a citizen of Sierra Leone. The Applicant was granted a Global Special Humanitarian visa 3 April 2007. The Applicant arrived in Australia on 31 May 2007.
On 25 January 2017 the Applicant’s Global Special Humanitarian visa was mandatorily cancelled under s 501(3A) of the act. The delegate was not satisfied that the Applicant passes the character test because of his “substantial criminal record” arising from a sentence of full-time imprisonment for 15 months for the offence of stalk/intimidate intend fear physical harm (domestic) which was imposed on 3 August 2016 in the NSW Local Court with a non-parole period of 7 months. The conviction was affirmed on appeal by the NSW District Court on 15 September 2016 but a reduced non-parole period of five months was ordered.
The Applicant was released from prison and placed in immigration detention on 3 June 2017.
Review of Cancellation of Visa
On 28th February 2017 the Applicant made representations seeking revocation of the cancellation of his visa. On 18 July 2017 the Applicant sought judicial review of the mandatory visa cancellation but such proceedings were discontinued on 14 February 2018. On the same day the Assistant Minister for Home Affairs decided not to revoke the cancellation of the applicant’s visa.
On 21 March 2018 the Applicant applied for judicial review of the non-revocation decision. The application was unsuccessful.
Application for Protection Visa
On 21 December 2018 the Applicant applied for a protection visa. Such application was refused on 9 December 2019 under s 501(1) of the act. Such decision was set aside by a differently constituted Tribunal on 27 February 2020. The setting aside was based upon a decision of the Federal Court of Australia in BAL19 v Minister for Home affairs [2019] FCA 2189 in which it was held that s 501 of the Act was not available to refuse an application for a protection visa. Thereafter the remitted protection visa application was referred to the Department for reconsideration.
On 19 December 2020 a delegate of the Respondent refused the protection visa application under ss 36(1C) and 36(2C)(a)(ii) of the act. On 16 July 2021 the Tribunal set aside that decision and remitted the matter for reconsideration.
On 16 June 2022 a delegate of the Respondent refused the visa application under s 501(1) of the act.
evidence
Statements
The Tribunal has had regard to the various character references and statements before it as follows:
·Applicant’s statements dated 14 December 2018; 7 February 2020; 19 June 2020; 18 March 2021; 3 August 2022; 24 August 2022
·letter addressed to the National Character Consideration Centre dated 30 October 2017
·Summary of psychological treatment for the Applicant on the letterhead of NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors by Tshimanga Beya, General Counsellor, QMACA (qualifications unknown) reports of the following dates: 14 December 2020; 8 February 2021; 16 March 2021; 20 May 2021; 18 June 2021; 16 July 2021; 20 August 2021; 23 September 2021; 12 October 2021; 19 November 2021;
·NSW TAFE certificates: statement of attainment dated 16 September 2016; 18 June 2016;
·letter from FT, (brother of the applicant) dated 11 February 2020 and 3 March 2021;
·statutory declarations of MT (brother of the applicant) subscribed on 18 March 2021;
·statements of OT (brother of the applicant) dated 2 August 2022 and 23 August 2022;
·statement of MT (sister of the applicant) dated 2 August 2022;
·Letter of support from colleague, Ms J. B. Dated 17 March 21;
·letter from Salvos Legal dated 17 October 2019.
The Tribunal has also been provided with numerous Incident Detail Reports relating to incidents concerning the Applicant whilst he has been in detention. Such reports extend from 7 June 2017 to 3 June 2022.
Oral evidence
The Tribunal heard oral evidence from the Applicant, his sister MT and brothers FT and OT, and Mr Watson-Munro.
Medical evidence
Report of Mr Tim Watson-Munro, psychologist dated 17 February 2020.
Background
The Applicant lived as a child in a village in Sierra Leone. The Applicant states that he attended school from the age of six years old, and throughout his youth his family was supportive of the pro-democracy political group in that country. He has indicated that when he was 11 years old rebels attacked his village and his family’s house was burned down. His family fled to Guinea and he lost contact with his brother for several months.
In due course his family returned to their village and he resumed his life in the village but felt very apprehensive. In January 1999 the rebels returned and kidnapped the Applicant and he was made to live in the bush with approximately 200 to 300 other children. He states they were beaten, tortured, molested, and they were made to carry heavy things including weapons. The Applicant states he saw “horrible things being done to other people”. He states he is still badly affected as a result of this period in his life.
The Applicant states he escaped the camp when British soldiers attacked the rebels and returned to his village but found that the village had been destroyed and that many of his family had died or moved elsewhere. He learnt that the remainder of his family were in a refugee camp. He continued to live with his aunts and uncles in the village for a few months. After some months he crossed the border into Guinea accompanied by his brother and they found their parents. They then lived in a camp of about 500,000 people. In September 2004 his older brother left the refugee camp to go to Australia and thereafter he sent information and money to the Applicant and his family. In 2000 his family, including the Applicant, were granted humanitarian visas to come to Australia.
Following arrival in Australia on 30 May 2017 he, his mother, and his sister lived with his with his brother. He enrolled in TAFE and began his first year studying English. Thereafter he started a business studies TAFE course but didn’t finish because he stated he couldn’t concentrate and needed a job. He worked with a packaging smallgoods company (2008 – 2009); as a cleaner with the NSW ambulance service on a six-month contract in 2009; as a kitchen hand at a city hotel (2009 – 2010); as a passenger support worker at Sydney International Airport (2010 – 2011); and in galvanising work at a galvanising company (2011 – 2014).
The Applicant stated he has completed a number of TAFE courses since that time relating to welding, OHS and First Aid.
In October 2010 he moved into his own flat in an inner Sydney suburb and began a relationship with Ms X. The relationship developed but in 2012 it became sporadic. They were then living in Campbelltown together and X’s mother moved in. X found that she was pregnant but a fight ensued when she terminated her pregnancy without informing the Applicant.
After that the Applicant states he moved into his own lodgings and they ended their relationship but it recommenced in early 2013 but without the presence of X’s mother. In May 2013 X fell pregnant again and when she was eight months pregnant she moved into her mother’s home in Camden because she needed support. The parties were still in a relationship but were not living together. The Applicant’s son was born in February 2014.
In 2015 when the Applicant’s son was about 1 ½ years old, the Applicant and X separated. The Applicant continued to see his son every second weekend and at a shopping centre or at a grandparent’s house. The Applicant states that he got along well with X’s grandparents but one day when he was present at their home, X’s mother arrived and told him to leave. As a result there was an argument and the Applicant engaged in the offending conduct and was subsequently convicted in August 2016. He states he is remorseful. He also stated he has not seen either X nor his son since that time as he went to gaol on 4 November 2015.
The Applicant states while in prison he has undertaken various EQUIPS programs including programs for aggression, first-aid, well-being, the foundation program and the domestic abuse program.
The Applicant states that he understands why his visa was cancelled and stated he is ashamed and remorseful for his behaviour.
Applicant’s Criminal history
The Applicant was convicted of the following offences:
Applicant’s History of Convictions
Date of Offence
Offence
Date of Conviction
Sentence
26.5.2012
Destroy or damage property<= $2000
19.10.2012
Fined $500
31.10.2012
Contravene prohibition/restriction in AVO (domestic)
31.10.2012
Conviction with no other penalty
27.12.2012
Common assault (DV)
13.3.2013
s9 bond: 12 months
27.12.2012
Contravene prohibition/restriction in AVO (domestic)
s9 bond: 12 months
28.12.2012
Destroy or damage property<= $2000
s9 bond: 12 months
16.3.2014
Assault occasioning actual bodily harm in the company of others (DV)
14.8.2014 (appealed on 5.9.2014)
8 months imprisonment; 6 months non-parole period (reduced to 3 months non-parole period on appeal)
16.3.2014
Assault officer in execution of duty (DV)
6 months imprisonment (reduced to 2 months imprisonment on appeal)
16.3.2014
Destroy or damage property (DV)
1 month imprisonment
3.5.2015
Common assault H57961246
10.12.2015
6 months imprisonment
29.5.2015
Assault officer in execution of duty
6 months imprisonment
13.7.2015
Common assault (DV) H58735426
12 month imprisonment; 9 months non-parole period (reduced to 3 months non-parole period on appeal)
Stalk/intimidate intend fear physical etc harm (domestic)
6 months imprisonment (reduced to 3 months imprisonment on appeal)
Destroy or damage property<= $2000 (DV)
3 months imprisonment
Destroy or damage property<= $2000 (DV)
3 months imprisonment
Destroy or damage property<= $2000 (DV)
3 months imprisonment
4.8.2015
Fail to appear in accordance with Bail
Conviction with no other penalty
17.06.2015
Stalk/intimidate intend fear physical etc harm (domestic)
3.8.2016 (appealed on 15.9.2016)
1 year 3 months imprisonment; 7 month non parole period (reduced to 5 months non-parole period on appeal)
Sentencing observations
The Tribunal has considered sentencing observations in relation to the following convictions.
District Court NSW Criminal Jurisdiction: 5 September 2014
On this date the Applicant appeared before Judge Sides SC when he appealed in respect of an assault occasioning actual bodily harm in company committed upon his brother, for which he received a sentence of eight months (six months non-parole) commencing on 14 August 2014; damaging property for which a one month sentence was to be served concurrently; and for assaulting police by spitting on a police officer, for which he received six months also to be served concurrently.
His Honour found that the offences were premeditated but the spitting on the police officer ‘was probably spontaneous and may have been in the emotion of the moment.’
His Honour continued:
‘He does not have a clear record, He was placed on, actually I think he was fined for damaging property in October in 2012 and placed on a bond for 12 months on 13 March 2013 for damaging property, assault and contravening an AVO. That bond had only run out a couple of days before the offence.’
His Honour confirmed the sentence but reduced the non-parole period to three months from six.
Local Court Campbelltown: 10 December 2015
The Applicant was convicted of common assault, destroy/damage property (three counts) and failure to appear.
Magistrate Rabbidge noted:
‘I am told he has mental health issues. He had been in and out of Concord Hospital with psychiatric issues. He was under the attendance of Dr Islam.’
The Court heard evidence from the Applicant and from witnesses before the Magistrate found an overwhelming case. In his sentencing remarks, his Honour said:
“Today we have witnessed frankly a breathtaking performance in the witness box, with a man has shown extraordinary anger, makes the claim that his former mother-in-law held racist abuse at him, pushed him in the chest, and he responded by using a walker to damage a couple of motor vehicles, one of which contained the victims mature aged elderly mother, he needed the support from a walker in order to get out of the motor vehicle. So she in a terrified situation was cowering in the car as he indulges himself in extraordinary anger…
It further enhances a situation of a very angry man……
On 29 May we had a police officer who was assisting him frankly at the Campbelltown hospital. He [the applicant] was detained in the room and at the time intended to remove the cannula from his arm, and attempted to leave. The security officer call for assistance in a short time later for security officers attended and the accused person was restrained to the bed.
On Saturday 2 May 2015 the victim arrived home from shopping and when she entered her house she noticed the accused was in her lounge room. The accused began speaking to the victim in a degrading manner but he stayed overnight. On the following morning the accused behaved violently when told to leave and police were contacted.
The applicant was removed to hospital. Whilst the hospital staff were attempting to sedate the Applicant, he pulled away and bit a Senior Constable in the left forearm before spitting on the Senior Constable’s face.
A sentence of 12 months imprisonment, alongside other penalties, were imposed as per the chronology above.
Local Court Campbelltown: 3 August 2016
The Applicant was convicted of the offence of stalk/intimidate intend physical harm. Magistrate Degnan referred in his sentencing remarks:
The intimidation relied upon is during a police investigation, whilst the police were ringing you – well, were in contact with you over the phone, to speak to you about [a] text message sent to your estranged partner, you said to the police, “I swear to God, officer, I’ve lost everything and I’ve nothing to lose. I’m going to kill that bitch and my son. I’m going to burn the fucking house down and kill them all and kill myself.” You repeated that to the police on several occasions. They are very serious threats to make and whilst the courts acknowledges that some persons make threats in a highly emotional circumstances, the other fact that the Court cannot lose sight of is the fact that some persons carry out those threats.
…
I am mindful of the fact that you are already serving 15 months for a series of offences which included prior matters involving Ms [redacted], as well as intimidation against her, damaging property, an assault upon her as well as assaulting a police officer in the execution of his duty. As I said, there has been a number of sentences imposed and which now leave you with that 15 months to be served and then a period of parole for a further nine months at this point in time.
I have determined the type of intimidation was a threat of killing persons, which is quite serious…
District Court of New South Wales Criminal Jurisdiction
On 15 September 2016 the Applicant appeared before Judge Pickering SC in the above court to appeal the determination of the sentence imposed on 3 August 2016 for the offence of stalk or intimidate which received a 15 month sentence involving a non-parole period of seven months.
His Honour observed that the facts of the matter were “really concerning” and he repeated the threats made to kill the Applicant’s ex-partner and his 16 month old son. The threats were made by text message.
His Honour said:
“Courts must regard these threats as incredibly serious. It is not for the court to enquire about whether they are genuine, they should be actually just regarded as a genuine intent and dealt with as such.”
His Honour considered that the overall sentence of 29 months was totally appropriate for the Applicant’s conduct. However he upheld the appeal, confirming the 15 month sentence but varying the non-parole period to 5 months to commence from 4 January 2017 and to expire 3 June 2017.
Findings of Tribunal in Decision dated 16 July 2021[2020/8165]
A previous Tribunal has made findings in respect of the Applicant upon the issue as to whether they satisfied the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth). The Tribunal found that the Applicant satisfied the criterion, and that s 36(2C)(b)(ii) was not engaged by the Applicant. In coming to its decision in that matter, the Tribunal found a number of findings of fact which have been raised in the current application before the present Tribunal.
Specific Relevant Findings
The previous Tribunal made factual findings concerning the Applicants past trauma prior to coming to Australia; his deterioration in his mental health and his treatment for those issues. These findings are reproduced as follows:
95In 1995, when the Applicant and his family lived in Sierra Leone, his older brother was kidnapped (he is now back with the family). In 1999, around the age of 12, the Applicant himself was kidnapped by rebels. His family believed he was dead. He was forced into labour and he describes being starved, molested, beaten and tortured. In order to desensitise him to the horrors of war, the rebels forced him to watch all kinds of abuse of women, including rape, as well as the murder of young children and babies. He was forced to take drugs and he lived in fear that he would be killed at any moment if he did not comply. After around three years he ran away when British soldiers attacked the rebels, and he made his way to a refugee camp in Guinea where he was reunited with his family. The rebels burned down that camp and the family relocated to another refugee camp.
Deterioration of the Applicant’s mental health
96The Applicant came to Australia in 2007 at the age of 23. He does not seem to have had any trouble with the law for his first five years here. In 2010, he moved out of his family home and started living with Ms B. There he had access to alcohol and cannabis, which he had never used before. He began using those substances socially. In 2012, Ms B aborted their child and he was very upset about that. The relationship failed and he found himself homeless and unemployed. He was drinking, smoking and gambling too much. Although he sought intervention in July 2012, was diagnosed with mental health problems, and given a mental health plan, he did not continue with treatment. He said he disengaged because he was ashamed of being unemployed and homeless and the stigma associated with mental health problems. Due to his sense of shame, he did not feel that he could access family support. He said the situation is different now.
97From 2012 to 2015 his mental health problems were not adequately treated, he was abusing substances and his relationship with Ms B was tumultuous and it ultimately ended.
98The Applicant’s son, Child A was born in February 2014. The Applicant told a psychologist that this period was very challenging with many stresses associated with having a new child and the difficulty balancing this with his job at the airport. He eventually lost his job due to being late too often and requiring too many days off. He said he was told he was no longer welcome to live at Ms B’s parents’ house who disapproved of him. He was homeless and he was too ashamed to tell his parents. He reported excessive alcohol consumption between 2012 and 2015 and marijuana use. In May 2015, Ms B was granted full custody. The Applicant experienced distress at not being able to see Child A. It was between May and August 2015 that the seriousness of the Applicant’s offending escalated. He related that “It all ended when I went to jail, thank God”.
Treatment for the Applicant’s mental health
99On 4 November 2015 the Applicant entered custody and he has been incarcerated or detained ever since.
100While in gaol the Applicant was diagnosed with Post Traumatic Stress Disorder (“PTSD”), trauma, anxiety and major depressive disorder. Since then he has been medicated constantly for his mental health. According to him, it was the first time he consistently accessed effective mental health treatment.
101Between 2016 and 2017, while in gaol, the Applicant completed programs through EQUIPS including their Foundation Program and Domestic Abuse Program.
102On 3 June 2017, when he had completed his prison sentence, he was transferred to immigration detention. Since then he has engaged in regular counselling with the New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”) and he has engaged in separate counselling with a psychologist through International Health and Medical Services (“IHMS”).
The Respondent produced as part of their Supplementary G-Documents filed with the Tribunal 86 Incident Detail Reports (ID Reports) covering the period 11 June 2017 to 3 June 2022. These relate to incidents which occurred while the Applicant has been in detention. In respect of reports prior to 16 July 2021, the previous Tribunal found that only one of such incidents involved the Applicant as an aggressor. The Respondent has not pointed to any report thereafter which establishes that the Applicant was responsible for any incidents while in detention.
The previous Tribunal summarised the Applicant’s offending as follows:
The Applicant’s offending and other harmful conduct can be summarised as follows:
·He engaged in some sort of minor physical contact against Ms B in the context of an argument around Christmas 2012;
·He intervened in a fight between his cousin and brother and assaulted an attending police officer in 2014. The nature of the assault is not known but the penalty reflects a degree of seriousness;
·He bit a police officer, albeit without sufficient force to break the skin, and spat at him, while in a mentally disturbed and fearful state, feeling that force was being applied to his neck such that he could not breathe (after recently making two suicide attempts) in May 2015;
·He made threats to kill Ms B, Child A and himself while in a mentally disturbed state in June 2015;
·He struck at Ms M’s face, hitting her face and arm, smashed the windows and windscreens of two cars, and damaged Ms B’s grandmother’s mobility walker in what must have been a terrifying attack for Ms B, Ms M and Ms B’s grandmother in July 2015;
·He was involved in a physical altercation, as the aggressor, in immigration detention that left red marks on the other detainee’s neck on 25 June 2019; and
·He verbally abused kitchen staff in immigration detention because he was not given extra honey and peanut butter on 30 July 2019.
Specifically, the previous Tribunal found at [144] as follows:
‘Given all of these matters, I am not satisfied that the Applicant presents a present and serous risk to the Australian community. Accordingly, I am not satisfied that the Applicant is a danger to the Australian community.’
The Applicant’s Experience in Detention
The Applicant has been in detention for a period of five years commencing on 3 June 2017. The ID Reports record an incident in which the Applicant was assaulted by another detainee who poured boiling water over the Applicant’s head. As a consequence, the Applicant was required to be treated in Concord Hospital Burns Unit and thereafter to undergo surgery for damage to his eye.
The Tribunal on the previous occasion identified an incident in which the Applicant had been kicked in the ribs by one of the officers at the detention centre. The Applicant’s statement of 19 June 2020 also provides evidence that an investigation was opened as a result of this altercation, and that the officer had been suspended. The previous Tribunal made a finding that the Applicant had dropped to the floor, but could not identify sufficient evidence to indicate aggression and could not find fault on the part of the Applicant.
Mental Health Issues
On 9 July 2012 the Applicant attended Concord Hospital because he found he was unable to cope. He states that he was very traumatised from his experiences in Sierra Leone and in Guinea. The Applicant states he was drinking and smoking too much. On another occasion he attended the Psychiatric Emergency Care Centre at Campbelltown Hospital. Thereafter his general practitioner, Dr Islam, provided him with a mental health plan and arranged for the Applicant to see a psychologist.
On 29 May 2015 the Applicant stated he was scheduled into Campbelltown Hospital. This apparently followed a visit by the Applicant to the police station, asking about arrangements to visit his son and he became very upset and stressed. The Applicant states that he was diagnosed with Post-Traumatic Stress Disorder, trauma, anxiety, and major depression by a doctor in gaol. He was informed that these conditions resulted from his experience in Sierra Leone. The applicant stated that his attack on the police officer resulted only from the fact that the circumstances of him being restrained caused him to panic because he did not know what was happening and brought back vivid memories of his violent earlier experiences
Since that time the Applicant stated he has been medicated for his mental health and each day takes Fluoxetine (50 mg), Seroquel (200 mg) and Avanza (100 mg). The Applicant states in his letter dated 30 October 2017 addressed to the National Character Consideration Centre:
“I have not offended since I began taking this medication and my behaviour in jail was always very good.”
The Applicant stated that since July 2017 he has been attending one-on-one counselling services with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS),and has been consulting with clinical psychologists.
The Applicant is concerned that if he were returned to Sierra Leone he would not have access to appropriate health treatment and medication and could not pursue his rehabilitation. He has provided some information concerning the facilities for mental health services in Sierra Leone. He states that it is unsafe to return to that country. It has no welfare system and he is fearful that he would be unable to get employment and will be discriminated against since he has lived out of the country. He fears that he will be left to die from starvation or the absence of appropriate medical treatment.
The Applicant states that he has done as much as he could to rehabilitate himself whilst in the Villawood Immigration Detention Centre (VID). He stated if he is able to stay in Australia he will live with his brother. He states that almost all of his family reside in Australia and that his mother is unwell and relied upon him before he went to jail. He states that his detention in VID has placed pressure on the family, and that they needed him physically, financially and emotionally. He states that he has spent the majority of his adult life in Australia and considers Australia to be his home. He states that he is rehabilitating and receiving treatment he needed to recover from his mental health issues.
Psychologist’s evidence
Mr Watson-Munro assessed the Applicant at interviews on 4 and 5 February 2020. In his assessment, having considered the history as described by the Applicant, Mr Watson-Munro considered that the Applicant continued to suffer significant depression and features of an anxiety order which he states are integral to the more generic diagnosis of Post-Traumatic Stress Disorder. In his opinion he states that during the Applicant’s period in VID since June 2017 the Applicant has made:
.. consistent efforts in terms of attempting to deal with his broad range of symptoms, which have been previously diagnosed Include Post-Traumatic Stress Disorder, a Major Depressive Disorder and integral to this, features of an Anxiety Disorder. I concur with these diagnoses on the basis of Mr [applicant’s] background history. As an overarching consideration, he was also suffering a substance use disorder That during the period of his offending. This related to both alcohol and cannabis. His drug and alcohol use in my opinion was an ineffective and inappropriate means of self-medication against his symptoms.
Mr Watson-Munro stated that the Applicant required continuing treatment and that it was also imperative that he maintained his regimen of medication which was first prescribed in about 2011. He also noted that the Applicant had been intermittently non-compliant.
Mr Watson-Munro gave evidence orally in which he stated that he considered that the Applicant’s risk of offending was trending to low, approaching low. This is consistent with his previous oral evidence before the previous Tribunal. He also noted that he now considered it to be closer to low than it had been before the previous Tribunal.
The previous Tribunal stated in [127] and [128] as follows:
I asked Mr Watson-Munro to comment on the observation made by the District Court Judge that domestic violence offenders have the worst risk of reoffending. He said that:
“The issue, I think, is that in the absence of intervention a lot of men, in particular, just don’t get the message. But once there is an intervention, in this case a fairly dramatic intervention, they have time to look at it. Time in custody has been a circuit-break for him, but certainly the general proposition that, you know, men in particular in the community, you know, the courts issue apprehended violence orders, intervention orders, and then they are breached. That is true, but often those men have not had access to treatment and they don’t have the requisite insight to change their ways. Incarceration, for this man, has certainly been a strong motivator to look at himself.”
In terms of the Applicant’s overall risk of re-offending, Mr Watson-Munro said:
“Well, I think it’s trending towards low. Certainly, his prior history is troubling, a lot of that relates to domestic violence, poor impulse control, and so on. But it’s a long time ago now, and beyond the issues we’ve discussed, he’s clearly matured and he’s now in his thirties, he’s had a long time to reflect upon his behaviour. He’s been receiving treatment, and he understands the consequences that will accrue, should he be given an opportunity to remain in Australia and he breaks the law again. But certainly, he requires ongoing, what I would describe as supervision, in the community by way of treatment. So, I would hope if he’s permitted to remain here, he wouldn’t just be left at the gates and left to fend for himself, I would hope that continuing treatment can occur in the community.”
In oral evidence before the present Tribunal, Mr Watson-Munro considered that the Applicant has now had the benefit of very extensive treatment by way of both counselling and medication. It was put to him that the Applicant had provided evidence before this Tribunal which demonstrated a clear understanding of the unacceptable nature of the Applicant’s past conduct. Mr Watson-Munro noted that the Applicant had shown an ongoing desire for treatment and considered that such an insight reflected the benefit of the treatment the Applicant had received thus far. He did not believe that after such extensive treatment over a five year period that the Applicant would relapse. He also stated that continued detention would be especially harmful and would lead to a deterioration in the Applicant’s mental state. He believed it would lead to feelings of depression, anxiety, and a sense of helplessness or futility.
ID Records
The records provided to the Tribunal record incidents involving the Applicant which has resulted in the applicant being restrained on 86 occasions between 11th of June 2017 and third of June 2022. The Applicant has been restrained by mechanical means on occasions. The incidents involved physical altercations and other offences.
Changed circumstances
The Tribunal heard oral evidence from the Applicant. The Tribunal was impressed by the frankness and candour of the Applicant. It is plain that from a tempestuous upbringing, the Applicant has, but for his criminal offending, been a worthwhile citizen whilst he has been in Australia. For the first five years following his arrival in Australia in 2007 he had no breaches of the law. He studied to learn the English language at TAFE and undertook worthwhile employment. The first issues which caused him to come to notice occurred from approximately 2012 when the relationship with Ms X commenced to break down. As he could no longer reside with Ms X, the Applicant became homeless. The Applicant clearly recognised that he was in need of psychiatric treatment as the records show that he attended Campbelltown Hospital on 9 July 2012. He also attended Concord Hospital in May 2013 for psychiatric treatment.
Family support
The Tribunal heard oral evidence from the Applicant’s two brothers and sister. The Tribunal was impressed by the achievements of such witnesses. The Applicant’s youngest brother, FT has established himself in Queensland and has become an Australian citizen. He learned English on arrival at TAFE before establishing his own business with a trade qualification. He is married with children and his wife works. FT speaks with the Applicant every week and on occasions, every day. FT states that his children speak with the Applicant by video call. FT’s son met the Applicant a few times in Villawood and they enjoyed playing together. FT and the Applicant are particularly close, since the Applicant looked after him as a child.
FT has a three bedroom home which he shares with his wife and two children. He states that he would have the Applicant live in the home with him and find employment in Queensland. He states that their house is approximately 45 minutes from Brisbane airport and that because the Applicant has previously worked in the airport industry, he believes he could find employment at such airport.
FT stated that their mother is not in good health, having suffered a stroke, has high blood pressure, and that she has diabetes. The family try not to discuss the Applicant’s situation, because such discussion causes her to become distressed. She understands that the Applicant is in Villawood Detention Centre, but does not understand the meaning of detention. She is frequently asking about the Applicant but is very forgetful.
Another brother, OT, who resides in Sydney has also learned English and is in stable employment having obtained a trade qualification. OT stated that he is very close to the Applicant and that he speaks to the Applicant on the telephone every day. He has offered to the Applicant placed in his home if the applicant is released into the community.
The Applicant’s sister, MT, lives in Victoria with her three children. She states that she talks to the Applicant daily and that he is very close to her children he talked to them on video calls. She is also an Australian citizen, and the Tribunal was impressed by her testimony by video link.
The Tribunal is satisfied that the family unit would be most supportive of the Applicant and would assist him in re-establishing himself in the community.
Observations
The Applicant has already been found not to be a danger to the community. The Applicant’s criminal offending is explicable on the basis of his PTSD, which is considered by the psychologist, Mr Watson-Munro, to be virtually resolved with the benefit of the Applicant’s extensive treatment. The Applicant has also shown that even prior to his offending he was aware of his need for psychiatric assistance as evidenced by his voluntary attendance at Concord Hospital in 2012 and Campbelltown Hospital in 2015. Such awareness demonstrates to the Tribunal that the Applicant possesses significant insight into his condition and that he is making genuine attempts to address it. The Tribunal has considered that the Applicant can be a worthwhile member of the community.
The Tribunal is reinforced in its conclusion by the fact that the Applicant lost his freedom on 4 November 2015. Following the cessation of his prison sentence, he was taken into detention on 3 June 2017. Other than the finding of one incident which occurred during detention, there has been no episode of violence for which he has been held responsible.
Issues for determination
The Applicant does not dispute that he does not pass the “character test” defined by s 501(6) of the Act. Accordingly, the only issue before the Tribunal is whether the Tribunal should exercise its discretion to refuse to grant the visa.
The Minister has made a written direction pursuant to s 499 of the act to guide decision-makers in the exercise of power under s 501(1). Such direction is known as Direction No. 90 which was made on 8 March 2021 and came into operation on 15 April 2021. The direction, by virtue of Cl 5.1 thereof, is stated to guide decision-makers in performing functions exercising powers, inter alia, under s 501 of the Act.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, 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. Decision-makers should also 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community should he reoffend.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted included violent crimes committed against a woman in a domestic violence context. There is no doubt that such conduct is serious, and the Applicant has accepted as much.
The Tribunal notes significant matters relevant to the consideration of the protection of the Australian community:
(i)the nature of the offending involves the threat of violence against Australian citizens, including elderly citizens and women;
(j)the Applicant has reoffended, engaging again in potentially violent offences;
(k)the Applicant appears to demonstrate insight into his offending, as opined by the psychologist Mr Watson-Munro.
As outlined above the Applicant was homeless and struggling with his mental health, and it was in this context that his offending took place. The task of the Tribunal in determining whether to exercise the discretion to refuse the visa is to determine and weigh up all the circumstances both for and against. As referred to by Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91], no legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved. Similarly, Buchanan J in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, a visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances (see [202] and [207]).
Applying such test, the Tribunal accepts that the applicant’s offending arose out of a highly charged situation where he was desirous of having consistent access to his son, but was denied access. Whether such denial was based upon the fact that the Applicant was suspected of being under the influence of liquor or drugs, or whether it was due to the fact that Ms X was seeking money from the Applicant as he alleged, is not established. Further, in respect of a charge of failing to appear in the local court on 4 August 2015, the Applicant stated that he was unaware of the hearing date because he was homeless.
The Tribunal is satisfied that despite the criminal convictions, the Tribunal understands that the Applicant was unable to cope and became aggressive. The psychiatric evidence explains such aggression arising from his violent childhood. His homelessness at that time and financial impecuniosity exacerbated an already tense and distressing situation.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. The Tribunal considers that the Applicant poses a risk to the Australian community should he reoffend. Such risk involves harm to both individual citizens and community at large, and the Tribunal considers that that there is the real, although minor, likelihood of such conduct recurring.
The Applicant informed the Tribunal, and the Tribunal accepts, that he now has a clear understanding that such conduct is unacceptable in Australia. The Tribunal accepts that the Applicant has expressed genuine remorse. The Applicant has now had extensive treatment as already referred to, and the Tribunal considers that a repeat of the volatile experiences which he had with Ms X and with her mother are most unlikely to be repeated.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs in favour of exercising the discretion to refuse the Applicant’s visa.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
The criminal conduct of the Applicant has been directed, on each of the occasions, against females with whom he has held a relationship. Whether a person is a family member as referred to in Direction 90 is to be determined by the Tribunal and the term “family member” is to be determined by reference to the text, context and purpose of the expression “member of a person’s family”. It has been held that the expression should not be narrowly construed: see Dang v Minister for Immigration Citizenship Migrant Services andMulticultural Affairs [2022] FCAFC 115 at [124].
In respect of the 2015 offences, the Applicant and the victim had been in an intimate relationship for several years. The Tribunal regards this circumstance as sufficient to constitute “family violence” for the purposes of Direction 90. The Applicant also accepts that he has been convicted of four instances of family violence offending.
In considering the amount of rehabilitation achieved since the person’s last known act of family violence as required by paragraph 8.2(3) of the Direction, the Tribunal notes that the Applicant has provided evidence of his rehabilitation. In addition to more general courses, the Applicant has completed an EQUIPS Domestic Abuse Program which is a rehabilitation program targeted at rehabilitation after offences involving family violence. The Applicant has also engaged in extensive amounts of therapy and counselling.
Finding on Primary Consideration B
The Tribunal finds that this consideration, weighs in favour of exercising the discretion to refuse the Applicant a visa.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has a child who is now approximately eight years of age. The Applicant states that he has not been able to see his son since the incident involving the assault on the child’s mother in July 2015. The Applicant has had no contact with his son thereafter and has expressed that he misses him greatly. He is anxious to re-establish a relationship with him and to be involved in the development of his son. The material establishes that the Applicant genuinely wishes to re-establish a relationship with his son, however the Applicant realises that he may not be in a position to do so until he has re-established himself in the community.
The Applicant also has several nieces and nephews. The evidence relating to them is vague, however it appears that at least three of his nieces or nephews speak with the Applicant often via telephone and video calls. The Applicant provides them with simple tasks to do and asks them to report back to him, and the nieces and nephews enjoy such family contact.
Finding on Primary Consideration C
The Tribunal considers that the best interests of the Applicant’s child, and of his nieces and nephews, weighs against exercising the discretion to refuse the Applicant a visa.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
While this consideration necessarily weighs against the Applicant, there are several factors to consider in determining the weight to be given to this consideration.
The Applicant has been prescribed medication since 2011, and despite past non-compliance, has been relatively stable since readily complying with the medication prescription since his incarceration. While the Applicant has been engaged in multiple incidents in VID, their context and the extent to which some incidents can be attributed to fault on the Applicant’s part does not suggest that he has been an instigator.
The Tribunal accepts that the Australian community’s expectations would weigh in favour of exercising the discretion to refuse the Applicant a protection visa.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
The Respondent accepts that the Applicant is a person in respect of whom Australia owes non-refoulement obligations in view of the fact that the applicant satisfied the requirements of ss 36(2)(a) and 35(2)(aa) of the Act. Accordingly s 197C(3) of the act does not authorise or require the applicant’s removal to Sierra Leone (unless one of the exceptions identified in s 197CC(3)(c) applies). The direct legal consequence is that the Applicant will be held in detention for an indeterminable period of time.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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:
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 Applicant is recognised as being a person to whom non-refoulement obligations apply so that there is realistically a very low chance that the Applicant will be returned to Sierra Leone.
The Tribunal finds that this consideration weighs minimally in the Applicant’s favour.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 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.
The Tribunal has been presented with evidence that one of the victims of the Applicant’s violent offending, his brother, would be negatively affected by a decision adverse to the Applicant. The victim’s statement presented to the Tribunal indicates that he would face distress and emotional harm.
The Tribunal otherwise has no evidence of any possible impacts on any other victims of the Applicant’s offending. As a result, this consideration weighs slightly against exercising the discretion to refuse the Applicant a protection visa.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(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 non citizen 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:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) 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 has resided in Australia since 2007, and has accordingly resided in Australia for 14 years. In that time the Applicant has previously been employed, as referred to above, in a number of occupations including working with a packaging smallgoods company (2008 – 2009), cleaner with the NSW Ambulance Service; kitchen hand at a city hotel, passenger support worker at Sydney International Airport; and galvanising work. However, it should be noted that the Direction only provides for the duration of residence to be considered in the case of cancellations or revocation of mandatory cancellations. As a result, this aspect of this other consideration is not relevant to the present review. Nevertheless it demonstrates that the applicant has shown that he is prepared to work.
The Applicant’s mother, three brothers, two sisters, stepbrother, stepsister and stepmother are citizens of Australia. The Applicant’s mother and brother OT reside near Sydney, his sister MT resides in Melbourne, and one of his brothers, FT, resides in Queensland. Each of these family members are either Australian Citizens or have an indefinite right to remain in Australia.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh against the exercise of the discretion to refuse the Applicant a visa.
Impact on Australian business interests
This consideration is not relevant in this matter.
Indefinite Detention
As the Applicant cannot be refouled, the applicant faces indefinite detention which is required under the act: see Al- Kateb v Godwin (2004) 219 CLR 562 at [238]. The Tribunal acknowledges that indefinite detention, as a consequence of a decision adverse to the Applicant, would be severely detrimental to the mental health of the Applicant. The consequence of such a decision have been considered by the Tribunal, and weighed against the exercise of the discretion to refuse the Applicant a visa.
Conclusion
The Tribunal finds that primary considerations A, B and D weigh in favour of exercising the discretion to refuse the Applicant a protection visa, and that consideration C weighs against. Yet in weighing the competing other considerations, the Tribunal considers that the decision under review should be set aside. The applicant has demonstrated that his offending has resulted from his mental ill-health; and that his condition has now improved after extensive treatment; and that according to the expert evidence, the risk of the applicant reoffending is low. The applicant has strong support from family members. The Tribunal had the benefit of seeing such family members and assessing their calibre. The Tribunal is satisfied that they will ensure that the applicant is supported and will be able to guide him in the future to lead a worthwhile life in Australia.
The Tribunal also weighs up the alternative which would result in the Applicant being placed in indefinite detention. In the Tribunal’s consideration, such a result would be unwarranted.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review is set aside and the matter is remitted to the Respondent for further consideration with a direction that the Applicant not be refused a protection visa under subsection 501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 132 (one hundred and thirty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
................................[SGD]........................................
Associate
Dated: 14 September 2022
Date(s) of hearing: 30 & 31 August 2022 Solicitors for the Applicant: Ms K Bones, NSW Legal Aid Counsel for the Respondent: Mr T Reilly Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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Appeal
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