WZFX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1484
•18 January 2024
WZFX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1484 (18 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8167
Re:WZFX
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:18 January 2024
Date of written reasons: 5 June 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent's delegate dated 25 October 2023 to not revoke the cancellation of the Applicant's visa.
................................[SGD]........................................
Member Lee Benjamin
Catchwords
MIGRATION – Mandatory visa cancellation – South Sudanese citizen - Class XB Subclass 202 Global Special Humanitarian visa – section 501CA of the Migration Act 1958 (Cth) – failure to pass good character test – substantial criminal record – where offending encompasses violent crimes and includes convictions for assault offences - whether “another reason” exists for Tribunal to revoke mandatory cancellation of visa under section 501CA of the Migration Act 1958 (Cth) – Ministerial Direction No. 99 applied – Respondent’s delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth)
Youth Justice Act 1992 (Qld)Cases
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94
BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
DGKW and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 3229
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
EPU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 1536
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCAASP 29
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Minister for Immigration, Citizenship and Multicultural Affairs and Thornton [2023] HCA 17
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs and Anor [2023] HCA 37
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
QDWQ and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2012Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
International Covenant on Civil and Political Rights and its Second Optional ProtocolRefugees Convention
REASONS FOR DECISION
Member Lee Benjamin
5 June 2024
WHAT IS THIS DECISION ABOUT?
WZFX is a 24-year-old man,[1] born in Sudan. He arrived in Australia in 2005. He commenced committing crimes in September 2014 (aged around 16 years),[2] and has had a non-stop criminal offending career since. He has been found guilty of around 80 offences. His offending includes armed robbery, theft, assaulting and threatening to kill emergency workers and police officers, drug possession, negligently causing serious injury and affray, amongst others.[3] There is also some police information to suggest that the Applicant is a “founding member” of the “APEX Street Gang” in Victoria.[4]
[1] Exhibit R1, p 2, para 3.
[2] Exhibit Tr1, G4, p 43-52.
[3] Ibid.
[4] Exhibit Tr1, G11, p 81. The Applicant denies that the Police information is accurate.
The Applicant’s visa[5] was mandatorily cancelled in December 2019 because he has a substantial criminal record.[6] He requested revocation of the decision[7] and it was refused.[8] In November 2023, the Applicant applied to the Tribunal for review of the Minister’s decision[9] not to revoke his visa cancellation.[10] It is common ground between the parties that the Applicant fails the statutory character test for revocation.[11] Accordingly, the only question for the Tribunal to determine is whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[12]
[5] Class XB Subclass 202 Global Special Humanitarian visa.
[6] Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) requires the Respondent to cancel a visa if the person does not pass the character test because they have a substantial criminal record. The Applicant does not pass the character test (see below).
[7] Exhibit Tr1, G18, p 161-162.
[8] Subsection 501CA(4) of the Act; Exhibit Tr1, G3, p 17.
[9] The Tribunal has jurisdiction to review the decision under subsection 500(1)(ba) of the Act.
[10] Exhibit Tr1, G3, p 17.
[11] Subsection 501CA(4)(b)(i) of the Act; Exhibit R1, p 5, para 19-20; Exhibit A1, p 1, para 4.
[12] Subsection 501CA(4)(b)(ii) of the Act.
In this case, the nature of the harm wrought by the Applicant, his high reoffending risk, and the nature of the harm that would be caused if he repeated his past conduct, is so serious that countervailing considerations are insufficient to justify the Applicant remaining in Australia. Accordingly, I find there is not “another reason” to revoke the cancellation decision.
The hearing in this matter took place on 12 and 16 January 2024. The Tribunal received oral evidence from the Applicant and the following witnesses: A1 (cousin[13]), GX (nephew), CS (sister), MZ (cousin) and Harley Wanganeen (friend). The Tribunal also received the written submissions and evidence that appears in the agreed Exhibit Register, in Annexure 1 of these reasons.
[13] The Applicant’s evidence is that he considers A1 to be his mother (see A2, p 14).
LEGAL FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant was invited to, and did, make the representations in support of the revocation of the visa cancellation required by subsection 501CA(4)(a) of the Act.[14]
[14] Exhibit Tr1, G19, p 161 - G20, p 191.
Does the Applicant Pass the Character Test?
The character test is defined in subsection 501(6) of the Act. Under subsection 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in subsection 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more.”
On 20 June 2022, the Applicant was convicted in the Kyneton Magistrates Court of one count of Affray. Consequently, he was sentenced to a concurrent period of six months imprisonment.[15] Further, the Applicant was also convicted in the Melbourne County Court on 23 September 2019 of Negligently cause serious injury for which he was sentenced to three years detention in a youth justice centre.[16]
[15] Exhibit Tr1, G4, p 43-44.
[16] Exhibit Tr1, G4, p 43.
The Minister contends,[17] and the Applicant concedes,[18] that the Applicant does not pass the character test as defined by subsection 501(6) of the Act. I am satisfied (and find) that the Applicant does not pass the character test because the Applicant has a “substantial criminal record”. He cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[17] Exhibit R1, p 5, para 19-20.
[18] Exhibit A1, p 1, para 4.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
The central question in this review is whether the Tribunal, standing in the Minister’s shoes, is satisfied that there is “another reason” why the cancellation decision should be revoked under subsection 501CA(4). I must “do over again” the task of the primary decision maker, making my own findings of fact, based on the material before me, undertaking my own assessment against the statutory criteria. This requires me to review the Applicant’s representations and the evidence put forward in support of them. Overall, I am required to examine the factors for and against revoking the cancellation.
In considering whether to exercise the discretion in subsection 501CA(4), the Tribunal is bound by section 499 to comply with any directions made by the Minister under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction) applies.[19]
[19] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains principles that must guide a decision-maker’s application of Part 2 of the Direction:
(a) Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1)).
(b) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2)).
(c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engage 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 (paragraph 5.2(3)).
(d) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding 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(paragraph 5.2(4).
(e) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5)).
(f) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citi’en's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[20]
[20] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account, where relevant. They are:
(a) legal consequences of the decision;
(b) extent of impediments if removed
(c) impact on victims; and
(d) impact on Australian business interests.
I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.
Paragraph 7(2) of the Direction provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations. However, it is accepted that other considerations should not necessarily be seen as secondary and, in certain circumstances, it may be that other considerations may outweigh primary considerations.[21]
[21] See also: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23] - [32]. Cf. Minister for Home Affairs v HSKJ (2018) 266 FCR 591, 601 - 602.
If the Tribunal is satisfied that another reason exists to revoke the cancellation decision, it must proceed to do so. There is no second step to the test where the Tribunal considers whether it ought to revoke the cancellation, following a decision that another reason to do so exists.[22]
[22] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
BACKGROUND AND OFFENDING
The Applicant’s offending history in Australia is contained in the table below:[23]
[23] See also Exhibit Tr1, G4, p 43-45 for most recent version of Applicant’s national criminal history report.
Court Conviction Date Offence Outcome Dandenong Childrens Court 11 September 2014 Armed robbery Without conviction
Good Behaviour Bond: $300.002 x Affray Recklessly cause injury Intentionally damage property W/o auth/excuse enter private place Fail to answer bail 23 October 2015 5 x Contravene a conduct condition of bail Without conviction
Probation: 12 months4 x Theft 3 x Commit indictable offence whilst on bail Burglary Attempted theft 2 x W/o auth/excuse enter private place Obtain property by deception Burglary 3 x Robbery Go equipped to steal/cheat Intentionally damage property 22 April 2016 Breach of probation order (re 23 October 2015 sentence) Proven
Youth Suspension Order: 12 months2 x Obtain property by deception Without conviction
Youth Suspension Order: 12 months
2 x Contravene a conduct condition of bail W/o auth/excuse enter private place Possess cannabis 2 x Assault emergency worker on duty Resist emergency worker on duty 4 x Commit indictable offence whilst on bail Act in a disruptive manner in police gaol Refuse or fail to state name and address 2 x resist police officer Theft 10 June 2016 Retention of stolen goods Without conviction
Good behaviour bond: $300.00Commit indictable offence whilst on bail Possess cannabis 21 October 2016 Intentionally destroy property Without conviction
Probation: 9 monthsW/o auth/excuse enter private place Make threat to kill assault emergency worker on duty Resist emergency worker on duty Intentionally damage property 5 May 2017 Resist police officer Without conviction
Good behaviour bond: $100.00Behave in offensive manner in public place Possess cannabis 11 August 2017 Drunk and disorderly in public place Without conviction
Good behaviour bond: $500.00Resist police officer Contravene police direction to move on Minor falsely represent to be 18yrs/over Act in abusive manner in police gaol Dandenong Magistrates Court 10 April 2018 Intentionally damage property Without conviction 25 March 2019 Possess methylamphetamine Without conviction Commit indictable offence whilst on bail W/o auth/excuse enter private place 3 x Contravene a conduct condition on bail State false name when requested Melbourne County Court 23 September 2019 Negligently cause serious injury Youth justice centre: 3 years
Disqualified from obtaining licence/permit: 24 monthsDandenong Magistrates Court 31 March 2020 Theft-from shop (shop steal) With conviction, adjourned to 18/08/2020 Kyneton Magistrates Court 20 June 2022 Affray 6 months imprisonment
Under cross-examination, the Applicant accepted the accuracy of the criminal history data set out in the foregoing table.[24]
[24] Transcript, p 16, lines 31-45, p 17, lines 1-10.
Before addressing the Applicant’s conduct as it relates to the Primary Considerations, I will deal with the question as to which parts of the Applicant’s criminal career may be lawfully taken into account, in light of the High Court decision in Minister for Immigration, Citizenship and Multicultural Affairs and Thornton.[25] Thornton dealt with circumstances in which a person has been sentenced as a juvenile in Queensland. The Minister contends that the High Court decision in Thornton, in considering subsection 501CA(4) of the Act, determined that the decision-maker could not consider the person’s finding of guilt as a child for which no conviction was recorded, by the operation of subsection 85ZR(2) of the Crimes Act 1914 (Cth). According to the Minister, the plurality of the Court held that subsection 85ZR(2) of the Crimes Act was engaged by section 1842 of the Youth Justice Act 1992 (Qld), as a law of a State under which a person is taken to have never been convicted of an offence.[26]
[25] [2023] HCA 17.
[26] Exhibit R1, p 6, para 27.
The Minister contends that the present circumstances are distinguishable because the Applicant has been convicted in Victoria, and not under the Queensland regime. The Minister drew my attention to the decision in DGKW & Minister for Immigration, Citizenship and Multicultural Affairs[27], that supports the proposition that Thornton is distinguishable on the basis that the relevant offending occurred in Victoria[28] (in Victoria, there is no similar provision to the Youth Justice Act in Queensland).[29] In the alternative, the Minister submits that should the Tribunal decide to proceed on the basis that Thornton applies to this Applicant’s juvenile offending, the Minister says that Thornton only prohibits reliance upon convictions. The judgment should not be viewed as preventing the Tribunal from considering the underlying conduct giving rise to the juvenile offending, in considering the Applicant’s overall conduct for the purpose of paragraph 8.1.1 of the Direction. On this basis, regardless of its view on the application or otherwise of Thornton, the Minister says that the Tribunal ought to be satisfied that the Applicant has engaged in anti-social behaviour, as a youth, and it is open to the Tribunal to take this fact into account.[30] I have proceeded on the basis as in DGKW, that I can and should take the Applicant’s juvenile offending into account for the purpose of this review application.
[27] [2022] AATA 3229, at [27].
[28] Exhibit R1, p 6, para 28.
[29] Transcript, p 13, lines 26-27. See also DGKW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3229 (5 October 2022) [26], [27].
[30] Exhibit R1, p 7, para 29.
I have already set out the Applicant’s offending history and do not propose to recite it here. It suffices to say that it includes:
(a)Violent offences;
(b)Driving offences;
(c)Property, break and dishonesty offences;
(d)Drug-related offences;
(e)Breach orders or directions; and
(f)Offences against government officials in the course of their duties.
The Minister says that the Applicant’s criminal history:[31]
“Discloses a pattern of, critically, dangerous offending … including, but not limited to, violent offending. The dangerous offending engaged in by the Applicant includes, for example, armed robberies, assaults, including assaults of police officers, negligent driving under the influence and damage to property.”[32]
…
In addition to the dangerous offending, the Applicant’s criminal history discloses, amongst other things, offending involving breaches of bail and probation orders, trespass, burglary, dishonesty, theft, and drug possession. He’s committed offences involving the resisting of police officers, running from police officers and stating false names; that is, lying about his identity to police.
…
While a portion of the Applicant’s offending occurred while he was below the age of – the age of 18, the Applicant has committed, arguably, his most serious offences as an adult, and that includes the negligent driving offence and – that is the offence that caused the cancellation of his visa – and the assault that he committed in custody.
[31] Transcript, p 120, lines 28-33 and 40-45; p 121, lines 1-5.
[32] Transcript, p 120, lines 28-32.
In relation to the most recent offending involving Affray, on 20 June 2022, the Applicant was sentenced to a term of imprisonment of six months, that being on top of a three-year term of imprisonment imposed for a negligent driving offence (see below). The Applicant committed the Affray offending on 10 August 2021, whilst he was incarcerated for the negligent driving offence. In the Magistrates Court of Victoria, the Applicant’s representative summarised the offending as follows:[33]
MR MANNES: … The accused [the Applicant], who’s an inmate at the Malmsbury Youth Justice Centre, a 21 year old at the time of the offence, the co-accused and victim are also inmates. About 1.30 pm on Tuesday, 10 August 2021 the accused enters the common TV room where the victim is seated with a Youth Justice worker, being [Redacted, name of worker], on a couch. The accused walks up to and stands in front of the victim and slaps him with an open hand to the head. The victim covers up immediately but the accused starts to punch the victim. The accused punches the victim approximately 21 or 22 times to the head until the victim falls to the floor. Once the victim is on the floor the accused stomps on his head twice and punches him again. Youth Justice worker [names redacted] attempt to intervene, where the accused shrugs off the workers and tells – tells her to “get the fuck off me” in an aggressive manner. The accused continues to assault by punching the victim another four times to the head and then kicks him once, stomps twice to all the head area. At this point the victim tried to get to his feet while covering his head but he was only able to get to his knees. The accused then knees the victim to – to the ribs which causes him to fall on to his back. The victim then pleads with the accused. While he did that the – the accused kicks him to the face. The accused is then held back by another inmate while the victim is assisted to a separate area by Youth Justice worker [name redacted]. The assault occurs in the presence of three unknown inmates and four Youth Justice workers. There was an interview about this incident and summonsed to appear at – at this court. It was captured on footage.
…
There is a co-offender, [Redacted, name of co-offender], so there’s a co-accused in the matter who’s also an inmate, a 20 year old at the time. The victim – so this co-accused walked up behind the victim and watches this accused – I’m sorry – watches the accused begin to assault him. The victim begins to attempt to protect him from being hit to the head by [the Applicant] which includes lying on his – lying on his side to cover his head. At this point the accused uses a pen in a stabbing motion three times to the victim’s ribs and back. The co-accused proceeds to walk to the side of the couch and kicks the victim four times while the – the accused continues the assault. The co-accused hides the pen under the couch and assault – and the assault is over shortly after. The co-accused was not interviewed about this incident. There was a co-offender [Redacted, name of co-offender], who’s also an inmate at the time, a 19 year old at the time of the offence. There’s a co accused, and the affray victim, [Redacted], and also inmates. The victim of this incIdent is a – a Youth Justice worker, [Name Redacted]. The accused enters the common – so this – so that co-accused [Redacted, name of co-offender], he enters the common TV room when he followed after another co-accused. The co-accused assaults [Redacted, victim] where Youth Justice worker [Redacted, victim] attempts to intervene to stop the assault. The co-accused steps in between the couch and the victim and takes hold of the victim’s right arm behind his back to prevent him being able to intervene. The victim tries to move around the couch where the accused puts his arm out to stop him from moving forward. The accused momentarily holds the victim against the wall so that – that the co-accused could continue to assault [Redacted, the victim].
The victim was able to reach out and take hold of the co-accused’s arm and then accused grabs the victim around the ribs and pulls him back so he can’t intervene. The co-accused stands in front of the victim so he can’t move forward to assist. [Redacted, third party] is able to start to crawl towards the door where the victim opens it for him. The accused tries to get [Redacted, the victim] to stay in the room by reaching out past the victim and is seen smiling and laughing at [Redacted, the victim]. He’s not interviewed about this incident. That’s the summary of the matters.
HER HONOUR: Is that a fair summary?
MS FRASER: Yes, your Honour.
HER HONOUR: Thank you. I find the charge proven.
[33] Exhibit Tr1, G7, p 56, lines 23-37; p 57, lines 1-36.
In accepting the Applicant’s guilty plea, the Magistrate identified the Applicant’s previous history of assaults:[34]
HER HONOUR: There are previous assaults in your history. Your history’s quite long in the Children’s Court, and there are assaults during that time. Assaults in custody, in my view, the court must send out a very strong message not only to you but to others in custody that if you are going to assault other inmates and – and workers in custody then a very serious consequence ought to follow. Whilst I take into account many of the things that have been said for you, and in – and I’ve got the report dated 2018 – I do take into account all of those factors and I note there was 47 days that you served that you didn’t get any credit for, but still taking all of that into account, in my view, an appropriate term of six months’ imprisonment is suitable and is appropriate in all the circumstances. But for your plea of guilty today I would have otherwise imposed nine months imprisonment. So you’re convicted and sentenced in regards to the affray. It’s a very nasty offence. It was a very, very nasty assault, in my view, with others whilst you were in custody, and a very strong message needs to be sent today. So you’re convicted and sentenced to six months’ imprisonment today. Thank you.
[34] Exhibit Tr1, p 62, lines 11-26.
In submissions, the Minister put to me that I should view this offending as very serious:[35]
MEMBER: And what is the ultimate submission in relation to that particular incident from the minister’s perspective? What do I take out of it? What do you say I take – should take out of it?
MR FREEBURN: There are a few things. Well, the fundamental point is that it’s a very serious offence that represents a continuation.
MEMBER: Okay.
MR FREEBURN: … of dangerous offending that’s been committed by the applicant for a better part of a decade. The second point is, this offence – and the applicant made this admission in evidence – this offence didn’t involve alcohol or drugs.
MEMBER: I see.
MR FREEBURN: But I’ll deal with that point when I turn to risk, but that’s something that I wish to emphasise at this point is that, unlike the driving offence where drugs and alcohol were involved, this offence didn’t involve substance abuse, and that says something about the reasons for offending and the applicant’s character, ultimately.
MEMBER: Would you also say that it speaks to the – to an increasing seriousness? The absence of a drugs and alcohol thing is it might inhibit someone – or reduce their inhibition, I should say, to violence. Are you saying that the absence of substance abuse being a – being an element in the offending increases the seriousness, increases the – we take from it an, you know, increased seriousness? Is that it?
MR FREEBURN: Yes, I would say that.
[35] Transcript, p 129, lines 1-30.
On 23 September 2019, the Applicant was convicted of Negligently cause serious injury in the County Court of Victoria. The sentencing remarks identify that the Applicant committed this offence when he was driving under the influence of drugs and alcohol at a very high speed and was involved in a “catastrophic vehicle collision”, during which his cousin (who was a passenger) suffered a catastrophic brain injury.[36]
[36] Exhibit R1, p 8, para 33; Exhibit Tr1, G8, p 65, para 2,4; p 72, para 46.
The Sentencing Judge also described the offending as “very serious”:[37]
[37] Exhibit Tr1, G8, p 72, para 46.
HIS HONOUR: [The Applicant], would you stand up. You have pleaded guilty to the charge of negligently causing serious injury to your cousin and best friend, [victim, name redacted], on 25 November 2018.
The charge arises out of the injuries caused in a catastrophic motor vehicle collision, which occurred when you were driving a vehicle on a ’earner's permit at very high speed, affected by drugs and alcohol.
OFFENDER [the Applicant’: That's correct.
HIS HONOUR: Your cousin was in the passenger seat. He did not have his seatbelt on. He has been in hospital ever since. He suffered what can only be described as a catastrophic brain injury and numerous other injuries to his body.
The prognosis in relation to those injuries is dire. The most recent prognosis in a report received by the court in recent weeks, dated 26 August 2019, makes it clear that, by reason of the severe acquired brain injury and the impact on his capacity to operate physically and independently, he will be in a wheelchair and dependent on significant assistance from others, probably for the rest of his life. You know that because you visit him regularly.[38]
…
I have given this matter very careful consideration over the weeks since I last saw you, and again this morning. I have revisited the reports and further submissions from your counsel, Mr Newton.
There are numerous compelling circumstances which dictate that, notwithstanding the seriousness of the offence and the seriousness of your conduct and the strong need for significant weight to be given to the sentencing objectives of general deterrence, denunciation and punishment, that I have determined that the appropriate disposition is the one recommended in the report of [Redacted] from the Department of Justice and Community Safety, Youth Justice. I therefore propose to sentence you to be detained in a Youth Justice Centre for a period of three years.
OFFENDER: Three years?
HIS HONOUR: I am confident that you will conduct yourself well in the youth justice environment, that your behaviour will be excellent.
OFFENDER’ There's no (indistinct). Immigration will take over after that.
HIS HONOUR: Your behaviour will be excellent. You will accept the ongoing support offered by [Redacted], who has been supporting you now for four years. You will then be eligible for parole at a very early stage.[39]
[38] Exhibit Tr1, G8, p 65, para 1-5.
[39] Exhibit Tr1, G8, p 66, para 9-13.
On 11 August 2017, the Applicant was sentenced in the Dandenong Childrens Court in relation to the following offences: Drunk and disorderly in a public place, Resist police officer, Contravene police direction move on, Minor falsely represented to be 18 yr/over and Act in an abusive manner in police gaol. The Applicant was released upon entering into a Good Behaviour Bond.[40] The Applicant’s conduct involved him using someone else’s driver’s licence, and following this, acting aggressively towards police whilst in their custody. The Applicant’s conduct is described more fulsomely in the police report addressing the incident:[41]
THE OFFENDER HAS USED A VICTORIAN DRIVERS LICENCE BELONGING TO ANOTHER TO GAIN ENTRY TO THE BAY HOTEL, MAIN STREET, MORNINGTON. THE OFFENDER WAS SUBSEQUENTLY EJECTED FROM THE VENUE AND BECAME QUARRELSOME WITH SECURITY STAFF. THE OFFENDER REFUSED TO LEAVE THE VICINITY OF THE VENUE WHEN ASKED TO DO SO BY SECURITY. SMT251 S/T OFFENDER AND GAVE HIM A DIRECTION TO MOVE ON. A SHORT TIME LATER SECURITY CONTACTED POLICE AND ADVISED THAT THE OFFENDER WAS STILL ATTEMPTING TO GAIN ENTRY TO THE VENUE. SMT317 ATTENDED AT THE VENUE AND THE OFFENDER WAS ARRESTED FOR BEING DRUNK AND DISORDERLY.
THE OFFENDER WAS HANDCUFFED AND WALKED TO THE DIVISIONAL VAN. ONCE AT THE VAN THE OFFENDER REFUSED TO GET INTO THE VAN. THE OFFENDER USED HIS FEET AND LEGS TO PREVENT SENIOR CONSTABLES [REDACTED] AND [REDACTED] FROM PUTTING HIM IN THE VAN .
S/C [REDACTED] USED 4 TO 5 STRIKES (PUNCHES) TO THE OFFENDERS KNEE IN ORDER TO GET HIM PARTIALLY IN THE VAN. THE OFFENDER STILL STRUGGLED AND RESISTED GETTING INTO THE VAN. EVENTUALLY THE OFFENDER WAS OVER POWERED AND S/C [REDACTED] WAS ABLE TO LOCK THE VAN DOOR . THE MALE WAS CONVEYED TO SMT900 WHERE HE WAS ARGUMENTATIVE, QUARRELSOME AND UNCO-OPERATIVE. FORCE WAS USED TO REMOVE THE HOODED SWEATSHIRT FROM THE ACCUSED AS IT HAD A DRAW STRING ATTACHED.
THE OFFENDER THEN PROCEEDED TO REMOVE HIS UNDERSHIRT WHILST IN THE POLICE CELLS. POLICE MEMBERS ENTERED THE CELL TO REMOVE THE UNDERSHIRT. THE MALE STOOD UP AND MOVED FORWARD TOWARDS S/C RULE IN AN AGGRESSIVE MANNER. S/C RULE PUSHED THE OFFENDER AWAY TO GAIN DISTANCE AND IN DOING SO THE OFFENDER HAS PUSHED/SLAB SENIOR CONSTAB’E [REDACTED]’S ARM AWAY. THE OFFENDER WAS RELEASED ON BAIL.
[40] Exhibit R2, Exhibit Tr1, G4, p 44.
[41] Exhibit Tr2, TB3, p 253-254.
On 5 May 2017, the Applicant was sentenced in the Dandenong Childrens Court in relation to the following offences: Resist police officer, Behave in offensive manner in public place and Possess cannabis.[42] The Applicant was released on a Good Behaviour Bond. The Applicant’s conduct involved him swearing and abusing police. The conduct is particularised in the relevant police report:[43]
ON SATURDAY THE 15TH OF APRIL 2017 [THE APPLICANT] WAS LOCATED IN MENZIES AVE, SDG NTH AFTER POLICE SHUT DOWN AN OUT OF CONTROL PARTY AT THE MENZIES AVE HALL. [THE APPLICANT] WAS ISSUED A DIRECTION TO MOVE ON BUT REFUSED TO DO SO AND STARTED TO SWEAR AT POLICE FROM ACROSS THE STREET.
WHEN POLICE APPROACHED [THE APPLICANT] FOR HIS ID HE RAN AT SPEED DOWN MENZIES AVE AND BEGAN JUMPING FENCES IN RESIDENTIAL PROPERTIES. F/C [REDACTED] LOCATED [THE APPLICANT] HIDING UNDER A CAR IN THE REAR YARD OF … [THE APPLICANT] WAS SEARCHED AND A QUANTITY OF DEAL BAGS CONTAINING CANNABIS WAS LOCATED ON HIS PERSON. [THE APPLICANT] ARRESTED AND CONVEYED TO SDG900 FOR INTERVIEW WITH PARENTS PRESENT. CHARGED & BAILED TO DANDENONG CHILDRENS' COURT 5/5/17.
[42] Exhibit R2; Exhibit Tr1, G4, P 44.
[43] Exhibit Tr2, TB3, p 255.
On 21 October 2016, the Applicant pled guilty and was sentenced in the Dandenong Childrens Court in relation to the following offences: Intentionally destroy property, W/o auth/excuse enter private place, Make threat to kill assault emergency worker on duty, Resist emergency worker on duty, and Intentionally damage property.[44] The Applicant was sentenced to a term of probation for nine months for these offences. The conduct that gave rise to these offences being committed included the Applicant threatening to kill two police officers.[45] The police report addressing the incident explains the Applicant’s conduct as follows:[46]
ON SATURDAY THE 18TH OF JUNE 2016 AT BETWEEN APPROXIMATELY 2 : 00AM AND 3:30AM, THE’VICTIM'S PREMISES WAS VACANT AND EMPTY READY FOR SALE. DURING THIS TIME, OFFENDER … OF … HAS ATTEMPTED TO GAIN ENTRY TO SAME BY FORCING THE FRONT DOOR AND BACK DOOR TO ENTRY THE PREMISES. OBVIOUS DAMAGE CAUSED TO BOTH DOORS.
UNABLE TO GAIN ENTRY TO THE PREMISES, [THE APPLICANT] HAS USE UNKNOWN MEANS TO SMASHED [sic] THROUGH A REAR BEDROOM WINDOW AND USED SAME TO GAIN ENTRY TO THE PREMISES. WHILST INSIDE IT APPEARS [THE APPLICANT] AND OTHER UNKNOWN ACQUANTINCES HAVE ENJOY PIZZA, ALCOHOL AND SMOKING CANNABIS BY HOME MADE BONG.
REPORTING PERSON HAS CONTACT 000 TO STATE THAT SHE OBSERVED UP TO 3 MALES INSIDE THE PREMISES AT APPROXIMATELY 2-2:30AM. SEN309 ARRIVED AND OBSERVED THE DAMAGE TO THE DOORS AND WINDOWS. SCN311 ATTENDED TO ASSIST SEN309 WITH SEARCH OF PREMISES, WHERE [THE APPLICANT] WAS LOCATED AND ARRESTED. [THE APPLICANT] STATED THAT HE WAS THE ONLY ONE THERE ALL NIGHT AND ALL THE PIZZA AND EMPTY ALCOHOL BOTTLES BELONGED TO HIM. SCN311 REMAINED TO OBTAIN ANY FURTHER DETAILS FROM THE REPORTING PERSON AND TO TAKE PHOTOGRAPHS OF THE DAMAGE CAUSED.
SEN309 CONVEYED [THE APPLICANT] TO SNW900 FOR PROCESSING. [THE APPLICANT] WAS RELEASED PENDING SUMMONS WITHOUT INTERVIEW DUE TO BECOMING AGGRESSIVE AND VIOLENT IN THE INTERVIEW ROOMS AT THE SNW900. [THE APPLICANT] MADE A THREAT TO KILL ACTING SERGEANT [REDACTED] THAT WAS WITNESSED BY FIRST CONSTABLE [REDACTED].
[THE APPLICANT] ON BEING RELEASED HAS KICKED THE INTERNAL ACCESS DOOR TO THE STATION, CAUSING DAMAGE TO THE DOOR JAM. [THE APPLICANT] MADE ANOTHER THREAT TO KILL ACTING SERGEANT [REDACTED] THAT WAS WITNESSED BY FIRST CONSTABLE [REDACTED], SENIOR CONSTABLE [REDACTED] AND CONSTABLE [REDACTED].
[44] Exhibit R1, p 8, para 35; Exhibit Tr1, G4, p 44; Exhibit Tr2, TB3, p 256.
[45] Exhibit R1, p 8, para 35.
[46] Exhibit Tr2, TB3, p 256-257.
On 10 June 2016, the Applicant was sentenced in the Dandenong Childrens Court in relation to the following offences: Retention of stolen goods, Commit indictable offence whilst on bail and Possess cannabis. The Applicant was released on a Good Behaviour Bond.[47] The police report addressing the incident describes the Applicant’s conduct as follows:[48]
AT ABOVE TIME AND DATE … HAS BEEN DROPPED OFF NEAR THE ABOVE LOCATION BY TAXI AFTER ATTENDING LICENCED VENUE IN PORT MELBOURNE. THE TAXI HAS DROPPED HIM NEAR VICINITY OF LOCATION AND HE HAS PROCEEDED TO WALK HOME, AT THE INTERSECTION OF ORRONG AND LALBERT CR, WAS APPROACHED BY 3-4 MALES WHILE WALKING ALONG THE FOOTPATH. THEY HAVE MADE A COMMENT TOWARDS HIM BUT THIS WAS NOT HEARD AND THE VICTIM CANNOT REMEMBER THE EXACT WORDS.
1 MALE HAS COME FROM BEHIND HIM AND PUSHED TO THE GROUND. ONCE ON THE GROUND ALL THE MALES HAVE PROCEEDED TO PUNCH/KICK AND ASSAULT HIM ON THE NEARBY NATURE STRIP. WHILE BEING ASSAULTED THE OFFENDERS HAVE REMOVED THE FOLLOWING ITEMS FROM THE VICTIM …
APPLE IPHONE 6
TAG HEUER WATCH (SILVER WITH BLUE FACE)
WALLET CONTAINING $100 CASH CBA DEBIT CARD
OFFENDERS HAVE DECAMPED IN U/K DIRECTIECIEVED A LACERATION TO HIS RIGHT INDEX FINGER AND BLEEDING BRUISING TO HIS FACE AND TORSO. HAS CALLED POLICE HAS WALKED TO 7-11 AND ATTENDANT INVESTIGATORS HAVE ATTENDED THE 7 ELEVEN AND SPOKEN TO AND OBSERVED HIS INJURIES. INVESTIGATORS HAVE LOCATED A TRAIL OF BLOOD DROPLETS, HEADING IN A SOUTHERLY DIRECTION SEVERAL HUNDRED METRES TO THE INTERSECTION OF ORRONG ROAD AND LALBERT CRESCENT.
AT THAT INTERSECTION, INVESTIGATORS HAVE LOCATED A PATCH OF NATURE STRIP (ON THE NORTH WESTERN CORNER OF THE INTERSECTION) WITH VISIBLE SIGNS OF A STRUGGLE. HAS INFORMED POLICE THAT HIS STOLEN MOBILE PHONE HAS AN APPLICATION INSTALLED NAMED -FIND MY IPHONE-, WHICH ALLOWS HIM TO REMOTELY ACCESS THE LOCATION OF HIS MOBILE PHONE AT ANY GIVEN TIME.
INVESTIGATORS HAVE UTILISED -FIND MY IPHONE- AND ESTABLISHED THAT PHONE WAS TURNED ON BRIEFLY AT 2 : 25 AM. THE LOCATION PROVIDED WAS IN THE VICINITY OF THE REAR OF THE MOBILE PHONE WAS TURNED ON FOR APPROXIMATELY 2 MINUTES BEFORE BEING SWITCHED OFF AGAIN. HAD A PASSWORD LOCK ON THE PHONE AND THE OFFENDERS WOULD NOT HAVE BEEN ABLE TO ACCESS THE CONTENTS OF IT.
[47] Exhibit R2; Exhibit Tr1, G4, p 44.
[48] Exhibit Tr2, TB3, p 268.
On 22 April 2016, the Applicant pled guilty and was sentenced in the Dandenong Childrens Court in relation to these offences: Obtain property by deception (two charges), Contravene a conduct condition of bail (two charges), W/o auth/excuse enter private place, Possess cannabis, Assault emergency worker on duty (two charges), Resist emergency worker on duty, Commit indictable offence whilst on bail (four charges), Act in a disruptive manner in police gaol, Refuse or fail to state name and address, Resist police officer (two charges) and Theft.[49] The Applicant was released on a 12 month Youth Suspension Order. The conduct that gave rise to these offences being committed included the Applicant saying “fuck off dogs, you cunts clean it up” and “fuck off cunts, I’ll spit on you”, after the Applicant was told to pick up rubbish whilst in custody at the Dandenong police station.[50] The Applicant also violently resisted being arrested and kicked a police officer in the stomach.[51] The police reports addressing these incidents explain the Applicant’s conduct as follows:[52]
[49] Exhibit R1, p 8, para 36.
[50] Exhibit R1, p 8-9, para 36.
[51] Exhibit R1, p 9, para 36.
[52] Exhibit Tr2, TB3, p 267, 271-272.
ON 29/01/16, THE ACCUSED WAS IN CUSTODY AT THE DANDENONG POLICE STATION CELLS, LISTED AT DANDENONG MAGISTRATES COURT THAT DAY AT APPROX 2:45PM, THE ACCUSED AND OTHER PRISONERS WERE BEING DISRUPTIVE, [THE APPLICANT] SMEARED VEGEMITE AND BUTTER OVER THE WINDOWS AND POURED CORDIAL
AND ORANGE JUICE OVER THE FLOOR. THIS IS CAPTURED ON CCTV, CONSTABLE [NAME REDACTED] THEN ASKED [THE APPLICANT] TO PICK UP THE RUBBISH. [THE APPLICANT] REFUSED, WAS ALSO IN CELL AND WAS ABUSIVE TO “OLICE, SAYING "FUCK OFF DOGS, YOU CU”TS CLEAN IT UP". THE ACCUSED CONTINUED TO ABUSE POLICE. SERGEANT [REDACTED] AND CONSTABLE [REDACTED] ENTERED THE CELL AND REQUESTED
[THE APPLICANT] AND … PICK UP THE RUBBISH. BOTH REFUSED. TURNED
TO FACE SERGEANT [REDA‘TED] AND SAID 'FU’K OFF CUNTS, I”LL SPIT ON YOU". SERGEANT [REDACTED] RESTRAINED THE ACCUSED TO PREVENT ANY SPITTING. THE ACCUSED APOLOGISED AND REMAINED ON THE FLOOR WHILE POLICE PICKED UP THE RUBBISH. NIL INJURIES TO … OR ANY MEMBERS. SERGEANT [REDACTED] SUBMITTED USE OF FORCE. BOTH CHARGED WITH ACT DISRUPTIVE IN A POLICE GAOL.
…
THE ACCUSED IS [THE APPLICANT] … ON THE 17TH OF OCTOBER 2015 AT APPROXIMATELY 11:41 PM, POLICE CABOOL MEMBERS WERE GIVEN A JOB VIA POLICE COMMUNICATIONS TO ATTEND SWANSTON STREET AND FLINDERS STREET MELBOURNE, FOR A BRAWL WITH APPROXIMATELY 20 TO 30 MALES. [THE APPLICANT] WAS SPOKEN TO BY POLICE MEMBERS WHERE HE WAS ASKED TO PRODUCE HIS IDENTIFICATION (ID) UNDER 456AA BY SGT [REDACTED] CABOOL. AFTER BEING IDENTIFIED TO POLICE AS BEING INVOLVED IN AN ASSAULT, [THE APPLICANT] REFUSED TO STATE HIS NAME AND ADDRESS TO SGT [REDACTED] OR GIVE ANY ID AND WAS SUBSEQUENTLY ADVISED THAT HE WAS UNDER ARREST UNDER BY SGT [REDACTED] AND WOULD BE TAKEN BACK TO THE POLICE STATION TO CONFIRM HIS IDENTIFICATION. [THE APPLICANT] RESISTED BEING ARRESTED BY ATTEMPTING TO LOCK HIS HANDS TOGETHER ARID STRUGGLING AGAINST POLICE.
THE ACCUSED HAS THEN KICKED BACKWARDS AND STRUCK CONSTABLE [REDACTED] IN THE STOMACH AS SHE WAS ATTEMPTING TO HANDCUFF HIM, [THE APPLICANT] CONTINUED RESISTING ARREST AND HAD TO BE RESTRAINED BY 5 POLICE MEMBERS ON THE GROUND AA BE WAS BEHAVING VIOLENTLY BY TRYING TO THRASH HIS ARMS AND LEGS AROUND. [THE APPLICANT] RECEIVED A SMALL GRAZE TO RIGHT SIDE OF FOREHEAD DURING STRUGGLE. [THE APPLICANT] WAS THEN ADVISED THAT HE WAS ALSO UNDER ARREST FOR ASSAULT POLICE BY SIC [REDACTED] (INFORMANT). [THE APPLICANT] THEN GAVE HIS NAME AS … OF … WHICH WAS FALSE TO S/C [REDACTED]. [THE APPLICANT] WAS INFORMED THAT AS HE DIDN’T HAVE ANY ID ON HIM IT WAS NECESSARY TO CONFIRM EXACTLY WHO HE WAS BY TAKING HIM TO A POLICE STATION, [THE APPLICANT] WAS CONVEYED TO MELBOURNE WEST POLICE STATION TO CONFIRM IDENTITY.
HE CONTINUED TO MAINTAIN THAT HIS NAME WAS … VARIOUS ATTEMPTS WERE MADE TO CORROBORATE THE FALSE DETAILS GIVEN BY THE ACCUSED INITIALLY DUE TO AN UNLINKED MNI ON LEAP UNDER THE FALSE NAME INCLUDING SEND A POLICE UNIT TO THE FALSE ADDRESS. FURTHER INTERROGATION OF LEAP CONFIRMED HIS ACTUAL ID AS [THE APPLICANT]. AT APPROXIMATELY 1 :55AM, 18/10/15 [THE APPLICANT] WAS ABOUT TO BE FINGERPRINTED VIA LIVESCAN TO CONFIRM HIS ID WHEN HIS ACTUAL NAME WAS PUT TO HIM, HE ADMITTED TO GIVING FALSE DETAILS REGARDING HIS NAME AND ADDRESS. WHEN HE WAS INFORMED HE WAS BEING PUT BACK IN THE HOLDING CELL HE REFUSED TO ACCOMPANY POLICE AND LOCKED HIS HAND TOGETHER AND STIFFENED HIS BODY. POLICE HAD TO USE PHYSICAL FORCE TO MOVE HIM BACK TO HIS CELL BY CARRYING HIM, [THE APPLICANT] HAS KIEKED [sic] OUT BOTH LEGS AGAINST A DOOR FRAME IN AN ATTEMPT TO PREVENT POLICE MOVING HIM.
ON RETURNING [THE APPLICANT] TO HIS CELL HE HAS GRABBED A LANYARD FROM AROUND SGT [REDACTED]’S NECK CAUSING IT TO BREAK AND A SMALL CUT ON [THE APPLICANT’S] LEFT HAND. AGAIN PHYSICAL FORCE WAS REQUIRED TO KEEP [THE APPLICANT] IN THE CELL WHILE POLICE CAME OUT. [THE APPLICANT] WAS PHYSICALLY AND VERBALLY AGGRESSIVE DURING THIS TIME. [THE APPLICANT] WAS TRANSPORTED TO YHIS [sic] HOME ADDRESS AFTER POLICE LIAISED WITH … AND … VIA PHONE. ENDEAVOUR HILLS 251 SGT [REDACTED] … MET POLCIE [sic] AT [THE APPLICANT’S] HOME ADDRESS AND BAILED [THE APPLICANT] IN THE PRESENCE OF …
On 23 October 2015,[53] the Applicant was sentenced in the Dandenong Childrens Court in relation to: Contravene a conduct condition of bail (5 charges), Theft (4 charges), Commit indictable offence whilst on bail (3 charges), Burglary, Attempted theft, W/o auth/excuse enter private place (2 charges), Obtain property by deception, Burglary, Robbery (3 charges), Go equipped to steal/cheat and Intentionally damage property. The Applicant was placed on probation for a period of 12 months. The Applicant’s offending against the male victim can best be characterised as an extremely violent and coordinated attack, where he and some four accomplices ambushed the victim and stole his backpack, keys and speaker. The offending against the female victim involved ambushing the victim and attempting to assault her and steal her handbag. The Applicant’s conduct with respect to these offences was summarised in the relevant police report:[54]
ON THE 11TH OF MAY 2015 AT APPROXIMATELY 1830HRS VICTIM WAS WALKING ALONG AVRIL STREET SCORESBY TOWARDS BORG CRESCENT WHEN TWO SUDANESE MALES RAN UP FROM BEHIND HIM AND PUT HIM IN A HEAD LOCK AND PUSHED HIM ONTO THE ROAD. A SILVER VEHICLE THEN DROVE BY AND HIT HIM IN THE SHOULDER MAKING HIM FALL TO THE GROUND.
5 SUDANESE MALES THEN GOT OUT OF THE VEHICLE AND STARTING PUNCHING … THEY STOLE HIS BACKPACK CONTAINING A LITTLE SPEAKER, KEYS AND MONEY. THE MALES STARTED ASKING’FOR THE VICTIM'S JACKET, THEN ONE OF THE MALES SAID NOT TO WORRY ABOUT THE JACKET AND THEY STOMPED ON HIS HEAD SEVERAL TIMES. THE MALES THEN RAN AWAY.
A SHORT TIME LATER VICTIM HEARD A FEMALE SCREAMING FROM DOWN THE STREET. POLICE WERE CALLED IN RELATION TO A FEMALE GETTING HER HAND BAG STOLEN. 2ND VICTIM ADDRESS WAS WALKING TO HER HOME WHEN TWO SUDANESE MALES CAME UP BEHIND HER AND ASKED HER TO HELP THEIR FRIEND. REALISED THE MALES WERE UP TO NO GOOD AND STARTED TO RUN HOME. THE 2 X MALES FOLLOWED HER AND DEMANDED HE’ HANDBAG, DIDN'T GIVE IT AT FIRST. THE MALE THEN TRIED TO KICK WHICH MADE HER LET GO OF HER BAG, THE 2 X MALES THEN LEFT GOT INTO A SILVER VEHICLE WHICH COMES UP TO AN OUTSTANDING STOLEN VEHICLE AND … RAN H“ME ”ND CALLED "000".
POLICE ARRIVED AT THE SCENE EKX 303 AND EKX251 AND PATROLLED AROUND FOR THE VEHICLE AND THE MALES … ATTENDED THE WATCH HOUSE TO REPORT THE MATTER, ALTHOUGH BEFORE A STATEMENT COULD BE TAKEN HE WAS SENT TO THE HOSPITAL FOR CHECK-UP. HE HAD INJURIES TO HIS HEAD.
… ATTENDED THE KNOX POLICE STATION AND A STATEMENT WAS OBTAINED FROM … SAME. CRIME DESK TOOK PHOTOGRAPHS OF THE INJURIES TO … AND ATTENDED THE SCENE AND TOOK PHOTOGRAPHS OF WHERE THE INCIDENT OCCURRED. EKXCIU NOTIFIED DETECTIVE SENIOR CONSTABLE [REDACTED].
THE MALES WERE DESCRIBED AS SUDANESE, ONE WEARING A BEANIE. BELIEVES THERE WERE 5 IN TOTAL.
[53]; Exhibit Tr1, G4, p 45.
[54] Exhibit Tr2, TB3, 285-286.
On 11 September 2014, the Applicant was sentenced in the Dandenong Childrens Court in relation to Armed robbery, Affray (two charges), Recklessly cause injury, Intentional damage, W/o auth/excuse enter private place and Failure to answer bail. The Applicant was released upon entering into a Good Behaviour Bond. The conduct that gave rise to these offences being committed included the Applicant and four males robbing and assaulting a stranger to obtain his mobile phone. In another incident, the Applicant and another four males punched and kicked three victims outside a Sanity music store.[55] The police reports addressing these incidents explain the Applicant’s conduct as follows:[56]
ON FRIDAY 02/08/13 THE VICTIM, WAS ON THE TRAIN TRAVELLING OUTBOUND. THE VICTIM IS SRI LANKAN WITH VERY LIMITED UNDERSTANDING OF ENGLISH. THE VICTIM OBSERVED A GROUP OF FIVE YOUNG DARK SKINNED MALES SITTING ON THE SAME CARRIAGE. THE VICTIM EXITED THE TRAIN AT HALLAM RAILWAY STATION AND THE MALES FOLLOWED HIM OFF THE TRAIN. ONE OF THE MALES ASKED THE VICTIM FOR THE TIME, THE VICTIM TOOK HIS MOBILE OUT TOLD HIM WHAT THE TIME WAS AND PUT HIS PHONE BACK IN HIS POCKET. THE MALES WALKED SOUTH FROM THE RAILWAY STATION ALONG HALLAM ROAD, WITH THE VICTIM FOLLOWING A DISTANCE BEHIND. THE GROUP OF MALES STOPPED APPROXIMATELY 500M SOUTH OF THE RAILWAY STATION AND ONE MALE BENT DOWN TO TIE HIS SHOELACE. AS THE VICTIM APPROACHED THE GROUP, HE HAS HEARD THE WORD "ATTACK" AND THE MALES HAVE HIT HIM WITH A LARGE BLACK TORCH AND OTHER UNKNOWN WEAPONS, POSSIBLY ROCKS. THE VICTIM HAS RUN ONTO HALLAM ROAD IN AN ATTEMPT TO ESCAPE AND HAS MISPLACED HIS BLACK NOKIA MOBILE
PHONE AND ONE SHOE. THE VICTIM HAS RUN NORTH BACK TOWARDS THE RAILWAY STATION AND THE MALES HAVE FOLLOWED FOR A SHORT PERIOD BEFORE TURNING AROUND AND CONTINUING TO WALK SOUTH ALONG HALLAM ROAD. SNW251 HAS LOCATED VICTIM AT THE HALLAM RWS WITH CUT TO LIP AND RIGHT HAND. FIVE MALES LOCATED AT HAMPTON PARK SHOPS, ARRESTED AND CONVEYED TO SNW900. [REDACTED] CIU IN ATTENDANCE AND ASSISTING. ALL MALES INTERVIEWED AND RELEASED PENDING SUMMONS. AIM FILE TO BE SUBMITTED.
N/R- WERE AT BAYSIDE SHOPPING CENTRE, BEACHSTREET, FRANKSTON. BETWEEN 17:30 AND 17:45 HRS THE 3 VICTIMS WERE WALKING THROUGH SHANNON MALL ARCADE HEADING TOWARDS YOUNG STREET. WHILE WALKING THROUGH THE ARCADE, OUTSIDE THE FRONT OF SANITY MUSIC STORE THE 3 VICTIMS WERE ATTACKED FROM BEHIND BY A GROUP OF 5 SUDANESE MALES. THE 3 VICTIMS WERE PUNCHED AND KICKED SEVERAL TIMES BY THE SUDANESE MALES, ALL THREE VICTIMS GOT SEPARATED AND WERE ABLE TO BREAK FREE RUNNING TO THE FRANKSTON RWS AND REPORTING THE INCIDENT TO THE PSO 800 UNIT. RECEIVED A MINOR INJURY TO HIS FOREHEAD. AND SUFFERED NO PHYSICAL INJURIES. BOTH PARTIES WERE NOT KNOWN TO EACH OTHER AND THE ASSAULT APPEARED UNPROVOKED.
[55] Exhibit R1, p 9, para 37.
[56] Exhibit Tr2, TB3, p 300, 304-305.
Separately, Victoria Police provided advice to the Department of Home Affairs in 2018 that the Applicant was a founding member of the APEX Street Gang:
Victoria Police are aware that [the Applicant] is a visa holder who is being considered for cancellation by the Department of Home Affairs. As part of this consideration, Victoria Police can offer the following:
• [Applicant] is known to Victoria Police;
• [Applicant] has a lengthy criminal history which includes findings of guilt – for serious offences including Armed Robbery, Recklessly Cause Injury, Robbery and Make Threats to Kill;
• [Applicant] has also been found guilty without conviction for offences of Resist Emergency Worker on Duty, Assault Emergency Worker on Duty and Resist Police Officer. These offences are of a violent, anti-social and concerning nature;
• [Applicant] has also been found guilty without conviction for offences of Possess Cannabis and Possess Cocaine;
• Police information indicates [Applicant] is known to use illicit drugs;
• [Applicant] has also been found guilty without conviction for offences of Act in Disruptive Manner in Police Gaol and Refuse or Fail to State Name and Address. These offences are indicative gf [Applicant]'s disregard for Police and Victorian laws;
• Victorian Police information indicates that [Applicant] is known to have links with other persons involved in serious crime, including associates of youth gangs and other street gangs. [Applicant] has offended with other known street gang members /youth offenders;
• Victorian Police information indicates [Applicant] was a founding member of the 'APEX' street gang;
• Victorian Police information indicates [Applicant] has been known to offend in the company of his brother, [redacted], who is a known serious offender;
• [Applicant]'s offending is of significant concern to Victoria Police. His record has demonstrated a consistent disregard for the community and has regularly involved robbery, theft and violence. He has presented as having little to no regard for the law and the community, and has regularly reoffended while on bail. Victoria Police have concerns about his escalating offending and the risk he poses to the community.
Victorian Police provide this information to the Department of Home Affairs for their consideration.[57]
[57] Exhibit Tr1, G11, p 81.
The Applicant’s evidence is that he was “hanging out with the wrong group of friends and getting up to trouble”[58] and “hanging around the wrong crowd.”[59] Under cross-examination, the Applicant categorically denied that he is a member of a gang, including the APEX Street Gang, and says he does not know what the APEX street gang is:
[58] Exhibit A2, p 7, para 29.
[59] Transcript, p 71, lines 17-18.
MR FREEBURN: …WZFX, this document, again, is correspondence from the police, and it records information said to be held by you – about you, rather, by the police. And I wanted to draw your attention to the dot points – two dot points. The first is fourth from the bottom. It says Victorian Police information indicates that you are known to have links with other persons involved in serious crime, including associates of youth gangs and other street gangs. ‘WZFX has offended with other known street gang members/youth offenders.’ Do you see that?
APPLICANT: Yes, I do.
MR FREEBURN: Then the next dot point says, ‘Victorian Police information indicates WZFX was a founding member of the Apex street gang.’ Do you see that?
APPLICANT: Yes. Yes, I do.
MR FREEBURN: What is the Apex street gang?
APPLICANT: To be honest, I cannot tell you on what the Apex street gang is, because I do not know anything about it. Yes, I do – at the time of when I was young in my teenage years, I do accept and take fault that I was hanging around the wrong crowd, but, you know, at the time of them as well as to, you know, you’ll – on the notice – on the consideration of notice of cancellation, you’ll find the forms of where they went onto my social media profile and they printed out photos of my social account. At the time of them, I was riding scooters and I was riding skateboards as well. So for me to be here and take – accept that I was a part of a gang, it would be me telling a lie because I wasn’t part of a gang. I accept that, yes, you know, I was hanging around the wrong crowd, but I was never part of a gang. And even on papers now, I’ve never been charged or been convicted as being a member of – or founding member of a gang at all.
MEMBER: But WZFX, just in relation to that, you said that you don’t know what the Apex gang is?
APPLICANT: No.
MEMBER: That was your evidence?
APPLICANT: Yes.
MEMBER: But throughout this process, you’ve been provided with material that explains what the Apex gang is and – including media reports, comments from other people. Is it still your evidence that you don’t know what the Apex gang is?
APPLICANT: I don’t know what the Apex gang is.
MEMBER: So when you’ve read that material that’s been provided to you throughout this whole process that explains what the Apex gang is from media reports and other sources. Your evidence is you still don’t know what it is?
APPLICANT: I don’t know what it is.
MEMBER: I see?
APPLICANT: Because, to my understanding, I take it as, like, you know, it’s – I take it as, like, I was probably found as a perfect – or just as a perfect description to be, like, ‘Yes, this person was a part of the Apex gang,’ which I was not a part of, you know, the gang at all.
MEMBER: So you categorically deny… that you were a founding member of the Apex gang in Melbourne?
APPLICANT: No, I was not a founding member of the gang at all. I have no knowledge of the gang and …
MEMBER: And not otherwise a member?
APPLICANT: No. Not a member or a founding member at all.
…
MR FREEBURN: So in the material, there’s information about the Apex street gang. Prior to the cancellation of your visa in 2019, did the word ‘Apex’ mean anything to you?
APPLICANT: No. Nothing at all, because I knew, like, when this – because, yes, I knew nothing of it.
MR FREEBURN: Are you suggesting it’s only through this – it’s only when you received this ‑ ‑ ‑?
MR FREEBURN: Sorry, I’ve been imprecise here. Prior to receiving this from the department, this piece of information ‑ ‑ ‑?
APPLICANT: Yes.
MR FREEBURN: in 2018, did the word ‘Apex’ mean anything to you?
APPLICANT: Well, when you say ‘Apex’, it’s a scooter brand. That’s about it.
APPLICANT: As well as there’s Madd Gear Pro, there’s MV, you know, and as well as, you know, there’s sponsorships, you know, from, you know, Apex scooter brand as well as the Madd Gear scooter brand as well as the MV. Other than that, I have no, you know, information or any know abouts of the gang.
MEMBER: So?
APPLICANT: And as well, it says – the word – from my understanding, the word indicate is I think the (indistinct), you know, has involvements in a – in a gang, right? So in that manner of sense, like, I’m telling you right now I’m being honest. Like, I have no involvements in a gang. I was never a founding member of a gang.
MEMBER: But you know what – I mean today – you know what the Apex gang means, don’t you?
APPLICANT: Yes.
MEMBER: You understand what that – when people refer to the Apex street gang in Melbourne, you know what it’s referring to now?
APPLICANT: I’ve just been seeing on the news, yes.
MEMBER: Okay?‑‑‑
APPLICANT: Like, I’ve seen ‑ ‑ ‑
MEMBER: So at what point in time did you become, in your evidence, aware of what the Apex street gang was?
APPLICANT: Well, at the time, to be honest, of when I first got this, I was in shock because I was like, ‘Hold on,’ like, you know, like, ‘How is it or why is it that I’m getting characterised in – as being involvement in a gang when I have no involvement or no knowledge of a gang at all?’
MR FREEBURN: So is your evidence that that assertion by Victorian Police about you being a founding member of the Apex street gang – you’re saying – your evidence is that that’s inaccurate?
APPLICANT: It’s inaccurate because a part of my journey – part of my time being incarcerated in prison is to take, you know, for – responsibility of the wrongs you’ve done. And then for me to sit here and to say, ‘Yes, I was a part of a gang,’ which is, you know, has no – which is completely wrong at all is, like – you know, it’s like in the future of me having kids, you know, and I advise my kid, you know, to be like, ‘Even if you get blamed for something, you know, put your hand up for it.’ That is wrong, you know. That’s an advice you will never give anyone. The information of them saying I was part of a gang, a founding member, as well as to me and my brother being a crime family, that is completely wrong, because, with me and my brother, there’s never been a conviction of me and my brother together. He has never been my, you know, he was never a co-offender of mine or anything like that. As well as the charges, you know, there’s never been charges that’s listing that I was a gang or anything like that.
MR FREEBURN: I understand that. To be very clear, at the time you received this letter in 2018, you did not know what the Apex street gang was? Is that your evidence?
APPLICANT: I had – I had no knowledge of an Apex street gang at all. I had no knowledge of them.
…
MEMBER: You didn’t know what it was?
APPLICANT: I didn’t know what it was.
MR FREEBURN: And you’ve only found out since through media reports?
APPLICANT: Yes.
MR FREEBURN: Is that your evidence?
APPLICANT: M’mm.
MR FREEBURN: Can I take you to a document at TB3 page 294?
APPLICANT: Yes….
MR FREEBURN: This is an incident report by Victoria Police. It records an incident that is said to have occurred on 8 January 2015 involving you and a number of other persons. I’ll give you an opportunity to read that?
APPLICANT: Yes, I’ve read it, yes….
MR FREEBURN: You are described as having gained access to an abandoned building. It says – this is the police – the police say that you located three cans of spray paint and marked each wall several times with the tags ‘Kings’, ‘BCK’, and ‘Apex’. And the document records that you admitted to the criminal damage and that you were subsequently arrested. Do you recall this incident?
APPLICANT: Getting arrested and being in the abandoned building, yes, I recall that.
MR FREEBURN: Do you recall using spray paint?
APPLICANT: No.
MR FREEBURN: - - - to mark the walls?
APPLICANT: No. I do not recall it at all.
MR FREEBURN: You’ll notice that one of the tags that you’re said to have made on the building is ‘Apex’. Do you have anything to say about that?
APPLICANT: I can tell you that, at the time of when we were in that building, you know, there was several of us. So, you know, to what was getting tagged or who was tagging what, you know, I have no – you know, I cannot recall any of them because, you know, you know, we’re all – we’re all separated out. Like, it was a massive building, and when the police came, we all got arrested. So, yes, I do recall that, you know, I was in a building and, like, we broke in and everything like that, but I do not recall, you know, tagging or anything like that.
MR FREEBURN: So is your evidence that it wasn’t you who marked ‘Apex’ on the wall?
APPLCIANT: No.
MR FREEBURN: Did you see the word ‘Apex’ marked on the wall? Do you recall seeing that?
APPLICANT: Not to my knowledge, no.
MR FREEBURN: I suggest to you, WZFX, that it was – you were aware, at least…that one of you had marked ‘Apex’ on the wall during that incident. Do you have anything to say about that?
APPLICANT: Well, as you said that one of us, you know, has marked the ‘Apex’ on the wall, I can definitely tell you that it wasn’t me.
MEMBER: Did you see the person who did it?
APPLICANT: No, I didn’t at all, because ‑
MEMBER: Do you recall seeing it?
APPLICANT: No, because, as I was walking out, you know, I was the first one to get arrested by the police. So, you know, there was no way in hell for me to see on who was writing on the wall at all.
MR FREEBURN: Is it the case, do you maintain, that, at that time, you didn’t know what the Apex street gang was?
APPLICANT: No, I didn’t at all. I was hanging out with the wrong group of crowd and I had no knowledge that they were part of Apex or not.
MR FREEBURN: But did you know what Apex was at that time?
APPLICANT: No, I didn’t, no.
MR FREEBURN: Were any of your friends ‑ ‑ ‑?
APPLICANT: Like, I can only speak for myself, you know, and I understand that, at the time then, I was hanging around with the wrong crowd, and I had no knowledge of them being a part of Apex or not. And to when I got arrested, I was walking out of the building and I was the first to get arrested. So to the tags that was, you know, graphed on the wall, I’m not able to recall on who graphed on the wall or anything like that.
MR FREEBURN: So what tags did you graph on the wall?
APPLICANT: I did – I don’t – you know, to my understanding, I didn’t graph, like, a tag on the wall at all because, like, we broke in and to – from what I remember, we broke in to go have a sesh of cannabis. And so that’s what we were doing, and that was – that was my reason of being there, you know, to have a sesh, and – which a ‘sesh’ is, you know, to smoke cannabis. And so to the people that was graphing on the walls, I had no knowledge. I had no, you know, knowledge that they were a part of a gang or anything like that.
MEMBER: So who else was arrested at this time?
APPLICANT: I think there was about three of us or so at that time that was arrested.
MEMBER: Who were they?‑‑‑One was my cousin, [Redacted], the one who was with me in the car accident.
MEMBER: Yes?
APPLICANT: And the other one, I don’t remember his name at all.
MR FREEBURN: WZFX, I suggest to you that, at least from 2015, if not before, you were aware of what the Apex street gang was. Do you agree?
APPLICANT: No, I don’t agree at all.
MR FREEBURN: Can I suggest that you were a member of the Apex street gang from at least 2015? Do you accept that?
APPLICANT: No, I don’t.
MR FREEBURN: What do you say to the proposition that you were a founding member of that gang?
APPLICANT: I’d say that’s completely wrong. Like, yes, I did hang out with the wrong crowd, but I had no part in a gang and I had no knowledge of the people that – the crowd that I was hanging around with at the time that they were a part of a gang.
MEMBER: You say that, WZFX, but when you describe ‘hanging around with the wrong crowd’, what do you mean by that?
APPLICANT: Well, because at the time of where I was, you know, constantly going out a lot because of the fact of, like – I was – I was, in a way, I was struggling a lot, you know, through just coping, you know, like, mentally, you know, as well as physically, you know, with going to school. I was going through a lot of depressions and stuff like that, and so that’s what led to, you know, me going out and hanging out with the wrong crowd, you know. Wrong ‑ ‑ ‑
MEMBER: So your evidence is…you were depressed, so – and you were struggling with other issues, and you went out with the wrong crowd? That was your way of dealing with being depressed, was it, hanging around with the wrong crowd?
APPLICANT: Well, yes, because we were drinking and smoking. So that was a way of me coping with the, you know, the stress and just the depression.
MR FREEBURN: Right. So I suppose just continuing with that, you categorically denied today in your evidence to the tribunal that you were a founding member of the Apex gang. You categorically denied that you were a member, or otherwise a member, of this Apex gang. You’ll see that the second – in the second last bullet point of this G11 on page 81, which is the Victoria Police information that’s been provided to the Department of Home Affairs – I’ll read it to you. It says, ‘Victoria Police information indicates that WZFX has been known to offend in the company of his brother, [Redacted], who is a known serious offender.’ What do you say to what’s recorded there?‑‑‑Well, I say that’s wrong, because I’ve never, you know, I’ve never been charged with my – [redacted], that’s my brother. And you could look through all my charges and there will never – you won’t find a charge that says that [redacted], my brother, was my co-offender. So, like, and I’m being completely honest. I’ve never been ‑ ‑ ‑
MR FREEBURN: It does say ‘known to offend in the company of his – of his brother, [redacted]’?
APPLICANT: No. No.
MR FREEBURN: So you deny that you’ve ever offended with your brother, [redacted]. Is that right?
APPLICANT: I’ve never offended in the company of him.
MR FREEBURN: Do you concede that [redacted] is a serious offender?
APPLICANT: I do not recall on his – on what he has done or to his actions, because ‑ ‑ ‑
MR FREEBURN: So you’re not aware of any of his offending?
APPLICANT: I’m not aware of any of his offending.
MR FREEBURN: The reason I ask that question is it says here that he’s a ‘known serious offender’?
APPLICANT: Yes.
MR FREEBURN: So what do you say about that? In your mind, with what you know, is it your evidence that he is or is not a known serious offender?
APPLICANT: To be honest, I don’t know.
MR FREEBURN: You don’t know?
APPLICANT: I don’t know at all.
MR FREEBURN: Okay. So your evidence is that you don’t know anything about – you can’t comment on this bullet point from this Victoria Police document that says that ‘[redacted] is a known serious offender’?
APPLICANT: I cannot comment because there was nothing for me to – I don’t know anything of his criminal history or what he has done.
MR FREEBURN: But does he have a criminal history?
APPLICANT: I’m not aware of.
MR FREEBURN: You’re not aware of?
MR FREEBURN: No.
MR FREEBURN: Of whether [redacted] has a criminal history?
APPLICANT: Like him being my brother, it’s still I do not – like when he leaves or whatever, I have no – no knowledge of what he has done or anything like that. I have no knowledge of his criminal offending or what he has done or whether, you know, if he’s been arrested or not.
MR FREEBURN: So but he’s your cousin isn’t he?
APPLICANT: Yes, brother, yes.
MR FREEBURN: But you describe him as your brother because you lived in the same house, isn’t that correct?
APPLICANT: Yes.
MR FREEBURN: So your evidence – I just want to be very clear about this – your evidence is that you know nothing about – you’re not in a position, you say, to comment on what is recorded here that, ‘[redacted] is a known serious offender’?
APPLICANT: Yes, I’m not in a position to comment about that.
MR FREEBURN: At all?
APPLICANT: At all.
MR FREEBURN: So you know nothing about what is recorded here?
APPLICANT: No. Yes, I know nothing about it.
MR FREEBURN: Even now?‑‑‑Even – of him stating that he was an involvements of a gang and anything like that
APPLICANT: I know nothing of that.
MR FREEBURN: You know nothing about that?
APPLICANT: Yes…
MEMBER: Sorry to interrupt Mr Freeburn. Just in relation to this last point – bullet point – in this Victoria Police letter from 2018, on page 81, G11. It says: (Redacted)’s offending is of significant concern to Victoria Police. His record has demonstrated a consistent disregard for the community and has regularly involved robbery, theft and violence.
MEMBER: What do you say in response to what is recorded there?
APPLICANT: What I say to that is at the time then I was someone – and I was confused and – at the same time as lost, you know because I’ve now facing my trauma of my journey from Sudan, coming to Australia as well as being separated from my friends and then as well as me being here with my own biological sister, so I happened to take on the role of – to look after her as well, and my – and at the same time I was someone like in a world – I was too shy to ask any ‑ ‑ ‑
MEMBER: But what I am asking you to comment on… what is recorded here?
APPLICANT: M’mm.
MEMBER: What do you say in response to those two sentences which I read out?
APPLICANT: (No audible response.)
MEMBER: Let’s take it like this. In relation to the first sentence, it says, ‘(Redacted)’s offending is of significant concern to Victoria Police’?
APPLICANT: M’mm.
MEMBER: What do you say in response to that?
APPLICANT: I’d say I don’t – I don’t think I was a significant concern to the police because of – at the time I was – I didn’t have the full support, so – which there was no proper guidance….
MEMBER: And in relation to the sentence that says:
His record has demonstrated a consistent disregard for the community and has regularly involved robbery, theft and violence.
MEMBER: What do you say in response to that? Is that accurate?
APPLICANT: Like, yes, that’s accurate.
MEMBER: It’s accurate? Okay?
APPLICANT: M’mm.
MEMBER: Do you have a problem with the police, WZFX?
APPLICANT: No, I don’t. I believe in equality where there’s also a bad and a good seed in everyone.
MEMBER: But would you accept that your offending history suggests that you do have a problem with police?
APPLICANT: By the way – not fully – not fully have a problem with them, but like I have been taken to the police station and bashed before, so like it automatically put me in self-defence mode….
MEMBER: So your evidence is that you don’t have a problem with police?
APPLICANT: No, I don’t have a problem with police.
MEMBER: Do you consider yourself to be a violent person?
APPLICANT: No.
MEMBER: Would you concede that your criminal offending history suggests that you are?
APPLICANT: Yes.[60]
[60] Transcript, p 67, line 12 – p 75, line 19.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:
(a)The nature and seriousness of the Applicant’s conduct to date; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
I will now consider each in turn.
The Nature and Seriousness of the Applicant’s Conduct
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1 of the Direction:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) ... crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
…
I have already set out the Applicant’s offending history and do not propose to recite it here. It suffices to say that the Applicant has been found guilty of some 80 plus offences, which include violent offences.[61]
[61] Exhibit R1, p 8, para 39.
Paragraph 8.1.1(1)(a)(i) looks to violent and/or sexual crimes and characterises them as “very serious”. There is no doubt that the Applicant has committed violent offending/conduct, including Affray. On 20 June 2022, the Applicant was sentenced in the Kyneton Magistrates Court for the Affray offence, when the Sentencing Magistrate described the offence as “very serious”.[62] The Minister contends[63] and the Applicant readily concedes[64] that the Applicant has engaged in crimes of violence, engaging this subparagraph and supporting a finding that the Applicant’s offending is of a “very serious” nature.
[62] Exhibit Tr1, G7, p 62, lines 1-3.
[63] Exhibit R1, p 9, para 40.
[64] Transcript, p 115, lines 8-33.
The Minister’s submissions are not seriously contested by the Applicant. Accordingly, I find that the Applicant’s acts of violence engage sub-paragraph 8.1.1(1)(a)(i) in favour of a finding that the nature of the Applicant’s conduct is “very serious”.
Paragraph 8.1.1(1)(a)(ii) looks to crimes of a violent nature against women, regardless of the sentence imposed. Among other crimes, on 23 October 2015,[65] the Applicant was sentenced in the Dandenong Childrens Court for a crime of violence against a woman. Accordingly, my finding is that the Applicant’s offending also engages sub-paragraph 8.1.1(1)(a)(ii) in favour of a finding that the nature of the Applicant’s conduct is “very serious”.
[65]; Exhibit Tr1, G4, p 45.
Separately, the following sub-paragraphs are also relevant in the instant case, reflecting that the Applicant’s offending has been of a “serious” nature.
Paragraph 8.1.1(1)(b) looks to crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold or in the performance of their duties:
·The Applicant has been found guilty of multiple offences involving crimes and other offending against police and emergency workers in the performance of their duties. For example, on 24 April 2016, the Applicant was found guilty in the Dandenong Childrens Court of a number of offences, including Assault emergency worker on duty and Resist police officer.[66]
[66] Transcript, p 123, lines 1-42.
·On 27 April 2023, the Applicant threatened immigration detention centre staff in relation to the provision or non-provision of music equipment:[67]
[The Applicant] made threats towards staff, stating that if he was not provided with music equipment that he had ordered some weeks earlier ‘then you will see’. He subsequently started throwing items from the common room at the officer’s station window, and was soon joined by other detainees.
Despite attempts by staff to de-escalate the situation, it escalated rapidly and it was deemed unsafe for staff to enter the compound. Detainees gained access to a fire hose and flooded the officer’s station by spraying water under the door, and swung the metal nozzle of the hose at CCTV cameras and the doors and windows of the officer’s station.
[The Applicant] was observed during the incident kicking a microwave oven, attempting to force entry to the officer’s station by kicking the door, and attempting to force open the fire hose reel. A hooded and masked detainee is shown bringing a rubbish bin with a lit fire into the common area, adding bed sheets and linen to the fire, and fanning the flames. The masked detainee is noted to be wearing the same jumper [the Applicant] was wearing prior to the incident.
[The Applicant] and a number of other detainees climbed onto the roof of the detention centre at approximately 7.13pm, and came down at 2.20am the following morning.
·On 21 March 2023, the Applicant behaved aggressively and abusively, in relation to not being able to collect property items that were dropped off for him. His conduct included causing damage to property:
[The Applicant] was upset and displayed abusive and aggressive behaviour after being advised that he was unable to collect property items dropped off by his family members. He stated he would not leave the property area without his items, punched a metal door, and shouted ‘fuck this’. He eventually returned to his compound after speaking to a senior staff member.[68]
[67] Exhibit Tr1, G43, p 344.
[68] Exhibit Tr1, G43, p 345; Transcript, p 59, line 19-46, p 60, lines 1-47, p 61, lines 1-47, p 62, lines 1-46, p 63, lines 1-14.
Paragraph 8.1.1(1)(c) looks to sentencing for certain non-precluded offending. In particular, when assessing the nature and seriousness of an Applicant’s offending, regard must be had to the fact that the Applicant has been sentenced to terms of imprisonment for his offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved. In the instant case, the Applicant has been sentenced to separate terms of six months imprisonment and three years of youth detention. The Applicant has also received a very wide range of non-custodial sentences. The Minister’s submission is that regard must also be had to the fact that the Applicant has been sentenced to a term of imprisonment for his offending as an adult and incarcerated in a juvenile detention centre as a minor.[69] The Applicant contends that it is “notable” that the vast majority of his offending occurred as a minor and the majority of his offences did not result in a conviction.[70]
[69] Exhibit R1, p 9, para 38.
[70] Exhibit A1, p 8, para 37.
Paragraph 8.1.1(1)(d) looks to the frequency of the non-citizen’s offending, and/or whether there is any trend of increasing seriousness. The Applicant contends that his offending has been neither frequent nor with any trend of increasing seriousness.[71] The Minister submits that the Applicant is a frequent offender, having been sentenced on 11 occasions in relation to over 80 offences.[72] The Minister also contends that there has been dangerous offending throughout his criminal career, with an uptick across adulthood.[73] I accept the Minister’s submission.
[71] Transcript, p 116, lines 36-47, p 117, lines 1-15.
[72] Exhibit R1, p 9, para 39.
[73] Transcript, p 125, lines 15-19.
Paragraph 8.1.1(1)(e) looks to the cumulative effect of repeated offending. The Minister contends, and I find, that the totality of the Applicant’s offending can easily be viewed cumulatively as having had a deleterious impact on the Australian community.[74] , Further, I find that some of the cumulative effects of the Applicant’s offending include:
·First, a demonstrated failure to comply with or otherwise meet the requirements of lawful Australian authority;
·Second, the progressive evolution of the sentencing regime imposed on the Applicant demonstrates that he has failed to experience any deterrent or dissuading effect of the progressively more severe sentences (including imprisonment) that have been imposed on him;
·Third, that his regular use of, and predilection for, illicit substances and alcohol have distorted his moral compass, occasioning violent and other serious offending; he has also contributed to the circulation of harmful drugs in the community and associated criminality;
·Fourth, he does not appear to have formed a definitive understanding of the necessary level of responsibility and lawful compliance in the operation of a motor vehicle on Australian roads, and has shown recklessness and indifference to the safety of other road users and the Australian community generally;
·Fifth, his offending must, on any reasonable analysis be found to have caused substantial physical injury and damage, financial suffering, with corollary emotional anguish, inconvenience and hardship for many individuals and families, with such offending also having caused emotional distress and fear for those members of the Australian community who have had their personal space or homes invaded by the Applicant;
·Sixth, by offending against police and emergency service workers, he has endangered public officials in the performance of their duties;
·Seventh, his offending has tied up considerable law enforcement and judicial resources; and
·Eighth, by serially offending since the age of 16, and over his whole adult life, the Applicant has shown complete disregard for the Australian community, its laws and institutions. For this Applicant, it is clear that incarceration and detention have been the only mechanisms to prevent the Applicant from further criminal offending and otherwise protect the Australian community from the Applicant’s propensity for dangerous and violent criminality.
[74] Exhibit R1, p 9, para 39; Transcript, p 121, lines 7-9.
Paragraph 8.1.1(1)(g) looks to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing about the consequences of future offending in terms of the non-citizen’s migration status. In this case, the Applicant concedes he has reoffended despite being warned about the consequences of the same in relation to his migration status.[75] To my mind, this enhances the seriousness of the Applicant’s offending in the context of this Primary Consideration 1.
[75] Transcript, p 117, lines 17-21; p 136, lines 35-47; p 137, lines 1-10.
Conclusion about the nature and seriousness of the Applicant’s offending
The Applicant made much of the fact that the majority of his offending history occurred while he was a minor.[76] To my mind, the Applicant’s overall criminal history, including his offending as a minor, shows a relatively consistent pattern of very serious conduct and criminality. Even putting the Applicant’s offending as a minor to one side, the Applicant’s adult offending is properly characterised as “very serious”.
[76] Exhibit A1, p 2, para 9.
I do not accept the Applicant’s denials as to his membership of, and participation in, the APEX Street Gang. His evidence, in the face of compelling Victoria Police information, was, frankly, self-serving and unbelievable.
I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be easily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the following relevant factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…
Paragraph 8.1.2(1) & (2)(a) – The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(1) creates the concept of an unacceptable risk - a risk that the community should not be expected to bear regardless of other considerations.
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct.
I have already assessed, in the context of paragraph 8.1.1(1)I, the nature of the harm that the Applicant has wrought on individuals and the Australian community. In the Minister’s submission, this is a case that the risk of harm is “so serious that any risk of re-offending is unacceptable”:[77]
The applicant’s varied criminal history means that a broad range of harms may befall members of the Australian community if he were to reoffend. If the applicant were to reoffend by committing violent offences, the nature of the harm that may result includes physical harm up to and including death. Offending of that nature may also have ongoing psychological consequences for the victims and others. It will also have broader financial and other consequences to the justice and health systems. If the applicant were to reoffend by committing property offences, the harm that would flow from that offending is likely to be financial harm to Australian citizens and businesses. If the applicant were to reoffend by committing further driving offences, the nature of the harm that may result includes physical harm, up to and including the possibility of the death, of other road users including drivers, passengers, pedestrians and cyclists. Further drug offending would result in further drugs being circulated within the community.[78]
[77] Exhibit R1, p 10, para 42.
[78] Exhibit R1, p 10, para 42.
The Applicant submits that, with respect to the nature of the harm, it would likely be psychological, physical and financial harm, but of a limited degree. The Applicant says that it is not open for the Tribunal to speculate as to other harms that may occur from similar offending.[79]
[79] Exhibit A1, p 9, para 41.
In my view, the Minister’s submissions must be accepted. Having regard to the Applicant’s offending history, if the Applicant were to reoffend in the same or a similar manner as he has in the past, he is likely to cause substantial psychological, financial and catastrophic physical harm to members of the Australian community.
In summary, I find that the type of harm posed, and the type of harm already visited, is so serious that any risk that the Applicant may again commit similar offending is one which is completely unacceptable.
Paragraph 8.1.2(2)(b) – the likelihood of the non-citizen engaging in other criminal or serious conduct
In his Personal Circumstances Form (PCF), in response to the question “what do you believe to be the risk of you offending in the future, and your supporting reasons?”, the Applicant said:
Nothing will be a risk due to family support.[80]
[80] Exhibit Tr1, G19, p 175.
In submissions issued by the Applicant’s lawyers in July 2021, the Applicant contends that he is of a “low risk to the community”. He also says that he does not pose an unacceptable risk to the Australian community. He continues to receive the support from his family and friends within the community.[81] It is noted that these submissions were issued prior to the Applicant being charged with the Affray offending. In closing submissions, the Applicant said that he is a “low risk” of reoffending:[82]
MEMBER: … All right. And thinking about the risk of you reoffending based on the work that you’ve done around rehabilitation, would you say that you – that there’s a low risk, a medium risk or a high risk of you reoffending in a similar way to that which you’ve reoffended in the past?
WZFX: In my opinion, there’s a low risk of …
MEMBER: A low risk. Okay.
[81] Exhibit Tr1, G22, p 200.
[82] Transcript, p 118, lines 29-36.
The Applicant says that his criminal history should be read together with the information relating to his mental health issues, traumatic upbringing and alcohol and drug use, as they are fundamentally related.[83] The Applicant also sites “racism” as a circumstance surrounding his offending.[84]
[83] Exhibit A1, p 8, para 36.
[84] Exhibit A2, p 5 paras 20 & 22; p 7, para 30.
The Applicant's contentions have explained some other additional background to his offending:[85]
·He arrived in Australia in December 2005, and reunited with many family members, including cousins, grandparents, uncles and aunts. The Applicant was enrolled in an English language program, but otherwise was not provided with any trauma intervention or cultural integration programs. He enjoyed school and completed his year nine at Gleneagles Secondary College in Endeavour Hills.
·The Applicant’s putative mother A1 and Mr Paguier had three additional children while in Australia but also assumed responsibility for her minor brother and sister and Mr Paguier’s minor sister. A1 and Mr Paguier therefore had parental responsibility for 10 children, including their five biological children, the Applicant and his sister CS, and three of the couple’s younger siblings. The Applicant says that he considers the children he was raised with to be his brothers and sisters.
·The Applicant says that, while he had considerable support in the community, excelled in education and was a valued brick laying apprentice and employee, he struggled with undiagnosed Post-traumatic Stress Disorder (PTSD) and the difficulties of his past. He says that he had no understanding of the impact of trauma or the value and existence of therapy for such trauma. He says that his childhood in Australia was also marked by racism in the community, particularly from figures of authority including teachers and members of the Victoria Police force. He says he did not share his struggles with anyone and instead turned to alcohol to self-medicate.
[85] Exhibit A1, p 3, para 16-18.
The Applicant has made further detailed submissions regarding the non-refoulement obligations that he says are owed to him. These may be summarised as follows:
·He arrived in Australia as the holder of a Global Special Humanitarian (subclass 202) visa after being found to be a refugee by the UNHCR. His non-refoulement claims have been raised in previous legal submissions. He raises protection claims on the basis of his fears of serious and significant harm in South Sudan on account of his ethnicity, his status as a person long absent in a Western country, his status as a person without support, his mental health, and his imputed political opinion. He fears harm in the form of death, loss of liberty, violence, forced recruitment to armed forces and deprivation of healthcare. These subjective fears are corroborated by authoritative and cogent country information.[189]
·The Applicant contends that, accordingly, the Tribunal ought to find that the Applicant engages Australia’s international non-refoulement obligations - including under the Refugees Convention, the ICCPR and the CAT - both at international law and as those international laws are given effect in Australia’s domestic law.[190]
·The Applicant goes on to say that it is important also to understand what that means, beyond recitation of the fact. The Applicant fears harm in South Sudan on account of his ethnicity, his status as a person long absent in a Western country, his status as a person without support, his mental health, and his imputed political opinion. The harm he fears includes death, loss of liberty (including shackling), violence (including forced recruitment), and deprivation of healthcare. The Applicant states that the fact that this has not yet been recognised by a decision maker, does not negate the clear facts of the circumstances in his case.[191]
[189] Ibid, para 111.
[190] Ibid, para 112.
[191] Ibid, p 28-29, para 113.
The Applicant also made submissions with respect to his possible release on a Bridging R visa. These can be summarised as follows:
·If the Tribunal affirms the Department’s decision not to revoke the visa cancellation and NZYQ becomes applicable - likely after years - and the Applicant is released on a Bridging Visa R, the state of the law at present means that he would be exposed to further harm that is entirely disproportionate.[192]
[192] Ibid, p 29, para 114.
·A Bridging Visa R is a Removal Pending Bridging visa. The Applicant would remain in the community until his removal to a third country is arranged, including if he were forced to make a removal request. His status in Australia would remain insecure, with consequences for his mental health, and he would be unable to access the rights he formerly had as a permanent resident.[193]
[193] Ibid, para 115.
·The newly introduced Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) would apply, mandating extraordinary conditions be imposed on a person for life including but not limited to:[194]
[194] Ibid, para 116.
oReporting regarding:
· Who the Applicant is living with, impairing his ability to find and maintain accommodation;
· Any travel;
· Any organisation membership or association;
· Any contact with individuals, groups or organisations who are or have been involved in illegal activities;
· Banking arrangements and debts.
oRequiring approval to perform work involving more than incidental contact with minors or undefined vulnerable persons, impairing his ability to find and maintain employment;
oImposing a curfew between 10pm and 6am, impairing his ability to find and maintain employment; and
oRequiring wearing a monitoring device at all times, impairing his ability to find and maintain employment, housing and social connection.
·In addition to these conditions an extreme mandatory sentencing regime also applies. This is in spite of the extent of the conditions making them almost incapable of compliance. If the Applicant were to breach any condition, he would be exposed to a mandatory custodial sentence of one to five years for every single breach.[195]
[195] Ibid, p 30, para 117.
In summary, the Applicant contends that this Other Consideration (a) should weigh very heavily in favour of revocation.
Minister’s submissions
The Minister likewise made very detailed submissions on Other Consideration (a), which may be summarised as follows.
In his representations to the Department, the Applicant submitted that it was unclear whether he was in fact still a Sudanese citizen or whether he was a citizen of South Sudan since that country was established after his departure. In his statutory declaration provided to the Department, the Applicant also stated that he believed he might be a citizen of South Sudan. The Minister contends that the Applicant is a citizen of South Sudan.[196]
[196] Exhibit R1, p 15, para 66.
In 2011, the new South Sudanese government adopted the Transitional Constitution of 2011, the Nationality Act 2011 and the Nationality Regulations 2011. These laws entitle South Sudanese citizenship to a person who or has a parent, grandparent or great-grandparent who was born in South Sudan (Article 8(1)(a)) or is a member of an “indigenous ethnic community” of South Sudan (Article 8(1)(b)). Independent information also states that “the striking result of Article 8(1)(b) is that every Dinka and Nuer inside or outside South Sudan will automatically acquire South Sudanese citizenship by operation of law”. On the Applicant’s own evidence, he is of Nuer ethnicity. Therefore, it is the Minister’s position that the Applicant is a citizen of South Sudan.[197]
[197] Exhibit R1, p 15-16, para 67.
Direction 99 recognises that it may not be possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application (paragraph 9.1.2(2)). The Direction provides that the process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and that decision-makers may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims will be assessed fully, as required by s 36A of the Act, before consideration is given to any character or security concerns.[198]
[198] Exhibit R1, p 16, para 68.
The Applicant has never held a protection visa (and no “protection finding” has been made with respect to him) and it is therefore relevant that he is able to apply for a protection visa. Because the Applicant is able to apply for a protection visa, the Tribunal’s decision will not necessarily result in the Applicant’s removal to South Sudan. The Applicant would not be liable for removal whilst a valid protection visa application was being determined (paragraph 9.1.2(3) of Direction 99). The Tribunal may therefore defer consideration of non-refoulement obligations to the protection visa application process.[199]
[199] Exhibit R1, p 16, para 69.
Nevertheless, the majority in M1/2021[200] explained that where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the cancellation decision should be revoked.[201]
[200] [2022] HCA 17.
[201] Exhibit R1, p 16, para 70.
The Minister contends that the Tribunal should defer consideration to the dedicated process of a protection visa application, in circumstances where it can infer the applicant will make an application for a protection visa if he fails in this Tribunal and genuinely holds the fears he claims.[202]
[202] Exhibit R1, p 17, para 71.
The Applicant made a brief claim that there is a real possibility that he will face indefinite detention. The Minister accepts that regardless of whether the Applicant applies for protection visa or not, if the Tribunal decides to affirm the decision under review, the Applicant will face a period in detention in the near future.[203]
[203] Exhibit R1, p 17, para 72.
However, this consideration does not outweigh the protection of the Australian community consideration. Further, if the Applicant applies for a protection visa he will not be liable for removal until that application is determined, and as such any further detention is a legal consequence of that decision, not a legal consequence of the current proceedings. In this regard, the Tribunal should be satisfied that the applicant would likely make an application for a protection visa should the Tribunal affirm the delegate’s decision in these proceedings.[204]
[204] Exhibit R1, p 17, para 73.
On 8 November 2023, the High Court gave judgment in NZYQ[205] by pronouncing orders. Those orders relevantly included:
1) It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:
(a) the plaintiff’s detention was unlawful as at 30 May 2023; and
(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.
2) A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith.[206]
[205] [2023] HCATrans 154.
[206] Exhibit R1, p 17, para 74.
On 28 November 2023, the High Court gave reasons for pronouncing those orders.[207]
[207] Exhibit R1, p 17, para 75.
Under Direction 99, one of the “other factors” to be considered (paragraph 9) is the “legal consequences of the decision” (paragraph 9.1(1)(a)). In particular, decision-makers are required to be mindful that, where a non-citizen is covered by a protection finding, the effect of ss 189 and 197C(3) of the Act is that the non-citizen cannot be removed to a country in respect of which the protection finding has been made, and they must remain in immigration detention until they are granted a visa or they can be removed to another country (paragraph 9.1.1(2)). Where a non-citizen is not covered by a protection finding, while the decision-maker must consider the person’s representations concerning protection claims, it is open to the decision-maker to choose to proceed on the basis that protection claims can be assessed if and when the non-citizen applies for a protection visa (paragraph 9.1.2(2)).[208]
[208] Exhibit R1, p 17-18, para 76.
In the Minister’s submission, the effect of NZYQ is that, where the statutory duty to remove a non-citizen has arisen (pursuant to s 198 of the Act), the detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future, and the non-citizen must be released from immigration detention.[209]
[209] Exhibit R1, p 18, para 77.
The Minister notes the following circumstances in this matter:[210]
·The Applicant is a citizen of South Sudan.
·The Applicant has not applied for a protection visa, but it is open to him to do so. No protection finding has been made in relation to the applicant, and as such, s 197C(3) is not engaged.
·Following a non-revocation decision by the Tribunal, the removal obligation in s 198 of the Act will continue to apply to the Applicant (s 198(2B)). The Applicant will remain in immigration detention under ss 189 and 196 of the Act unless and until he applies for and is granted a protection visa, he is granted another visa under s 195A, a residence determination is made under s 197AB, or the Applicant is removed.
·If the Applicant applies for a protection visa, the removal obligation in s 198 of the Act would not apply while that application is being determined: s 198(5A). The Applicant would lawfully remain in immigration detention under ss 189 and 196 of the Act pending the determination of his protection visa application.
[210] Exhibit R1, p 18, para 78.
In summary, the Minister contends that the legal consequence of a non-revocation decision by this Tribunal is not affected by NZYQ because section 198 of the Act, read with section 197C(1) and (2) will continue to require the Applicant’s removal, and the Minister does not concede there is no real prospect of removal becoming impracticable in the reasonably foreseeable future.[211] Separately, the Minister also contends that the Applicant may choose to apply for a protection visa. Consideration of any claims made by the Applicant which may give rise to international non-refoulment obligations should be deferred until such time as the Applicant takes that step.
[211] Exhibit R1, p 19, para 79.
Conclusions about legal consequences
Based on what is before me, I do not consider that the Tribunal is in an optimal position to make a finding about whether the Applicant is in need of complementary protection. The Applicant is not precluded from applying for a protection visa. If he does, then his claims can be more comprehensively assessed in that process, and I am of the view that that is the appropriate course.
The Applicant cannot be removed while a protection visa application is being processed, and the grant of a protection visa would obviously entitle him to return to the wider community. He could be found to be in need of complementary protection but disqualified from being granted a protection visa because of character, community safety or security concerns. If a protection finding were made in the course of considering a protection visa application made by the Applicant (and not quashed or overridden), then section 198 of the Act would not require or authorise his removal. He would be detained in immigration detention as required by section 189 of the Act for an indefinite period.
There is a theoretical possibility that the Applicant could be removed to an alternative country, or the Minister could exercise his/her personal discretion under section 195A of the Act to grant another visa or under section 197AB of the Act to make a residence determination to enable the Applicant to reside at a specified place in the community, subject to appropriate conditions. However, there is no evidence regarding the likelihood of these powers being exercised, and the Minister’s current position is that the Applicant should not have a visa.
There is a real possibility that a non-revocation decision will result in the indefinite detention of the Applicant, which will mean continued physical separation from his family and limited access to the psychological treatment he needs. An alternative to indefinite detention is removal to South Sudan. That would occur if the Applicant were not considered to be at real risk of persecution or significant harm specific to him (to put it simplistically). However dire the possible legal consequences of an adverse decision may be for the Applicant, this cannot be determinative: it hardly needs to be pointed out that a risk of serious harm in one’s home country is not a license to perpetrate harm in the Australian community. It is difficult to quantify the weight Other Consideration (a) carries based on possibilities. However, when balancing all the mandatory considerations, I am cognisant that an adverse decision will likely result in either removal to South Sudan (addressed below in Other Consideration (b)) or indefinite detention.
In my view (and I find), it follows that Other Consideration (a) carries neutral weight in the instant case.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction guides a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Overall, the Applicant says that this Other Consideration (b) weighs heavily in favour of revocation of the cancellation decision.[212]
[212] Exhibit A1, p 31, para 125.
The Applicant contends that paragraph 9.2(1) of the Direction requires the Tribunal to consider the extent of impediments if the Applicant were removed, and take into account the Applicant’s health, including his mental health.[213]
[213] Exhibit A1, p 31, para 118.
The Applicant also contends that international non-refoulement obligations are an impediment, within the context of this Other Consideration (b). In particular, the Applicant says that M1/2021 is further authority for this proposition. The Applicant further points to the decision of BKTS, in which the Federal Court of Australia found that the Tribunal erred by failing to weigh non-refoulement obligations as part of the consideration of impediments if removed on the basis that the Applicant would only return by “choice”. The Court found that such a finding by the Tribunal failed to engage with the human consequences and the reality of constructive refoulement.[214]
[214] Exhibit A1, p 30, para 119.
The Applicant also contends that he would face “the most severe conceivable impediments” if he were returned to South Sudan.[215] He says that he faces grave risk to his life and liberty. In considering this Other Consideration (b), the Applicant submits that the Tribunal must have regard to the most recent Department of Foreign Affairs and Trade Country Information Report on South Sudan.
[215] Exhibit A1, p 30, para 120.
The Applicant otherwise contends:[216]
·The humanitarian situation in South Sudan is severe, and one of conflict and scarcity. It is estimated that 24.7 million people need humanitarian assistance and that there are 2.7 million internally displaced people with 823,000 people having crossed the border since 15 April 2023;
·The Applicant would not have access to mental health support and intervention or treatment for his PTSD, depression, anxiety and drug and alcohol use. As a result, his conditions will go untreated and his health is likely to significantly deteriorate;
·The Applicant also faces a real risk of violence, discrimination in accessing adequate health treatment because of his profile as a member of the Nuer ethnic groups, as a returnee from the West, as someone with an imputed political opinion and as someone with serious mental health issues; and
·That this, combined with the stress of the security situation, humanitarian crisis, overwhelming fear of political persecution and the isolation from his family, community and support network will inevitably have a significant impact on the Applicant’s physical and mental health. The Applicant says this is significantly exacerbated by his extraordinarily traumatic history prior to his arrival in Australia and associated PTSD. The Applicant further stated that he has no support network whatsoever in South Sudan having never been to the country and knowing no one there.
[216] Exhibit A1, p 30-31.
The Minister says that, to the extent that this Other Consideration (b) weighs in favour of the Applicant, it is outweighed by the countervailing Primary Considerations. That being said, the Minister does appear to accept that there is some weight in the Applicant’s favour under this Other Consideration, and contends as follows.
The Applicant is aged in his mid-twenties and has not declared any physical or mental health conditions. The Applicant declared that he does not have any diagnosed medical or psychological conditions. Psychologist Ms Matthews in her report said that the Applicant reported that he was in good health and apart from feeling upset about his current visa problems he reported no mental health difficulties.[217]
[217] Exhibit R1, p 19, para 82.
In terms of any cultural and language barriers, the Applicant left Sudan when he was aged four or five (and lived in Egypt between his departure from Sudan and his arrival in Australia). The Applicant submits that he can speak basic Arabic and can speak Nuer conversationally.[218]
[218] Exhibit R1, p 19, para 83.
The Minister accepts that the healthcare facilities available in South Sudan are of a considerably lower standard to those in Australia. However, the evidence before the Tribunal does not go as far as to suggest that the Applicant’s conditions are so severe that the Applicant would be completely incapable of establishing himself in South Sudan and the applicant would be able to access those supports to the same extent as other South Sudanese nationals.[219]
[219] Exhibit R1, p 19-20, para 84.
The Applicant is relatively young and has a history of employment while in Australia bricklaying. Trade skills acquired through this employment would assist him in finding employment and supporting himself.[220]
[220] Exhibit R1, p 20, para 85.
To the extent that this consideration weighs in favour of the Applicant, it is outweighed by the countervailing primary considerations.[221]
[221] Exhibit R1, p 20, para 86.
Based on the parties’ submissions, I have arrived at the following views.
Sub-paragraph 9.2(1)(a): the Applicant is in his mid-twenties. I do not consider his age to be a significant impediment to him re-establishing his life. The evidence before the Tribunal in relation to the Applicant’s health is somewhat mixed. The Applicant has declared substance abuse issues (cannabis, methamphetamine and alcohol misuse and abuse). The Applicant contends that he has mental health issues (which he particularised in his submissions as PTSD and trauma), and some independent evidence from a psychologist and youth workers partially substantiating this characterisation.[222] However, there is also independent medical evidence that the Applicant is in good health, aside from feeling upset about his visa situation. Overall, I do accept that the Applicant has substantial health (including mental health) issues, and that these on balance, do present material re-settlement impediments in South Sudan.
[222] Exhibit Tr1, G35, p 310-313; G35, p 314-319; G37, p 321-333.
Sub-paragraph 9.2(1)(b): the Applicant was born in Sudan. There is some evidence that the Applicant speaks very basic Arabic, and cannot read or write Arabic. The evidence also suggests he speaks the Nuer language conversationally, but also cannot read and write it. To my mind, the Applicant would face language barriers and cultural re-integration challenges in adjusting to life in South Sudan. The reality is, the Applicant has not lived in his birth country for almost 20 years, and is largely unfamiliar with the same. I consider that he would likely face severe practical hardship, and some considerable isolation and dislocation in, initially, adjusting to life and culture in South Sudan, and that such issues will persist over the medium to long term.
Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health (including mental health) will likely present impediments to his return and re-settlement in South Sudan. I accept the Applicant’s contentions that the economic situation and lack of social services will likely result in very challenging re-settlement issues. That being said, the Applicant does have skills as a labourer and apprentice bricklayer, as well as some other vocational training. These job-ready skills may alleviate his capacity to financially support himself, however, it is likely that he will face a period of unemployment and severe economic hardship.
Overall, I am of the view (and find) that Other Consideration (b) confers heavy weight in favour of revocation of the decision under review.
Other Consideration (c): Impact on victims
There is no evidence from any victims of the Applicant’s offending as to the impact the decision would have on them. Overall, I find that this consideration is of neutral weight.
Other Consideration (d): Impact on Australian business interests
The Applicant contends there is no evidence regarding this Other Consideration (d).[223] The parties did not otherwise propound anything of substance in relation to Other Consideration (d). Overall, I find that this consideration is of neutral weight.
[223] Exhibit A1, p 31, para 126.
Findings: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations relevant to the present matter:
(a)legal consequences of the decision: neutral weight;
(b)extent of impediments if removed: heavy weight in favour of revocation of the decision under review;
(c)impact on victims: neutral weight; and
(d)impact on Australian business interests: neutral weight.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under subsection 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by subsection 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries very heavy, and determinative, weight against revocation;
·Primary Consideration 2: carries moderate weight against revocation;
·Primary Consideration 3: carries moderate weight in favour of revocation;
·Primary Consideration 4: carries moderate weight in favour of revocation;
·Primary Consideration 5: carries heavy weight against revocation.
I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 5 decisively outweigh the combined weight I have allocated to Primary Considerations 3 and 4, and Other Consideration (b), respectively; and
A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 25 October 2023 to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
..............[SGD].....................
Associate
Dated: 5 June 2024
Date of Decision: 18 January 2024
Applicant: Self-represented
Respondent: Mr Douglas Freeburn of Counsel
Mr Samuel Woods (instructing Solicitor, Sparke Helmore)
ANNEXURE 1
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED R1. Respondent Statement of Facts, Issues and Contentions R 20/12/2023 A1. Applicant Statement of Facts, Issues and Contentions A 05/01/2024 A2. Applicant Collated Bundle of Materials (pp 1-488) A - 05/01/2024 R2. Offending Chronology R - 20/12/2023 R3. Mike Sanderson, “Statelessness and Mass Expulsion in Sudan: A Reassessment of the International Law”, Northwestern Journal of International Human Rights. R - 20/12/2023 R4. Department of Home Affairs, “Standard Q&A Report – Sudan” R - 20/12/2023 Tr1. Section 37 G-Documents (G1-G44, pp 1-369) - - 10/11/2023 Tr2. Tender Bundle (TB1-TB5; pp 1-485) - - 20/12/2023
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