VPWH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

VPWH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2362 (16 July 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8165
Re:VPWH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R Bellamy
Date:16 July 2021
Place:Brisbane

The Tribunal sets aside the reviewable decision dated 9 December 2020 and remits the matter to the Respondent for reconsideration in accordance with the following directions:
·the Applicant satisfies the criterion in section 36(1C)(b) of the Migration Act 1958 (Cth) (‘the Act’); and
·section 36(2C)(b)(ii) of the Act is not engaged by the Applicant.

........................[SGD]................................................
Member R Bellamy
Catchwords
MIGRATION – refusal to grant a Protection visa – whether Applicant meets the criterion for a Protection visa in section 36(1C)(b) of the Migration Act 1958 – whether Applicant has been convicted by a final judgment of a particularly serious crime – whether the Applicant is a danger to the Australian community – decision under review set aside
Legislation
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
Crimes Act 1900 (NSW)
Mental Health Act 2007 (NSW).
Migration Act 1958 (Cth)
Cases
DOB18 v Minister for Home Affairs [2019] FCAFC 63
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
REASONS FOR DECISION
Member R Bellamy
16 July 2021
BACKGROUND

The Applicant is a 37 year old citizen of Sierra Leone. He arrived in Australia in 31 May 2007 as a holder of a Global Special Humanitarian (Class XB Subclass 202) visa (‘visa’).[1]
[1] Exhibit T1, Section 37 T Documents, T2, page 11.
The Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on 25 January 2017 on the basis that he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and he was serving a full-time term of imprisonment.[2] His request to have that mandatory cancellation revoked was unsuccessful.
[2] Exhibit T1, Section 37 T Documents, T24, pages 508 to 509.
In December 2018 the Applicant applied for a Protection visa (Class XA Subclass 866).[3] On 9 December 2019 the Minister’s delegate refused the Applicant’s application for the Protection visa under section 501(1) of the Act. The Applicant applied to the Tribunal for review of that decision and on 27 February 2020 the decision was set aside and remitted to the Department for reconsideration.[4]
[3] Exhibit T1, Section 37 T documents, T3, page 77.
[4] Exhibit T1, Section 37 T Documents, T15, page 418.
On 9 December 2020 the Minister’s delegate refused the Applicant’s application for the Protection visa pursuant to section 65 of the Migration Act 1958 (Cth) (the ‘Act’).[5] The Minister’s delegate found that the Applicant met the refugee and complementary protection criteria in sections 36(2)(a) and 36(2)(aa) of the Act, but he “did not meet the criterion contained in s36(1C) and s36(2C)(b)” of the Act as he had been convicted of a particularly serious crime and was a danger to the Australian community.
[5] Exhibit T1, Section 37 T Documents, T2, pages 11 to 76.
The Applicant applied to the Tribunal for review of that decision on 9 December 2020.[6] The Tribunal has jurisdiction under section 500(1)(c) of the Act to review the decision.
[6] Exhibit T1, Section 37 T Documents, T1, pages 1 to 7.
This matter was heard on 29 and 30 April 2021. The Applicant gave evidence via videoconference. The Tribunal also heard evidence from Mr Tim Watson-Munro, Consulting Psychologist by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 65 of the Act relevantly provides that, after considering a valid application for a visa, if the Minister is satisfied that:
·criteria for the grant of the visa have been satisfied (including any health criteria);
·the grant of the visa is not prevented by other sections of the Act; and
·any visa application charge payable has been paid.
the Minister is to grant the visa. If not so satisfied, the Minister is to refuse to grant the visa.
Subsection 36(1A) of the Act provides that:
An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
Subsection 36(2) of the Act relevantly provides:
A criterion for a protection visa is that the applicant for the visa is:
a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
Paragraph 36(1C)(b) of the Act provides:
“A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
…
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.”
Section 5M of the Act provides that “a particularly serious crime” for the purposes of
s. 36(1C)(b) includes a crime that consists of:
·“a serious Australian offence”; or
·“a serious foreign offence”.
Paragraph 36(2C)(b) of the Act provides:
“A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
…
(b) the Minister considers, on reasonable grounds, that:
…
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant has been convicted by a final judgment of a particularly serious crime; and if so,
(b)whether the Applicant is a danger to the Australian community.
Section 5 of the Act provides that “serious Australian offence”:
means an offence against a law in force in Australia, where:
(a)the offence:
(i)involves violence against a person; or
(ii)is a serious drug offence; or
(iii)involves serious damage to property; or
(iv)is an offence against section 197A or 197B (offences relating to immigration detention); and
(b)the offence is punishable by:
(i)imprisonment for life; or
(ii)imprisonment for a fixed term of not less than 3 years; or
(iii)imprisonment for a maximum term of not less than 3 years.
(Underlining added)
The convictions by way of final judgment in the Applicant’s criminal history include a conviction for “Assault officer in execution of duty” on 14 August 2014 in the Liverpool Local Court in New South Wales. Neither the criminal history nor the other materials before me indicate which offence provision was applied, however s. 60(1) of the Crimes Act 1900 (NSW) provides that:
A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer's duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.
(Underlining added)
It seems very likely that the Applicant would have been convicted of contravening subsection 60(1). In any event, the Applicant does not dispute that he has committed a “serious Australian offence”.[7] Accordingly, I am satisfied that the Applicant was convicted by a final judgment of a “particularly serious crime”.
[7] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) at [59].
Therefore, the only remaining issue is whether the Applicant is a danger to the Australian community.
MEANING OF DANGER TO THE AUSTRALIAN COMMUNITY
Subsection 36(1C) of the Act was enacted to codify the effect of Article 33(2) of the United Nations Convention Relating to the Status of Refugees, adopted in 1951, as amended by the 1967 Protocol Relating to the Status of Refugees (‘Refugees Convention’) with the effect that a Protection visa applicant would be ineligible for the grant of a Protection visa if they were a refugee who would have otherwise been excluded from the non-refoulement principle by Article 33(2) of the Refugees Convention.
Article 33(1) of the Refugees Convention provides that:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Article 33(2) of the Refugees Convention provides that:
The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
In WKCG and Minister for Immigration and Citizenship [2009] AATA 512 (“WKCG”), Deputy President Tamberlin, formerly a Federal Court Judge, said the following at [25] to [31] regarding the exclusionary provision in Article 33(2) of the Refugees Convention now mirrored in subsection 36(1C)(b) of the Act:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase the language of Art 33(2) of the Refugee Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
…
The risk of re-offending and recidivism and the likelihood of relapsing into crime is a primary consideration. The criminal record must be looked at as a whole and prospects of rehabilitation assessed. The assessment to be made goes to the future conduct of the person and this involves a consideration of character and the possibility or probability of any threat, which could be posed to a member or members of the Australian community.
The person’s previous general conduct and total criminal history are highly relevant to assessing the risk of recidivism. In Re Salazar Arbelaez v Minister for Immigration and Ethnic Affairs (1977) 1 ALD 98, Brennan J said at 100:...
Rehabilitation is never certain. One cannot predict of an offender that he will not fall again whatever the circumstances. The duty of the Tribunal is to apprehend what is the acceptable level of risk and to assess whether a particular Applicant in the particular circumstances of his case is at an unacceptable level of risk.
...
…
In assessing whether a danger exists, it will be sufficient if there is a real or significant risk or possibility of harm to one or members of the Australian community. It is not necessary to establish that there is a probability of a real and immediate danger of present harm. The provision is designed to protect the community from both immediate harm and harm in the reasonably foreseeable future…as Brennan J, pointed out (Salazar at 100) it involves an assessment of the applicant’s level of risk. It is too high a threshold to require that the possibility of harm must be established at the higher level of probability. In my view, the expression “danger” involves a lesser degree of satisfaction than that required by the expression “probable.”
In DOB18 v Minister for Home Affairs [2019] FCAFC 63 (“DOB18”) Logan J, referring to Deputy President Tamberlin’s decision in WKCG, made the following observations at [83]:
In the context in which s 36(1C) of the Act and Art 33(2) of the Refugee Convention are found, it strikes me as inherently unlikely that it was intended that a person in respect of whom it is accepted a Protection obligation is, prima facie, owed, because he is a refugee, might be returned to face persecution, perhaps death, on the basis of nothing more than a “risk”, perhaps small. In my view, read in context, “danger” in s 36(1C) means present and serious risk. To the extent that what is stated in WKCG might be thought to suggest otherwise, I respectfully disagree with the observations made in that case about “danger”. In my view, it carries a narrower and more restrictive meaning that just “risk”.
In KDSP v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 at [54] Bromberg J said, in obiter:
“Section 36(1C) will not be engaged by any risk to Australia whatsoever. It requires a “danger” to Australia – a term suggestive of a high level of risk. In the view reached by Logan J in DOB18 v Minister for Home Affairs [2019] FCAFC 63; (2019) 269 FCR 636, the word “danger” in s 36(1C) means “present and serious risk” (see at [83]).”
His Honour appeared to equate “present and serious risk” with something “suggestive of a high level of risk”.
The question whether the Applicant is a danger to the community is to be answered taking into account only matters that are relevant to that question and is not to be balanced against other matters such as the consequences to the Applicant of returning him to Sierra Leone.[8]
[8] SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40 and DOB18 per Logan J at [51] and [52].
BACKGROUND AND CRIMINAL OFFENDING
In his written materials the Applicant denied some of the offences of which he was convicted and he denied some aspects of reports of incidents in detention. In the hearing, his evidence about those matters was tested and I found the explanations and the details he gave to be coherent and plausible. His occasional failure to give responsive answers appeared to arise from his poor English rather than any attempt to be evasive or deceitful. His demeanour throughout the hearing added to the overall credibility of his evidence. I am have concluded that his conduct in the community was not as serious as his criminal record indicates and that he has, for the most part, been of good behaviour during his five years in prison and immigration detention. I do not make findings of fact that are inconsistent with contemporaneous police records or findings by a criminal court lightly. In this case there were strong reasons to do so in relation to some of incidents and I will set those reasons out in my analysis of the evidence. Further, where there are no details from the police or the courts to inform me about the facts underlying a particular conviction, I am more inclined to accept the Applicant’s evidence about that.
Criminal Conduct
Early offending in relation to Ms B in 2012 to 2014
The Applicant lived in his family home until around October 2010 when he met a woman, “Ms B”, and they moved in together. He started drinking and smoking marijuana, in a social capacity, while living with Ms B.[9]
[9] Transcript, page 9, line 45 to page 10, line 18.
In 2012, Ms B found out that she was pregnant and she terminated the pregnancy without first consulting the Applicant. He was very upset. The Applicant moved out and they ended the relationship for a period.
On 9 July 2012 the Applicant attended Campbelltown hospital to seek help at the psychiatric emergency care centre. He had broken up with Ms B, was homeless and was drinking and smoking heavily as well as gambling. The clinical notes record that the Applicant was having problems with living arrangements, his relationship, and his previous exposure to violence in his homeland. He reported that he felt like he was going crazy, hearing voices, having hallucinations and felt he had no control over his life. He reported ongoing suicidal ideation, and he denied thoughts of aggression towards others.[10] Shortly afterward, he was placed in a mental health plan by his General Practitioner (‘GP’)[11] and he saw a psychologist a few times.[12] Ms B encouraged the Applicant to deal with his mental health issues, and it was her who had arranged for him to see the GP. She also arranged relationship counselling so they could get back together.[13]
[10] Exhibit T1, Section 37 T Documents, T3, page 128.
[11] Exhibit T1, Section 37 T Documents, T12; Exhibit A1, Applicant's SFIC.
[12] Exhibit T1, Section 37 T Documents, T12.
[13] Transcript, page 10, lines 28 to 44.
On 19 October 2012 the Applicant was convicted of destroy or damaged property. There is not any documentary evidence before me of how this conviction came about.
On 31 October 2012, the Applicant was convicted of contravening prohibition/restriction in AVO (domestic). In relation to this conviction, the Applicant said the Apprehended Violence Order (“AVO”) had been put in place because neighbours heard him and Ms B arguing but he denied any violence. He said he had breached the AVO when Ms B had asked him to come to her home and retrieve some of his belongings, he did so and he was arrested. He said when he went to court for that:
“the judge bring us back together, me and [Ms B]. And give us advice. And we went back home, we started – we continued back our relationship, me and her.”[14]
[14] Transcript, page 11, lines 35 to 48
The Applicant described his relationship with Ms B as being on and off during 2012 and 2013.[15] They started living together again in 2013.
[15] Transcript, page 12, lines 22 to 25.
On 13 March 2013, the Applicant was convicted of destroy or damaged property, common assault, and contravening prohibition/restriction in AVO (domestic). He was sentenced to a 12 month good behaviour bond. While it is not entirely clear, the Applicant seemed to think that these charges arose from a dispute between him and Ms B about money followed by him accidentally knocking over and breaking a Christmas tree.[16]
[16] Transcript, page 12, lines 22 to 34.
I asked the Applicant why Ms B called the police if he merely knocked over a Christmas tree by accident and he said she had a short temper and was always calling the police for unnecessary, minor things.[17] In relation to the assault, he said that in December 2012, just before New Year, Ms B was upset with him because he started to drink alcohol without her. She screamed and shouted at him, and hit him, and he yelled back. He said there was no physical altercation, “nothing like that”.[18] There is no evidence before me of how the Applicant allegedly assaulted Ms B and how he came to be convicted of it. As he was convicted of assault, I am satisfied that there was some kind of physical contact however the relatively light sentence suggests it was minor.
[17] Transcript, page 36, lines 16 to 22.
[18] Transcript, page 13, line 38 to page 14, line 24.
Assault police etc in 2014
On 14 August 2014 the Applicant was convicted of:
·destroy or damage property, and sentenced to imprisonment for one month;
·assault occasioning actual bodily harm in company, and sentenced to imprisonment for eight months with a non-parole period of six months (which was reduced on appeal); and
·assault officer in execution of duty, and sentenced to imprisonment for six months.
I do not have the alleged facts of this offending before me. The Applicant said there was a fight between his cousin and one of his brothers and he intervened. His brother thought the Applicant was supporting his cousin, he called the police and told the police that his cousin had “jumped” him.[19] In the same incident, the Applicant assaulted a police officer.[20] He said after the incident everything was alright and they were back together as a family without any issues.[21] The Applicant did not say how or why he had assaulted the police officer, although the penalty imposed suggests that the court considered the assault to be reasonably serious..
[19] Transcript, page 12, lines 35 to 48; page 13, lines 23 to 30.
[20] Transcript, page 13, lines 30 to 32.
[21] Transcript, page 13, lines 7 to 14.

Ms B gave birth to the Applicant’s son, “Child A”, in February 2014. Just before that, she moved in with her mother and the Applicant moved in with his brother.[22] The Applicant visited Ms B often and, according to him he would visit for the weekend and do jobs around the house.[23] His relationship with Ms B ended permanently at some time in 2015.
[22] Transcript, page 14, lines 25 to 43.
[23] Transcript, page 15, lines 15 to 45.
Conviction in relation to Ms K
On 3 May 2015 the Applicant was charged with common assault against a person with whom he was in a casual relationship, “Ms K”.[24] He was subsequently convicted in his absence.
[24] Exhibit A1, Applicant's SFIC.
According to police records[25] on the morning of 3 May 2015, the Applicant, who had stayed overnight with Ms K, spoke to her in a disrespectful manner and she asked him to leave but he refused. She then started collecting his belongings and removed them from the unit, placing them outside. The Applicant immediately began yelling at her “Bring my box back in, bring my box back in!”. Using both his fists, he punched her in her back three or four times before sweeping his foot under her legs causing her to fall to the ground. He then kicked her while she was on the ground. Ms K ran to a neighbour’s unit and contacted the police. While she was there the Applicant returned all his property to inside the unit and left. The police later arrived and did not see any injuries on Ms K.
[25] Exhibit R2, Respondent’s Tender Bundle page 20.
According to the Applicant, he met Ms K, who had mental issues, at a homeless shelter, she offered him a place to stay, and when he was not with Ms B anymore they started a sexual relationship and became friends.[26] The day before the incident, Ms K had smashed the windows in the unit and the Applicant was afraid for his life. He wanted to go and live with his brother in Canberra but Ms K did not let him take his bags and did not let him leave. After he went outside, she threw his bags outside and there was “stuff everywhere”. She left the house to go to the neighbour’s house. As it was raining, he took his belongings back inside the unit and, when the rain stopped, he left with his bags.[27]
[26] Transcript, page 16, lines 4 to 18.
[27] Transcript, page 18, line 36 to page 19, line 46; page 37, lines 30 to 35; page 38, lines 30 to 35.
The Applicant said after he was charged, Ms K was:
“always at the police station telling them that, you know, it didn’t happen. I didn’t bash her, I didn’t touch her, you know. She tried to drop the charges. They couldn’t. So they find me guilty. I did not appear. I was guilty in my absence, you know. In my absence. But she tried to drop the charges. She come to visit me in gaol. She be supportive. She done all this – she even come to the appeal. She came to my appeal. She come visit me in gaol. There is nothing – there’s no relationship negatively (indistinct). She has always been supportive to me. All the time. Yes, so this is what happened between me and [Ms K]. There is no physical violence. ”[28]
[28] Transcript, page 19, lines 5 to 15.
The Applicant’s application to have the matter re-opened was unsuccessful because the learned Judge did not consider that the reason he put forward for failing to appear to answer the charge justified re-opening the conviction.[29]
[29] Exhibit T1 Section 37 T documents T14; T24, pages 518 to 519.
Normally the Tribunal should be hesitant to make findings of fact that are inconsistent with a conviction. Strong reasons would be required.[30] However, an ex-parte conviction does not carry the same weight as a conviction that follows a plea of guilty or a trial. It reflects allegations that have neither been proven nor admitted. In this case the allegations are the allegations of Ms K, which were adopted by the police. The only objective evidence in the police report is the observation by the police that Ms K did not have any visible injuries which, to my mind, creates some doubt about whether the applicant did punch her, kick her and make her fall to the floor. Ms K was not a witness in these proceedings so her evidence could not be tested whereas the Applicant’s evidence was tested. In these circumstances, I am not satisfied that the Applicant assaulted Ms K.
[30] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
Assault police in May 2015
According to police records,[31] on the morning of 29 May 2015 the Applicant attended the Campbelltown police station. He was extremely upset about not being able to see his son. He reported that he had been having custody issues with his ex-partner and as a result was suffering depression and anxiety. He said he been poisoning himself the last several days in an attempt to kill himself and that he had jumped off a two story building the day before in a separate attempt to kill himself. The police saw an injury on his head.
[31] Exhibit R2, Respondent’s Tender Bundle, page 17 and 18.
The police advised him that he was going to the Campbelltown Hospital for an assessment, however he declined. The police escorted him to the Campbelltown Hospital under the Mental Health Act 2007 (NSW). Once there, he tried to escape custody several times, and he tried to remove a cannula from his arm. At one point there were several security officers and a police officer restraining him while a nurse came and tried to administer a sedative. The police officer was pushing down on the Applicant’s right shoulder and chest. The Applicant bit the police officer’s left forearm and spat in his face. The bite did not break the skin. The sedative was administered rendering the Applicant unconscious.
Clinical notes from the Campbelltown Hospital indicate that the Applicant was considered to be “a mentally disordered person” and they contain a notation “homelessness, drug use + domestic violence. Recently released from parole”. The notes also state that the Applicant was highly agitated and aggressive requiring repeated sedation, and “high risk of aggression + harm to others. A risk of harm to self. Requires admission for observation + treatment”.[32]
[32] Exhibit T1 Section 37 T documents, T3, pages 136 to 137.
At the time of this incident, the relationship between the Applicant and Ms B had ended, he had lost his job and he was homeless. [33] Further, he was abusing alcohol and cannabis at the time.[34]
[33] Exhibit A1, Applicant's SFIC.
[34] Exhibit A1, Applicant’s SFIC.
In the hearing the Applicant admitted that he bit a police officer but said he could not recall spitting – he said he does not have a good memory of that time. He said he was not told what the injection was for and he was afraid. There were four or six men on him, one with his knee on his neck and he could not breathe.[35] He said the bite was not intentional but he could not breathe and was scared for his life. He said he apologised to the police officer later.[36] Given the police records state that several men were holding the Applicant down and one was pushing down on his right shoulder and chest – both of those areas being near the neck area – I am inclined to accept the Applicant’s evidence that he felt he could not breathe because of force being applied and that he was afraid. I accept that he was in a mentally disturbed state and therefore the bite could have been accidental in the context of the Applicant believing that he was struggling for his life. I am satisfied that the Applicant spat at the police officer in the same context – that he was disturbed and feared for his life.
[35] Transcript, page 40, lines 1 to 34.
[36] Transcript, page 25, lines 1 to 14.
The Applicant was subsequently found guilty and convicted of “assault police officer in the execution of duty” (on 10 December 2015).[37]
[37] Exhibit T1 Section 37 T documents, T14.
Threats to kill Ms B, Child A and himself in June 2015
According to police records[38] on 17 June 2015, Ms B told the police that the Applicant had sent some Facebook messages to her mother. The messages all related to the Applicant wanting to see his son and indicated that he thought he was being kept away from his son because of his race and religious beliefs. The police did not consider the messages to warrant an AVO. However, the police contacted the Applicant and he made several threats to kill Child A, himself and apparently Ms B. He yelled:
“I swear to God officer I have lost everything and have 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.”
[38] Exhibit R2, Respondent’s Tender Bundle, pages 15 and 16.
He repeated that threat to the police several times throughout the conversation, becoming irate to the point where his words became incomprehensible. The police charged him and served him with an AVO.
In the hearing the Applicant said he could not remember making those threats, but he has never had any plan or intention to burn the house down or hurt Ms B or Child A. He said he loved Ms B and Child A.[39] At the time, he was homeless and living on the street, it was four or five o’clock in the morning, he did not know what was going on and he did not know what he was saying.[40]
[39] Transcript, page 39, lines 25 to 40.
[40] Transcript, page 18, lines 1 to 18.
The Applicant subsequently pleaded guilty to two charges of “stalk/intimidate intend fear physical etc harm (domestic) on 15 September 2016. In passing sentence, the learned District Court Judge said:
“Sadly, one would love to believe that threats like this are empty. Tragically, in Australia, almost on a weekly basis, typically a man and rarely a woman, but sometimes a woman, a man feeling offended by the loss of his relationship and often difficulties over access to children decides it is appropriate to kill the ex-partner, sometimes kill the children and sometimes kill themselves. 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. Why anyone would feel the desire to make an empty threat to kill someone, in circumstances where they have already been convicted of physically assaulting them and doing further acts to them is beyond belief. Why you would say it to a police officer reflects an unbelievable lack of control and a great concern that he will actually go and do exactly that if he is prepared to admit as much to police. It is, needless to say, why the Courts are so reluctant to deal with these matters other than harshly.” [41]
[41] Exhibit T1, Section 37 T documents, T 24, pages 510 to 513.
I am satisfied that the Applicant made the threats and that he did not intend to carry them out. However, for the reasons given by the learned sentencing Judge, it is still very serious conduct.
Assault and destroy/damage property in July 2015
According to police records[42] on 13 July 2015, Ms B’s mother, “Ms M”, and her grandmother pulled up outside her grandmother’s home. The Applicant, who was already there, walked up to Ms M and immediately began yelling in her face “Give me my child!”. Ms M, fearing an assault, placed her hands in front of her. The Applicant raised his right arm and struck her on the left side of her face. She then put her body between the Applicant and her own mother.
[42] Exhibit R2, Respondent’s Tender Bundle, page 11.
The Applicant continued his verbal tirade and struck the back passenger side window with his fist, smashing the glass, spraying glass all over Ms B’s grandmother who was cowering on the back seat of the car. The Applicant took Ms B’s grandmother’s mobility walker, which was beside the car, walked to the driver’s side of the car, and attempted to smash another window but was unsuccessful. He raised the mobility walker above his head on two occasions and forcefully slammed it into the windscreen of the car, causing glass to smash. He then walked to Ms B’s car and slammed the walker down on the windscreen, smashing the windscreen. He then hurled the walker into the air causing a number of pieces to break, rendering it inoperable. After learning the police had been called, he ran away.
The Applicant was charged with several offences arising from this incident. He pleaded guilty in the District Court to three counts of destroy/damage property and to stalk/intimidate intend fear physical etc harm (domestic). He pleaded not guilty to common assault.[43] In the trial a neighbour gave evidence that he heard the Applicant say “I want my child. Give me my child”, he saw the Applicant strike a car with the walker and he dialled Triple-0. The neighbour did not witness the rest of the alleged incident.[44]
[43] Exhibit T1, Section 37 T documents, T24, page 520.
[44] Exhibit T1, Section 37 T documents, T24, pages 525 to 526.
The Applicant gave evidence that he and Ms B used to meet secretly at her grandparents’ house so he could see Child A. She had invited him there to see Child A and asked him to bring money because she was broke. Ms B arrived first and, by accident, Ms M had also arrived. He said he was angry because Ms B had told him that her mother would not let him see Child A. He alleged that Ms M had racially abused him and pushed him in the chest. While he admitted that he “lost it”, he denied having struck her. He said after she put her hands on his chest and pushed him, he went to get the walker. During his evidence in the trial, the Applicant appeared to start ranting, saying things that were clearly not correct. The transcript of those proceedings indicates that his lawyer became concerned that he was “not well” and the presiding Judge observed that “today we have witnessed frankly a breathtaking performance in the witness box, where the man has shown extraordinary anger”. [45] In these proceedings, it was conceded on the Applicant’s behalf that during the trial he was out of control, extremely angry, and made fanciful claims in his defence. [46]
[45] Exhibit T1, Section 37 T documents, T24, page 536.
[46] Exhibit A1, Applicant's SFIC.
The learned Judge pointed out that the Applicant’s allegations about Ms M’s behaviour had not been put to her when she gave evidence and that this “weakens his case very considerably indeed”. He assessed Ms M to be a credible witness, and he found the Applicant guilty of common assault.[47]
[47] Exhibit T1, Section 37 T documents, T24 pages 531 to 535.
In the hearing the Applicant was asked if he adhered to his previous evidence that Ms M was racially abusive to him, and he said no.[48] The Applicant’s own evidence in these proceedings was that during this period he was suffering poor mental health and abusing alcohol and cannabis. Given this, and the presiding Judge’s assessment that Ms M’s evidence was credible, I am satisfied that the Applicant did strike Ms M during this incident.
[48] Transcript, page 32, lines 29 to 30.
Verbal abuse of police in August 2015
According to police records,[49] on 8 August 2015 the police contacted the Applicant in relation to two suitcases of his belongings that had been left at the police station by another person and his response was “How the fuck you get my number? Don’t touch my fucking shit. Don’t touch my bags you fucken shit. I’ll come get them from the house”. He was advised that he could pick the bags up from the police station and he was not to go to the house. He responded with more verbal abuse before hanging up. The Applicant does not recall this although he does not dispute it either.[50] I am satisfied that the police record is correct.
[49] Exhibit R2, Respondent’s Tender Bundle, page 9.
[50] Transcript, page 32, lines 1 to 8.
The Applicant was dealt with for the offences discussed above on 10 December 2015 and 3 August 2016. In December 2015, he was convicted of:
·common assault, and sentenced to imprisonment for six months;
·fail to appear in accordance with bail, and put on a good behaviour bond;
·assault officer in execution of duty, and sentenced to imprisonment for six months;
·destroy or damage property, and sentenced to imprisonment for three months;
·common assault (DV), and sentenced to imprisonment for 12 months with a non-parole period of nine months (reduced to three months on appeal);
·stalk/intimidate intend fear physical etc harm (domestic), and sentenced to imprisonment for six months;
·destroy or damage property, and sentenced to imprisonment for three months; and
·destroy or damage property, and sentenced to imprisonment for three months.
On 3 August 2016 he was convicted of stalk/intimidate intend fear physical etc harm (domestic),and sentenced to imprisonment for 15 months with a non-parole period of seven month (reduced to five months on appeal).[51]
[51] Exhibit T1, Section 37 T documents, T3, page 284.
Incidents while in Immigration Detention
I have before me a bundle of Detention Centre Incident Reports, some of which are potentially relevant in terms of the Applicant’s behaviour in detention and the risk he poses to the community.
10 December 2017
A report on 10 December 2017 recorded that the Applicant alleged that another detainee had punched him several times to the back of the head because of a dispute in relation to the use of the computer. It was noted that the other detainee’s wrist injury was consistent with him having assaulted the Applicant in the manner the Applicant claimed. The other detainee alleged that it was actually the Applicant who assaulted him with a chair that caused the wrist injury.[52] I am not satisfied that the Applicant assaulted another inmate on this occasion.
[52] Exhibit R2, Respondent’s Tender Bundle, page 62.
7 May 2018
A report on 7 May 2018 recorded that a detainee, “Mr C”, alleged that he had been assaulted by the Applicant and another detainee. Mr C alleged that he had entered his room to find the Applicant and the other detainee smoking and doing drugs. He said they had a heated verbal altercation which ended with the Applicant taking Mr C by the throat and striking his head against the wall.
The Applicant said he was in his room with the other detainee who was assisting him with legal paperwork. He said Mr C asked the other detainee to exit the room and the Applicant said that they would be finished shortly and he would leave at that time. He said Mr C became unhappy at this and started to become aggressive towards him. Mr C left the room and went to the office’s station. Officers noted that the room did not have any residual cigarette smoke odour, nor did it appear that any illicit drug use had been taking place. There is no indication in this report that Mr C had any visible injuries.[53] I am not satisfied that the Applicant assaulted Mr C.
[53] Exhibit R2, Respondent’s Tender Bundle, page 59.
25 June 2018
A report on 25 June 2018 recorded that the Applicant was involved in a verbal and physical altercation with another detainee, Mr H.[54] In these proceedings, the Applicant claimed that he and Mr H are good friends and they have verbal argument sometimes but they did not physically fight. They settled the argument and are still good friends. The report does not indicate that the alleged violence was witnessed by an officer and it is not apparent who the report of violence came from. Neither inmate wished any further action to be taken. I am not satisfied that the Applicant physically attacked Mr H.
[54] Exhibit R2, Respondent’s Tender Bundle, page 56.
25 June 2019
A report on 25 June 2019 recorded that in the morning there was a physical altercation between the Applicant and another detainee. An officer responding to noise, entered an apartment and witnessed a crowd of detainees standing between the Applicant and the other detainee, separating them from each other. The other detainee had some red marks on the left side of his neck and his headphones were broken. The Applicant said he was watching television and the other detainee started calling him an African dog and attempted to pull put his hands around his neck. The Applicant denied physically touching the other detainee and said he was just trying to protect himself. The Applicant said he did not know how the other detainee’s headphones got broken or how he had red marks on his face. The Applicant had no visible marks on him and declined medical assistance. The other detainee told officers that the Applicant had started calling him names such as “terrorist” and then grabbed his headphones from around his neck. He said he did not physically touch the Applicant and was just trying to protect himself.[55] The Applicant did not specifically address this evidence. I am satisfied that he was involved in a physical altercation as the aggressor.
[55] Exhibit R2, Respondent’s Tender Bundle, page 51.

Later that afternoon the Applicant was involved in a physical altercation with another detainee. An officer observed the Applicant saying in a loud voice “Did you see that? Did you see that?” to the other detainees around him. He said that he had been attacked by the other detainee. He had a small scratch on his finger that required a Band-Aid. The other detainee said that the Applicant had ripped his jumper. The Applicant said that the other detainee was waiting for him in the stairwell and attacked him for no reason. Surveillance footage confirmed that the other detainee was waiting in the stairwell for the Applicant and that is when the physical assault took place.[56] I am satisfied that the Applicant was the victim of an attack on this occasion.
[56] Exhibit R2, Respondent’s Tender Bundle, page 52.
30 July 2019
A report on 30 July 2019 recorded that the Applicant entered the kitchen area to collect his breakfast. He asked for extra peanut butter and honey. The kitchen worker handed over two lots of peanut butter but explained that he had already received his honey. The Applicant raised his voice stating that the Chinese kitchen worker was racist due to having given the previous detainee who appeared to be of Chinese nationality extra honey, he called him a “fucking asshole”. A guard intervened and the Applicant called her a “fucking idiot”. The Applicant continued to speak poorly towards the officer and the kitchen staff while he left the kitchen area.[57]
[57] Exhibit R2, Respondent’s Tender Bundle, page 49.
The Applicant admitted to these allegations. He said he got upset because he had been waiting in the queue a long time and the staff member told him that she had already given him honey but that was not right and he thought she confused him with another African person. He felt discriminated against. He had been in detention a long time and it is a difficult place. He knows now he should have walked away and if he found himself in that situation again, he would. He feels ashamed about this behaviour.
29 September 2019
A report on 29 September 2019 recorded that the Applicant reported that he had been assaulted by another detainee with scissors. Officers searched the common area and found a pair of scissors under the couch. The Applicant had a small cut to his left shoulder. A short time later the other detainee reported that the Applicant had come from behind him and put him in a headlock, attempted to drag him to his room, and punched him in the head in various places before other detainees intervened. The other detainee appeared to have a small red bump on his forehead and redness and slight bleeding to the bottom of his right ear.[58] It does not appear that this allegation was put to the Applicant at the time. Nor did he address it in these proceedings. On the evidence, I am not satisfied that the Applicant attacked the other detainee, however I am satisfied that he was attacked with scissors.
[58] Exhibit R2, Respondent’s Tender Bundle, page 46.
21 October 2019
A report on 21 October 2019 recorded that a detainee accused the Applicant of physically assaulting him over a pair of pants. He said the Applicant pushed him against a wall, resulting in him grazing his back and right elbow. Photos were taken of his injuries. The Applicant told officers that he did not assault the other detainee and that he was the one who was assaulted although he had no visible injuries. He said he was assaulted when he asked the other detainee to return his tracksuit pants that had been stolen.[59]
[59] Exhibit R2, Respondent’s Tender Bundle, page 43.
In these proceedings the Applicant said he had just come back from having eye surgery and was resting in his room. A detainee who does not speak or read English, came into his room and asked for his book back. The Applicant said he did not have his book. The detainee left, then returned wearing track pants that had been stolen from the Applicant. The Applicant thought he was doing it to provoke him as he was not feeling well after his surgery. The Applicant and the detainee argued over the trackpants. The detainee has a disability and special needs. He denied assaulting him. Afterwards he got his pants back because the other detainees told him he should give them back.[60] If the Applicant was recovering from eye surgery it seems unlikely that he would engage in violent behaviour. There is not enough evidence to satisfy me that he attacked the other detainee.
[60] Exhibit T1 Section 37 T documents, T23, page 504 to 507.
31 October 2019
A report on 31 October 2019 recorded that the Applicant was accused of breaking a television and making threats to another detainee. It is recorded that several detainees saw him breaking a microwave and also punching the television, although the witness’s names are not recorded so it is not apparent whether these witnesses were the ones with whom the Applicant had an altercation at that time and therefore may have had an interest in making false allegations against him.
The report indicates that an officer attempted to move the Applicant away from the altercation, and the Applicant moved aggressively towards him. The Applicant then complied and was escorted to an interview room for questioning. One of the detainees (“the first detainee”) said that the Applicant had threatened his friend. The friend reported that the Applicant had made threats to the first detainee. The Applicant said that he had not broken the TV and he denied making threats of any kind. He was offered medical assistance and he accepted it. While the first detainee was being escorted away, he continued to make threats towards the Applicant, stating that he would kill him. He was told that such threats were not tolerated to which he said he did not give a fuck.[61]
[61] Exhibit R2, Respondent’s Tender Bundle, pages 38 to 42.
In these proceedings, the Applicant said he thought the detainee who had accused him of smashing the TV did it to try to get good character by going to the office and reporting that the Applicant had smashed the TV. He denied having smashed the TV, and said he often watches the TV to pass the time. He went to the common area and told the detainee that he did not break the TV and asked why he had said that. Then his friend jumped in and punched the Applicant. The Applicant ran behind a table and chairs. A supervisor who was nearby came in and told the Applicant to go away. The Applicant denied having been aggressive and did not threaten anyone. The detainee who initiated the incident got moved to a different compound.[62] Given the Applicant’s version and the report that officer’s witnessed the first detainee threatening to kill the Applicant, I do not find the reports from the other two detainees reliable which undermines the allegations made against the Applicant in general. I am not satisfied that the Applicant smashed anything or attacked anyone on this occasion.
[62] Exhibit T1 Section 37 T documents, T23, page 504 to 507.
16 and 17 January 2020
A report on 16 January 2020 recorded that the Applicant was the victim of an assault by another detainee.[63] In these proceedings, the Applicant said a person he had a disagreement with came into his room and punched him in the eye. The complaint was referred to police.[64] I accept that the Applicant was attacked in this way.
[63] Exhibit R2, Respondent’s Tender Bundle, page 36.
[64] Exhibit T1 Section 37 T documents, T23, page 504 to 507.
A report on 17 January 2020 recorded that the Applicant became non-compliant, dropped to the floor, and assaulted a staff member by grabbing him by the leg and refusing to let go. He was upset because he was being relocated to another compound.[65]
[65] Exhibit R2, Respondent’s Tender Bundle, page 33.
In these proceedings the Applicant said that he was brought back from hospital (after the attack the previous day) and told that he was going to be moved. He was very upset by this as he had been the victim of the assault and it is the instigator who is normally moved. He said when you are moved you do not get to pack your own things and he was afraid of losing all of his paperwork for the AAT proceedings and his belongings being stolen. He was also scared to move to that particular compound because there were people who had assaulted him before in that compound. Mostly, he was scared to go there because that is where his friend, Mr K had committed suicide the previous year. [66]
[66] Exhibit T1 Section 37 T documents, T20, pages 437 to 438; T23, pages 450, 457 and 458.
He indicated that in that incident an officer had kicked him and, after his case manager watched the footage of the incident and made a complaint, that officer got suspended. He has made a complaint to the Ombudsman and a person from there visited him in detention and watched the footage. He has been told that the complaint is being investigated.[67] I am satisfied that the Applicant was reluctant to go to the other compound and he dropped to the floor but there is not sufficient evidence that he attacked anyone.
[67] Exhibit T1 Section 37 T documents, T23, page 504 to 507.
3 February 2020
A report on 3 February 2020 recorded that the Applicant had threatened to kill himself. He also sad his family had abandoned him.[68] In these proceedings, the Applicant denied having said his family had abandoned him. He said his family would never abandon him, and he thought he may have expressed that he felt left behind as his brothers and sisters all have their own families and are busy working. He said his family remained a consistent support for him.[69] He said that being moved to the compound where his friend has suicided had brought on post-traumatic stress symptoms and his mental health had deteriorated. I am not satisfied that the Applicant said that his family had abandoned him or that they had.
[68] Exhibit R2, Respondent’s Tender Bundle, page 29; T20, page 438.
[69] Exhibit T1 Section 37 T documents, T23, page 504 to 507.
21 March 2020
A report on 21 March 2020 recorded that the Applicant was verbally abusive, threw a freshly made cup of coffee at another detainee, and threatened to kill him. The Applicant told officers that the other detainee had rudely asked him for chocolate and when he refused, he approached him aggressively. They both grabbed each other, pushing and wrestling with each other. As they were wrestling the cup of coffee accidentally tipped all over the other detainee. He said he was then chased by the other detainee and he ran outside calling for the officer’s attention.[70]
[70] Exhibit R2, Respondent’s Tender Bundle, pages 27 to 28.
In these proceedings, the Applicant said the other detainee used to be his roommate and because of his violence he had been moved out. He is a big man and the Applicant was scared of him. Because of his size, the Applicant was very aware to try to avoid anything physical so he ran away from him and called the attention of the officers.[71] I am not satisfied on the evidence that the Applicant was the aggressor in this incident or that he deliberately threw coffee at the other detainee.
[71] Exhibit T1, Section 37 T documents, T23, page 504 to 507.
IS THE APPLICANT A DANGER TO THE AUSTRALIAN COMMUNITY?
My assessment of whether the Applicant is a danger to the Australian community includes a consideration of the nature, seriousness and extent of his offending and other harmful conduct to date. I do not consider conduct that was unlawful but not harmful or dangerous, such as him breaching an AVO by visiting Ms B after she invited him to visit her, to be relevant except as far as it may show a disregard for the law at the time.
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.
Accordingly, the Applicant’s conduct includes verbal aggression including very serious threats, and physical aggression against people and property. Not only it is readily apparent that this is serious and dangerous conduct, the sentences imposed by courts confirm the objective seriousness. The harm that resulted from the Applicant’s aggressive, violent conduct included minor physical injury, fear and distress to individuals as well as significant damage to property.
This is indicative of the harm that is likely to result from further similar conduct, which assists to inform whether the Applicant is a danger to the Australian community. I am satisfied that the likely harm from further similar conduct is of the same nature and could well be worse in degree depending on the circumstances and the victim. For example, Ms B’s grandmother could have sustained cuts to her skin or a shard of glass could have been propelled into her eye. It was only by chance that she was not injured.
I consider significant psychological or emotional distress to constitute a relevant harm. A threat to kill that is made by a mentally disturbed person who has shown aggression previously is certainly capable of causing extreme fear and psychological distress. Hence, there are laws against such conduct and it was met with condign punishment by the District Court.
It is then necessary to consider the risk that the Applicant will engage in harmful conduct in the future if he is allowed to return to the wider Australian community.
I do not have the benefit of an independent, expert risk assessment before me. It is readily apparent that the Applicant’s criminal conduct occurred in circumstances when his mental health was very poor, he was in emotional distress, his accommodation was unstable, and he was abusing alcohol and cannabis. I do have the benefit of independent, expert evidence about the Applicant’s mental health and the risk of him returning to drugs and alcohol if he is allowed to return to the wider community, as well as an opinion expressed by an expert in the course of giving oral evidence about the risk of further offending.
Further, I have records that give an insight into the Applicant’s engagement with mental health services and his behaviour in detention in recent years.
It is helpful, first, to look at the underlying cause of the Applicant’s mental health problems, his drug and alcohol abuse and how those things relate to his offending and other aggressive behaviour.
Past trauma before coming to Australia
In 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.[72] 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. [73]
[72] Exhibit A1, Applicant's SFIC.
[73] Exhibit A1, Applicant's SFIC.
Deterioration of the Applicant’s mental health
The 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.[74] Due to his sense of shame, he did not feel that he could access family support. He said the situation is different now.[75]
[74] Transcript, page 7, lines 1 to 25.
[75] Transcript, page 9, lines 13 to 22.
From 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.
The 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”.[76]
[76] Exhibit T1, Section 37 T documents, T23, page 480 to 492.
Treatment for the Applicant’s mental health
On 4 November 2015 the Applicant entered custody and he has been incarcerated or detained ever since.
While 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.[77] According to him, it was the first time he consistently accessed effective mental health treatment.
[77] Exhibit T1, Section 37 T documents, T12.
Between 2016 and 2017, while in gaol, the Applicant completed programs through EQUIPS including their Foundation Program and Domestic Abuse Program.[78]
[78] Exhibit T1, Section 37 T documents, T 23, page 496 to page 507; Exhibit A2, Applicant’s Tender Bundle, page 3 and pages 33 to 34.
On 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”).[79]
[79] Exhibit T1, Section 37 T documents, T12.
The Applicant’s legal representatives helpfully provided a table of appointments that the Applicant has had with STARTTS since November 2017 which indicates appointments that he attended and appointments that he missed. The table indicates that while he has missed some sessions, his attendance has been regular and reasonably consistent. It is worth mentioning a few clinical notes pertaining to rehabilitative treatment:
·a report dated 5 December 2019 noted that “cognitive restructuring was used to identify and challenge problematic thoughts and beliefs about anger”.[80]
·a report dated 1 July 2020 discussed the Applicant’s treatment in relation to anger management;[81]
·a report dated 13 October 2020 noted that the Applicant had been provided with psychoeducation counselling in terms of anxiety , his coping mechanisms and stress management strategies with particular focus on emotional regulation;[82] and
·another report of the same date noted that the Applicant was “fully present and demonstrates ability for emotional self-regulation” and that he “often remarks that he is determined to get it right should he be given another chance in life”.[83]
[80] Exhibit A2, Applicant’s Tender Bundle, page 127.
[81] Exhibit A2, Applicant’s Tender Bundle, page 154.
[82] Exhibit A2, Applicant’s Tender Bundle, page 165
[83] Exhibit A2. Applicant’s Tender Bundle page 168,

In relation to missed appointments, the Applicant said:
“My counsellors have said that I sometimes withdraw from social contact and treatment to cope with my intense feelings. They have noticed I sometimes do not attend sessions when I am particularly stressed, such as when I am going through a legal process, or when I have experienced the death of a loved one or friend. This does not mean I am not committed to my recovery. It means that sometimes I still have difficult days, and this is how I cope. Life in detention is very hard, and it is a constant challenge to stay hopeful for the future. I have witnessed a lot of violence and death in my time here. I have had good friends commit suicide. Even so, I have always returned to counselling, and I value the tools it has given me.”[84]
[84] Exhibit A2, Applicant’s Tender Bundle, page 3.
In 2020, the Applicant commenced the “Men’s Behavioural Change Principles” as part of his STARTTS counselling. He describes it as follows:
“This is a set of tools designed to help men develop healthy relationships. It has counselling which challenges old ways of thinking and behaving in relationships. It has helped me to develop greater self-respect and take more responsibility for my actions. It has helped me understand how my past behaviour has impacted on others, such as [Ms B] and her family, and why I behaved the way I did.”[85]
[85] Exhibit A2, Applicant’s Tender Bundle, page 4.
In March 2021, the Applicant was engaged in an online drug and alcohol abuse course and an Understanding Addiction course.[86]
[86] Exhibit A2, Applicant’s Tender Bundle, page 3.
The Applicant is currently taking an antidepressant and mood stabilisers.[87]
[87] Transcript, page 53, lines 19 to 25.
The Applicant has not used alcohol or drugs since he was incarcerated[88] and has therefore been abstinent for five and a half years. Nor has he committed any offences in gaol or detention.[89]
[88] Exhibit T1, Section 37 T documents, T14.
[89] Exhibit T1, Section 37 T documents, T12.
There Applicant has engaged in some aggressive behaviour while in immigration detention. The timing is significant, first because when he engaged in this behaviour, he had been abstinent from drugs and alcohol and engaging in mental health treatment for around two years and, secondly, because his aggressive behaviour occurred during a period when his psychological and emotional state had deteriorated because of external stressors.
According to the Applicant, on 25 January 2019 his close friend, “Mr K”, took his life. Mr K and the Applicant were the only detainees from Sierra Leone. Mr K hung himself in the toilet and the Applicant saw his body hanging there. It affected him deeply. Mr K had been detained for three years and suffered a mental breakdown because his case manager told him he was going to be sent back to Sierra Leone. He did not have the same family support that the Applicant has. After that happened, the Applicant was moved to another compound and a month later a detainee from Iraq took his life by hanging himself with a belt. In April 2019, the Applicant’s stepbrother passed away from a heart attack. He could not be there for the funeral. This stepbrother had been very close and supportive, he used to visit the Applicant, and he had arranged legal representation for the Applicant.
The incident when there was a physical altercation between the Applicant and another detainee in which the Applicant caused red marks on that person’s neck occurred in June 2019. The incident where he verbally abused kitchen staff occurred in July 2019. By this time, the Applicant had suffered two devastating losses in an environment that was already stressful for him. In relation to that environment in general, the Applicant said there are people there where it takes only one second for things to get out of control and the police are often called. It can be risky to press charges because then people retaliate. He does not feel safe in immigration detention. He is very aware of doing what he can to stay out of any incidents.
In relation to the Applicant’s verbal abuse of kitchen staff over a relatively minor problem, he said he had undergone a great deal of counselling since that time and if something similar occurred again he would walk away or make a written complaint.[90] I note that with respect to the incident on 17 January 2020 when the Applicant is alleged to have held onto an officer’s leg and he alleges that an officer kicked him, he did not respond with aggression but made a formal complaint.
[90] Transcript, page 30, line 35 to page 31, line 10.
The Applicant said that the ongoing counselling he does on a weekly basis includes coping with situations, anger management and stress management, and how to communicate in a positive way.[91] I asked the Applicant what he would do if somebody was disrespectful to him and he said:
“You come down and handle the situation in a positive way instead of a negative way, you know. You just come down and say listen, this is it, this is it, you know. Resolve the issue.”[92]
[91] Transcript, page 34, lines 1 to 16.
[92] Transcript, page 33, lines 1 to 6.
I am not satisfied that the Applicant has shown aggression or disrespect toward authority figures while in gaol or detention except for the incident on 30 July 2019. The Applicant said he does not have any issue with the police. He said they do a good job and they have a hard role protecting the community.
There is a report before me from Mr Tim Watson-Munro, psychologist[93] who examined the Applicant by telephone on 4 and 5 February 2020.[94] Mr Watson-Munro noted the Applicant’s traumatic background in Sierra Leone, his description of his relationship with Ms B as dysfunctional and fractured, and his excessive consumption of alcohol and smoking cannabis during the period of offending. The Applicant reported experiencing flashbacks, hypervigilance to danger, diminished threshold for frustration, a poor capacity to trust others, survivor’s guilt, high levels of anticipatory anxiety and memories which could be triggered by witnessing media scenes involving both fictional and non-fictional situations referable to violence and the ongoing conflicts around the planet.
[93] Exhibit T1, Section 37 T documents, T23 pages 459 to 472.
[94] Transcript, page 45, lines 1 to 6.
Mr Watson-Munro considered that the substance abuse was the Applicant’s attempt at self-medicating in relation to his PTSD symptoms. In the hearing he clarified that although the Applicant started using drugs and alcohol simply because they were available, that would have blocked the emotions associated with his traumatic memories and led to a dependence on those substances. In essence the Applicant was more vulnerable to substance abuse because of his underlying psychological frailties.[95]
[95] Transcript, page 55, lines 24 to 40.
Mr Watson-Munro opined that the Applicant suffered from PTSD, major depression and an anxiety disorder. He thought he has also suffered from a substance abuse disorder during the period of offending. He opined that although his offending behaviour was troubling, it occurred over a short period of time.
Mr Watson-Munro opined that there was a direct nexus between the Applicant’s mental health issues and his offending particularly in relation to his impulsivity, hypervigilance and his inability to trust others. Further, as he was unmedicated during the time he was offending, the Applicant’s judgement was impaired.
Mr Watson-Munro considered that the Applicant appeared to be making progress in treatment although he would need to continue his treatment if he is returned to the community. His motivation to engage in treatment had been well demonstrated, and his motivation to continue treatment was further galvanised by his fear of what could happen to him if he is returned to Sierra Leone as he genuinely believes that he will be tortured and possibly killed there. Continuing treatment should involve supportive and motivational psychotherapy in addition to cognitive behaviour therapy focused upon the further development of impulse control strategies, relapse prevention strategies, systematic desensitisation to his anxiety and specific work focused on the symptoms associated with PTSD. He must also maintain his regiment of medication.
Mr Watson-Munro said the Applicant had expressed remorse for his behaviour and a strong desire to move forward with his life in a prosocial manner in Australia.
With respect to the incidents in immigration detention, Mr Watson-Munro said he has been working in the area of crime and psychology for around 43 years including a period as a resident psychologist at Parramatta gaol which, at that time, was considered to be probably the toughest gaol in New South Wales if not Australia. He said there were incidents every day and much more severe than the ones in the reports. He said is not unusual for there to be incidents between prisoners and in detention centres because they are emotionally charged environments. He noted that with the Applicant’s PTSD he is under a lot of pressure.[96] He placed some significance on the fact that the incident involving the abuse of kitchen staff was a verbal altercation and did not involve any physical violence. However, he said it was an indication that the Applicant still needed further treatment.[97] I note that he has had further treatment since then.
[96] Transcript, page 47, lines 32 to 47.
[97] Transcript, page 60, lines 30 to 45.
Mr Watson-Munro added that outside of that tense environment, and back in the community, the Applicant’s level of risk would be lower and the support of his family was another protective factor he would have.[98] I pause here to add that two of the Applicant’s counsellors provided evidence that the Applicant’s mental health would likely improve if he was permitted to return to the Australian community. Ms Valenzuela said:
[98] Transcript, page 48, lines 5 to 10.
“[the Applicant’s] overall well-being and psychological condition will be greatly improved by receiving a prompt and positive resolution of his legal and immigration case and release in the community”.[99] Mr Beya similarly commented that being released from detention would:
“afford him a more conducive environment as to work on resolving and processing residual trauma -related issues”[100]
[99] Exhibit A2, Applicant’s Tender Bundle, page 156; see also page 161 and 110.
[100] Exhibit A2, Applicant’s Tender Bundle, page 37.
The Applicant’s mental health needs are not a reason for granting the visa, but any improvement to his mental health that is expected to occur if he is returned to the community is relevant to his risk of further offending given the expert evidence that his mental health problems played a part in his offending.
In relation to the Applicant’s failure to continue treatment in 2012, Mr Watson Munro said that it is not unusual for people to find treatment too confronting and they avoid it. Then their symptoms may become worse and they re-engage.[101] When I asked if the Applicant’s history of avoiding treatment when he was feeling particularly low was a risk factor, he said he thought the risk that the Applicant would avoid treatment going forward was low given that he trusts his treater and he has confidence in the organisation (meaning STARTTS). He thought that if the Applicant experienced symptoms he would reach out for help. Further if he is being assessed and treated on a regular basis, symptoms of distress would become apparent to the person who is treating him.[102]
[101] Transcript, page 50, lines 23 to 33.
[102] Transcript, page 58, lines 30 to 40.
Mr Watson-Munro opined that the treatment the Applicant is receiving with STARTTS will impact on all aspects of his functioning, improve his mood, his impulse control, and his anger, and reduce his risk of drug use. If his mental health issues are treated than his likelihood of relapsing into drugs is reduced.[103] On that last point, Mr Watson-Munro said that given the length of time the Applicant has been abstinent, he is now in “full remission” which means there is a low risk of relapse.[104] He said illicit drugs are available in detention – he had assessed many people who told him they are available. Given the Applicant is in full remission, the likelihood of him relapsing is far less than somebody who had only been drug-free for six to 12 months or even 18 months. He acknowledged that some people do relapse when they are released to the community in the absence of protective factors and treatments[105]
[103] Transcript, page 49, lines 34 to 44.
[104] Transcript, page 49, lines 23 to 30.
[105] Transcript, page 54, lines 22 to 39.
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.”[106]
[106] Transcript, page 57, lines 20 to 36.
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.”
The Applicant expressed a commitment to continue his treatment in the community through STARTTS or the Queensland equivalent, the Queensland Program of Assistance to Survivors of Torture and Trauma (“QPASTT”). He said he is very sorry and ashamed for how he treated Ms B and her mother. He knows he caused them a lot of distress and hurt. He is committed to working on his mental health to ensure he never behaves in such a way again to Ms B or anybody. He takes his medication every day and he intends to continue to do that as he understands that he needs it and it helps him a lot. The Applicant no longer feels that there is a stigma associated with mental health.[107]
[107] Transcript, page 7, lines 41 to 43.
In relation to drugs and alcohol, the Applicant did not use substances before coming to Australia and he feels a lot better without them.[108] He has been abstinent for five and a half years. It is true that his abstinence has occurred in a highly structured, predicable environment which can be quite artificial and unlike life in the wider community. However, Mr Watson-Munro’s evidence was that the extended time that the Applicant has been abstinent, of itself, lowers his risk of relapse.
[108] Exhibit A2, Applicant’s Tender Bundle, paragraph 20.
If the Applicant is allowed to return to the wider Australian community, he intends to get a job and he hopes to go to TAFE to learn a trade. Before entering custody, he had completed a Certificate III in Advanced English for Further Study and a Certificate III in Transport, Logistics and Warehousing. He has previously worked at Sydney airport and then as a galvanising labourer. While in custody he did a welding and first aid course through TAFE.
With respect to Ms B, he accepts that she has moved on with her life and the relationship is over. He is highly motivated to demonstrate he can be a responsible father to Child A with a view to sharing custody in the future.[109] He intends to go through the proper processes to see Child A, including contacting Relationships Australia to arrange mediation with Ms B and if necessary, going through the Family Court. He said:
“I will seek access to him in a slow and respectful way, through the appropriate channels such as a family lawyer. I will abide by any decision of Family Court makes about visitation or custody rights”.
[109] Exhibit T1, Section 37 T documents, T14.
The Applicant understands that if he is released, he first needs to keep working on himself. He would like to do a parenting course to learn how best to parent Child A. He feels he has a lot to learn and he will do whatever it takes to be a good father. He does not want to distract Ms B from her relationship, her happiness and her care of Child A. He does not want to rush into another relationship. His priority is his son. Ms B is friends with one of the Applicant’s sisters[110] so there appears to be some prospect of positive communication between the Applicant and Ms B via that sister.
[110] Transcript, page 13, lines 18 to 19.
I accept that these are the Applicant’s intentions. A worst case scenario for the Applicant is that Ms B opposes him having contact with Child A and he has to go through the stress of court proceedings which can be drawn out and expensive, and would undoubtedly worsen relations with Ms B as he would be putting her through that process too. This sort of situation is something that could have a negative impact on the Applicant’s mental health and therefore his risk of offending. I accept that the risk of re-offending would be mitigated by continuing counselling and other protective factors such as employment, stable accommodation and family support.
The Applicant has a mother, five siblings, two stepsiblings, a stepmother and three nieces in Australia.[111] He has a close relationship with his mother and siblings. He talks to his younger brother, “Mr F”, every day. When he is down and needs to talk to someone, he calls Mr F. Mr F supports him in “everything, emotionally and financially”. Another brother brings him things he needs in detention, such as clothing. A third brother attended the Applicant’s previous hearing in this Tribunal last year. He is also in touch with his two sisters, one of whom provided a letter of support for him.
[111] Exhibit T1, Section 37 T documents,T12.
Mr F provided some letters of support. He is a barber by profession. He has offered accommodation and assistance to help the Applicant to integrate back into the community.[112] One of the Applicant’s sisters said she speaks with the Applicant on FaceTime every day and she believes he regrets his actions. She is also willing to provide accommodation and support to help him integrate back into the community.[113] The Applicant feels that stable accommodation is important to his rehabilitation and he plans to live with Mr F in Queensland if he is allowed back to the community.[114]
[112] Exhibit T1, Section 37 T documents, T10 page 308.
[113] Exhibit A2, Applicant’s Tender Bundle, page 43.
[114] Transcript, page 9, lines 5 to 12.
Mr F gave evidence in the hearing and he impressed as forthcoming and measured in his evidence. I found him to be a reliable witness. He is not the brother who was involved in a fight in 2014. He said, growing up, the Applicant looked after him, he was his coach, he taught him to read and write and how to be a good boy[115], for example he told him to do his homework and play sport rather than “hanging out with the bad boys”.[116]
[115] Transcript, page 64, lines 12 to 19.
[116] Transcript, page 70, lines 14 to 27.

Mr F’s, his wife and child live in a quiet, friendly, family oriented suburb not far from Brisbane. If the Applicant is released, they will pick him up from the airport and take him to their home where he will have his own bedroom.[117] Mr F’s wife has had some mental health treatment to cope with the death of her sister back in Africa, and he and his wife will gladly help the Applicant to take his medication and attend counselling, including arranging transport to see a QPASTT counsellor.[118]
[117] Transcript, page 64, lines 35 to 45.
[118] Transcript, page 65, lines 10 to 340.
Mr F and his wife are both employed. Because of his wife’s line of work, she can help the Applicant write a resume and seek an apprenticeship. It was the Applicant who taught Mr F to cut hair so Mr F is confident the Applicant could get a job as a barber where he works.[119] Mr F and his wife only drink socially, when they are outside their home, and they do not keep alcohol at home.[120]
[119] Transcript, page 66, lines 1 to 35.
[120] Transcript, page 67, lines 15 to 22.
I asked Mr F what his thoughts were about violence in families and men being aggressive to women. He said:
“In my family, we would never expect something like that. I would never expect – I’ve never seen my dad bash my mum, or my brother or me bash my wife. I’ve never been through that… It’s definitely not okay. And [the Applicant] has learned his lesson, and I believe it’s not something that he’s going to do or he’ll think of doing or anything like that anymore.”[121]
[121] Transcript page 69, line 44 and page 70, line 5.
I asked Mr F if he had ever known the Applicant to be violent or aggressive before he moved out of the family home. He said no.
Another person, Ms Z, who has known the Applicant since 2009, has offered any support that the Applicant may need, mentally or otherwise.[122]
[122] Exhibit A2, Applicant’s Tender Bundle, page 44.
Conclusion
The Applicant has a history of aggressive behaviour, that includes some relatively minor assaults. This behaviour occurred in the context of untreated mental health problems, substance abuse and severe personal stressors. Mr Watson-Munro considers that the mental health problems contributed to the substance abuse and that both the mental health problems and the substance abuse contributed to the Applicant’s offending. Mr Watson-Munro opined that the Applicant has engaged well with treatment which has been beneficial for him, he is likely to continue to engage in that treatment, he is in full remission in relation to substance abuse, he is highly motivated to abide by the law, and his risk of re-offending is trending toward low. The incidents in detention in 2019 do not, in the context in which they occurred, give me serious concern.
Mr Watson-Munro opined that the Applicant requires continuing treatment. The Applicant accepts this and intends to continue treatment in terms of medication and counselling. He has concrete, realistic, pro-social plans in the event that he is allowed to return to the wider community. Those plans include strong protective factors such as employment, accommodation with Mr F and seeking the support of his family. He accepts that it could be difficult and take some time to resume his relationship with Child A. Given all of these matters, I am not satisfied that the Applicant presents a present and serious risk to the Australian community. Accordingly, I am not satisfied that the Applicant is a danger to the Australian community.
I do not consider, on reasonable grounds, that the Applicant is a danger to the Australian community for the purposes of subsections 36(1C)(b) or 36(2C)(b)(ii) of the Act.
DECISION
The Tribunal sets aside the reviewable decision dated 9 December 2020 and remits the matter to the Respondent for reconsideration in accordance with the following directions:
·the Applicant satisfies the criterion in section 36(1C)(b) of the Migration Act 1958 (Cth) (‘the Act’); and
·section 36(2C)(b)(ii) of the Act is not engaged by the Applicant.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Member R Bellamy

..............................[SGD]..........................................
Associate
Dated: 16 July 2021

Date(s) of hearing: 29 and 30 April 2021

Counsel for the Applicant:

Solicitors for the Applicant:

Ms Kathleen Heath

Salvos Legal

Counsel for the Respondent:

Solicitors for the Respondent:

Mr Timothy Reilly

Australian Government Solicitor

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

T1

Section 37 T Documents (T1 to T25 pages 1 to page 609)

R

-

4 January 2021

A1

Applicant’s Statement of Facts, Issues and Contentions including Annexure A

A

18 March 2021

18 March 2021

A2

Applicant’s Tender Bundle (pages 1 to 174)

A

-

18 March 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

15 April 2021

15 April 2021

R2

Respondent’s Tender Bundle (pages 1 to page 67)

R

-

15 April 2021

[2021] AATA 2362

16 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
T1	Section 37 T Documents (T1 to T25 pages 1 to page 609)	R	-	4 January 2021
A1	Applicant’s Statement of Facts, Issues and Contentions including Annexure A	A	18 March 2021	18 March 2021
A2	Applicant’s Tender Bundle (pages 1 to 174)	A	-	18 March 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	15 April 2021	15 April 2021
R2	Respondent’s Tender Bundle (pages 1 to page 67)	R	-	15 April 2021