XTLP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 363
•2 March 2023
XTLP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 363 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2021/2697
Re:XTLP
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member C. J. Furnell
Date:2 March 2023
Place:Melbourne
The Tribunal affirms the decision under review.
..............................[SGD]..........................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – refusal to grant Protection (Class XA, subclass 866) visa – Migration Act 1958 (Cth) s 501(1) – applicant does not pass character test – substantial criminal record – whether to exercise discretion to refuse to grant the applicant the visa – Direction 90 – Ghana – primary and other considerations – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Child and Young Persons (Care and Protection) Act 1998 (NSW)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)
Cases
Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305
Au and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4040
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
Breeze v R [1999] QCA 303
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
CRI026 v The Republic of Nauru [2018] HCA 19
CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esber v Commonwealth of Australia (1992) 174 CLR 430
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798
Hughes v R [2017] HCA 20
HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202
JDVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229
Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594
LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471
Matthews v Minister for Home Affairs [2020] FCAFC 146
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
R v Butcher [1986] VR 43
R v Galas [2007] VSCA 304
R v Olbrich (1999) 199 CLR 270
RVJB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 962
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646
Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Convention Relating to the Status of Refugees, opened for signature 28 July 1951,189 UNTS 150 (entered into force 22 April 1954)
Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
REASONS FOR DECISION
Senior Member C. J. Furnell
2 March 2023
An April 2021 decision of a delegate of the respondent[1] has been remitted to the Tribunal for review according to law.
[1] G3, p.14, with “G” being a reference to a copy document given by the respondent under s 501G of the Act.
The delegate was not satisfied that the applicant passed the character test set out in the Migration Act 1958 (the Act) and decided to refuse to grant the applicant a Protection (Class XA, subclass 866) visa, in purported exercise of a discretion found in s 501(1) of the Act.[2]
[2] The decision of the respondent’s delegate was made under s 501(1) of the Act. The discretion to refuse to grant a visa arising under that section applies in relation to protection visa applications: Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v BFW20 by his Litigation Representative BFW20A (2020) 279 FCR 475 at [8].
I, too, am not satisfied that the applicant passes the Act’s character test and have decided to affirm the decision to refuse to grant him a visa, for reasons which I will get to shortly.
Before outlining those reasons, however, mention should first be made of the material which was before the Tribunal in this proceeding and of some aspects of the procedural and factual context.
MATERIAL CONSIDERED
In undertaking its review of the April 2021 decision to refuse to grant the applicant a protection visa, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[3]
[3] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant, Ms Y Aiello, clinical psychologist, Mr J Hall, clinical psychologist, Mr T Watson-Munro, consultant psychologist and the applicant’s wife (called in these reasons Ms X).
As for documentary material lodged with the Tribunal, it comprised:
(a) 310 pages of copy documents given by the respondent under s 501G of the Act (the “G” documents), marked as Exhibit R1;
(b) 691 pages of a tender bundle lodged by the respondent (the “RTB” documents), marked as Exhibit R2;
(c) 730 pages of a tender bundle lodged by the applicant (the “ATB” documents), marked as Exhibit A1;
(d) 30 pages of a supplementary tender bundle lodged by the applicant (the “ASTB” documents), marked as Exhibit A2; and
(e) A letter of instruction of 24 October 2022 to Mr Watson-Munro, marked as Exhibit R3.
The parties made pre-hearing submissions about that documentary material.[4]
[4] Reference is made to the applicant’s Statement of Facts, Issues and Contentions of 9 September 2022 (A SFIC), to the respondent’s Statement of Facts, Issues and Contentions of 19 October 2022 (R SFIC) and to the applicant’s submissions in reply of 27 October 2022 (A REPLY).
Procedural Context and Questions in Issue
This proceeding has a long and convoluted history. Various aspects of that history were outlined in a June 2022 decision of Stewart J quashing an earlier decision of the Tribunal with respect to the applicant.[5] There it was said that:
“6. In December 2016, the applicant’s Child visa was mandatorily cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act.…
8. In February 2018, the applicant lodged an application for a Subclass 866 Protection visa, claiming to fear harm in Ghana for reasons associated with his mental ill-health including what he says is the inadequate, dangerous and discriminatory treatment of persons with mental health issues, and lack of available family, medical and community support for people with mental health issues, in Ghana.
9. In December 2018, a delegate of the Minister refused the applicant’s Protection visa application as they were not satisfied that the applicant is a person in respect of whom Australia owes protection obligations.
10. The applicant sought merits review of that decision in the Tribunal. In March 2019, the Tribunal found that the applicant was a person in respect of whom Australia owes protection obligations pursuant to s 36(2)(a) of the Act and remitted the matter for reconsideration by the Minister…
11 In April 2021, a delegate of the Minister decided under s 501(1) of the Act to refuse the Protection visa on the basis that the applicant does not pass the character test. That section provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
12. The applicant sought merits review of this decision in the Tribunal…”
[5] XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646 at [10].
In July 2021, the Tribunal affirmed the delegate’s decision of April 2021.[6] That affirmation decision was, however, quashed in June 2022.[7] As stated earlier, the delegate’s April 2021 decision was remitted to the Tribunal for review according to law.[8]
[6] G25.
[7] G26.
[8] On 22 December 2021, the applicant was renotified of his Child visa cancellation under s 501(3A) of the Act. The applicant submitted a revocation request within the 28-day time limit and received acknowledgement of receipt from the Department on 2 February 2022. The applicant is yet to receive a decision about the revocation request. Neither party contended, however, that this was of any relevance to this proceeding.
In undertaking that review, the Tribunal stands in the shoes of the respondent in order to “do over again” that which was done by the respondent’s delegate,[9] performing the same function, exercising the same power,[10] subject to the same constraints and addressing the same question or questions[11] as the delegate.
[9] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].
[10] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440.
[11] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [51].
As they were for the delegate, the questions ultimately to be addressed in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should refuse to grant the visa for which he applied.
ASPECTS OF FACTUAL CONTEXT
The applicant was born in September 1982 in Accra, the Republic of Ghana and is currently aged 40.[12]
[12] ATB1, p.1.
The applicant’s mother died when he was aged four and he was thereafter raised by his grandmother in Ghana.
As for his time in Ghana, in a February 2018 statutory declaration, the applicant said that his “…grandmother looked after me very well and always did the cooking, shopping and housework. I had a normal childhood in Ghana and generally played with my friends when I wasn't at school. I didn't have any health problems when I was young, and didn't have much to worry about in Ghana.”[13] Consistently with that 2018 statement, in 2019, in an earlier Tribunal proceeding, it was found that the applicant “had a normal childhood in Ghana”.[14] In a statement made in September 2022, however, the applicant said that he “…saw things like people getting burned alive and people getting hurt” so that now he has “a lot of fear still in me”[15] and that he had only recently “…learned about the impact of what I saw in Ghana when I was young, on me. I am hoping to work through this by seeing psychologists and getting help.”[16]
[13] G8, p.39. When taken specifically to this statement at the hearing, the applicant implied it was accurate as his grandparents were alive and they “were there for me”: Transcript of the Hearing by Video in this matter on 23 and 24 November 2022 (“Transcript”) pp.36-37.
[14] G9, p.169.
[15] ATB1, p.19.
[16] Ibid.
This discrepancy concerning the applicant’s recollection of his experience in Ghana has been said by a psychologist to be (and I accept that it is) reflective of “…avoidance behaviours characteristic of posttraumatic stress, with…[the applicant] choosing not to disclose or think about his past trauma history so as to avoid the unpleasant feelings and memories associated with the trauma.”[17]
[17] G13, p.217 (February 2019 report of Ms Kris North). Mr Watson-Munro endorsed that opinion, stating that the applicant’s “…unwillingness to discuss his trauma history was related to avoidance behaviours characteristic of post traumatic stress”: ASTB1, p.10.
In August 2006, the applicant was granted an AH-101 (Child – Permanent) visa.
In early November or early December 2006, the applicant, aged 24, arrived in Australia,[18] reuniting with his father and his oldest sister.
[18] G10, p.182 suggests arrival in Australia in December 2006 while G8, p.39, G8, p,78 and G15, p.228 suggest it was in November 2006
By that time his father had re-married. From that marriage, the applicant’s father has two daughters and a son, plus a step-daughter,[19] all of whom, like the applicant’s father, live in Australia.[20] According to the applicant, his “…step siblings are grown up now. They are in their late teens or early 20s.”[21] I note, however, that one of his step siblings might still be a minor, aged 17.[22]
[19] ATB1, p.2.
[20] In a personal circumstances form of January 2016, the applicant claimed to have five siblings: G8, p.71 and G15, p.233
[21] ATB1, p.19.
[22] G8, p.39 (February 2018 statutory declaration).
The applicant has a daughter (called in these reasons Ms K), the result of a relationship the applicant had with a person referred to in these reasons as Ms T.
The applicant’s relationship with Ms T commenced in around December 2010 and ended, according to the applicant, when Ms K was born on [Date, Month] 2012.[23] I note, however, that the relationship may have ended before Ms K’s birth. First, certain police records suggest that the relationship had lasted for around a year, ending in December 2011 as a result of the applicant’s physical abuse of Ms T and that, in March 2012, Ms T was in hiding from the applicant.[24] Second, the history taken by Mr Watson-Munro and reflected in his November 2022 report suggests that the relationship ended in 2011,[25] as was also suggested in Mr Hall’s report of October 2022.[26] Third, the applicant’s relationship with his current wife, Ms X, was said by Ms X[27] and by the applicant[28] to have commenced on [Date, Month] 2012, before Ms K was born.
[23] Transcript, p.19, p.24.
[24] RTB8, p.148
[25] ASTB1, pp.3, 6
[26] ASTB2, p.25
[27] ATB2, p.46. In oral evidence, after having been told there was some ambiguity as to when she first met the applicant, Ms X stated that she had [Date, Month] in mind but knew it was in mid-year when they met and that it sounded right that she met the applicant a couple of days before Ms K was born: Transcript, p.76.
[28] See G8, p.69; G15, p.230.
Ms K is aged 10. Within a week of her birth in [Month] 2012 she was placed in foster care, where she remains. I outline later my findings concerning the nature of the relationship the applicant has with Ms K.
As just mentioned, the applicant commenced a relationship with his current wife, Ms X, around the time of Ms K’s birth in [Month] 2012. The applicant and Ms X were married in October 2017. The applicant describes his relationship with Ms X as loving and committed.[29] Having heard from Ms X, I accept that description as accurate.
[29] G8, pp.39-40.
Ms X has a son from a previous relationship, aged around 40 and referred to in these reasons as Mr X1. In a statutory declaration made in February 2018, the applicant described his relationship with Mr X1 as very close.[30] Mr X1’s wife has three children and a grandchild. There is little information about them in the material before me.[31] In his 2018 statutory declaration, the applicant said Mr X1 was like a son to him.[32]
[30] G8, p.40.
[31] As for the children, they are apparently aged 17, 22 and 24: ATB2, p.46.
[32] G8, p.40.
Ms X also has a daughter from a previous relationship, aged around 30 and referred to in these reasons as Ms X2. Ms X2 has five children. As with Mr X1, there is little information about Ms X2’s children before me.[33] I note that no mention was made of Ms X2 in the applicant’s 2018 statutory declaration or in a submission made on his behalf in August 2019 (other than a passing reference in the submission to him having two step-children).[34] In his 2022 statement, however, the applicant stated that he regarded Ms X2 and Mr X1 as his children “as I have been in their lives for about 10 years.”[35]
[33] As for the children, they are apparently aged 4, 9, 11, 13 and 15: ATB2, p.45.
[34] See G12, p.209. See also G8, p.40 where the applicant lists family members who are Australian citizens but does not refer to Ms X2.
[35] ATB1, p.16.
On the material before me I am not satisfied that the applicant has a close relationship with Mr X1 or Ms X2 (or, indeed, with their respective children). I do not accept the applicant’s characterisation of his relationship with them as close or quasi-parental. According to Ms X, her children (Mr X1 and Ms X2) speak to the applicant “from time to time”, mostly when Ms X is with them. Since 2017 they “…haven’t been able to see … [the applicant] and spend more time with him in person…”.[36] While I accept Ms X’s evidence to the effect that Mr X1 and Ms X2 “know and approve of” the applicant,[37] no statement from either of them in support of the applicant in this proceeding is before me.[38] This is not suggestive of a relationship which is close.
[36] ATB2, p.46.
[37] ATB2, p.52.
[38] When asked why her children had not provided a statement in support of the applicant Ms X said she had “never asked them”: Transcript, p.79.
The applicant is unable to read or write in English but can read and write a little in the Akan language.
He “…has a history of physical and mental health issues, including alcohol dependence, depression, post-traumatic stress disorder (PTSD) and schizophrenia.”[39]
[39] XTLP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 646 at [4].
In February 2018, the applicant stated that he had been diagnosed with depression, PTSD and schizophrenia.[40] In February 2019, a forensic psychologist (Kris North) assessed the applicant as having a history of childhood trauma which satisfied the criteria for post-traumatic stress disorder, of psychosis consistent with “Other Specified Schizophrenia Spectrum and Other Psychotic Disorder” and of “Alcohol Use Disorder, Moderate.”[41] In October 2022, Mr Hall (a clinical psychologist) opined that the applicant presents with PTSD[42] and suffers from a persistent depressive disorder.[43] In November 2022, Mr Watson-Munro opined that the applicant “… can be confidently diagnosed with a recurring Depressive Disorder, an Alcohol Use Disorder which is in Full Remission, an Anxiety Disorder and some features of post traumatic stress.”[44]
[40] G8, p.43.
[41] G13, p.213 (report of February 2019).
[42] Report of October 2022 of Joshua Hall (ASTB2, p.25). This was a diagnosis he confirmed in oral evidence: Transcript, p.45.
[43] ASTB2, p.26, p.29. This reflects the opinion of another clinical psychologist, Ms Aiello: see ATB6, pp.645-646.
[44] ASTB1. p.8. In oral evidence, Mr Watson-Munro opined that depression was integral to a diagnosis of PTSD: Transcript, p.69.
The applicant has been in prison or immigration detention since September 2016.[45]
[45] G8, p.42.
Possibly as a result of his mental health conditions,[46] an assault he suffered in prison in 2010[47] or his abuse of alcohol,[48] the applicant’s memory is not good.[49] The material before me is replete with references to the applicant having difficulty with memory.[50] As a result, I found him not to be an accurate historian. Much of his evidence before the Tribunal was (and significant aspects of the histories he apparently provided to those whose reports are before me were) either factually incorrect or inconsistent with other statements he made. Moreover, without finding that the applicant engaged in a deliberate attempt to deceive,[51] what I suspect to have been gaps in the applicant’s memory were sometimes replaced by self-serving, relatively benign, versions of relevant events. Examples of where this occurred can be found in evidence and statements of the applicant concerning the duration of his relationship with Ms T, the extent of his contact with Ms K, the nature of his relationship with his father, siblings and Ms X’s children, the context in which he began to consume alcohol excessively, his conduct in relation to various incidents in respect of which he was found to have offended, and the circumstances that led to an apprehended violence order being made against him in 2008.
[46] Mr Hall gave evidence to the effect that those suffering from PTSD often report difficulties with memory: Transcript, p.45. So too did Mr Watson-Munro: Transcript, p.67.
[47] See September 2022 statement of applicant at ATB1, pp.8-9.
[48] Transcript, p.73.
[49] Mr Hall gave evidence to the effect that, as far as he recalled, the applicant did not have any significant memory difficulties but had not asked the applicant specifically about this: Transcript, p.45.
[50] See, for instance, G25, p.291, where reference is made to evidence given in the context of a July 2021 Tribunal proceeding to the effect that trauma suffered by the applicant had affected his memory. In September 2022, the applicant stated, in relation to his offending, that he didn’t “…remember the details of some of the instances referred to. I would need more information about them to explain them more fully” (see ATB1, p.3). He then said “I find it hard to describe my history in Australia in order or to remember things at all” and that he could not “…remember a lot of things from the past in detail – only feelings” (see ATB1, p.9). See also ATB1, p.8; and G8, p.41.
[51] Albeit I note that in December 2018, in the context of considering the applicant’s application for a protection visa, the respondent’s delegate appeared to find that the applicant produced a fake letter under the letterhead of a general practitioner, a letter afforded no probative value by the delegate: G10, pp.186-187.
Does THE APPLICANT Pass the Character Test?
The applicant concedes that the Tribunal cannot be satisfied that he passes the character test.[52] He was right to do so.
[52] A SFIC [22]: “There is no dispute that the applicant does not pass the “character test…”.
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[53] The applicant has such a record. As will soon be seen, in August 2013 he was sentenced to a term of imprisonment of 18 months in respect of a high range Prescribed Concentration of Alcohol (“PCA”) while driving conviction.[54]
[53] Act, s 501(6)(a).
[54] Act, s 501(6) and (7)(c), which provides that a person does not pass the character test if sentenced to a term of imprisonment of 12 months or more.
Given that I am not satisfied that the applicant passes the character test, the remaining underlying question in issue is whether the Tribunal should refuse to grant the visa for which the applicant applied.
should the applicant’s application for a protection visa be refused?
As is apparent from what was said earlier, I have decided to refuse to grant the applicant’s application for a protection visa.
In arriving at that decision, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[55]
[55] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: see BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22].
In deciding whether to refuse to grant the visa for which the applicant applied, compliance with Direction 90 requires that consideration must be given to “…the specific circumstances of the case.”[56] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[57]
[56] Direction 90, cl 5.1(2). As Direction 90 is guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45] Compare, however, KXXH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1229 at [9] and CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [33], where Colvin J concludes that “the relevance of a particular consideration is a matter to be objectively determined (such that a failure to take into account a matter that was considered by a court on review to be relevant might be jurisdictional)…”.
[57] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45] citing Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [16] (“Plaintiff M1”). See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
That consideration is to be undertaken informed by,[58] and in the context of a framework comprised of,[59] certain principles.
[58] Direction 90, cl 6.
[59] Direction 90, cl 5.2.
Those principles are set out in cl 5.2 of Direction 90. They are as follows:
“5.2 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”
I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 90 to take into account in deciding whether to refuse to grant the visa for which the applicant applied.[60] The principles just outlined guide the “the manner and circumstances in which the identified considerations are to be taken into account.”[61]
[60] Direction 90, cls 5.2, 5.2(5) and 6.
[61] CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [27].
Considerations – Overview
The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[62]
[62] Direction 90, cl 8.
The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[63]
[63] Direction 90, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[64] and one or more primary considerations may outweigh other primary considerations.[65]
[64] Direction 90, cl 7(2).
[65] Direction 90, cl 7(3).
While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may be given more weight than primary considerations.[66] However, in order for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations.”[67]
[66] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
[67] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11], noting that “appropriate weight” is to be given to information and evidence from independent and authoritative sources: Direction 90, cl 7(1).
While primary considerations should generally be given greater weight than other considerations, left to the Tribunal is “…the evaluative task of allocating weight to the different relevant considerations.”[68]
Protection of the Australian community[69]
[68] CWRG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1382 at [32].
[69] Direction 90, cl 8.1.
I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct.
In the context of this consideration, the Tribunal is required to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering or remaining in Australia).[70]
[70] Direction 90, cl 8.1(1).
In taking this primary consideration into account, regard is to be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[71]
Nature and seriousness of conduct[72]
[71] Direction 90, cl 8.1(2).
[72] Direction 90, cl 8.1.1.
The applicant has an extensive criminal history. For a person who only arrived in Australia in late 2006 and who has spent a large amount of time since then in prison or detention, he has managed to cobble together an extensive criminal history. In the less than 10-year period in which he was free in the Australian community, he was a prolific offender. He was before the courts on around 16 occasions and has been convicted of numerous offences and sentenced to multiple terms of imprisonment.[73]
[73] G5, pp.26-31.
As for the nature of that extensive offending, it is broad in scope, involving, amongst other things, driving offences, violent offending of a more general nature, property offences and contravention of various orders and legal requirements.
Outlined below is a chart describing the applicant’s offending that was prepared in connection with the Tribunal’s July 2021 decision (the decision that was quashed) but omitting reference to certain “pending” charges in Victoria.[74]
[74] Minor corrections to the chart were made to reflect the Australian Criminal Intelligence Commission check results report of August 2080: see G5, pp.26-31.
Court date
Offence and court result
7 September 2016
Not comply with direction given by police officer: $600 fine
Resist officer in execution of duty: 3 months’ imprisonmentDrive vehicle under the influence of alcohol – 2nd+off: 9 months’ imprisonment
Drive motor vehicle during disqualification period – 2nd+off: 9 months’ imprisonment
3 June 2015
Drive with low range PCA – 2nd+off: Section 10A Conviction
Drive motor vehicle during disqualification period – 2nd+off: 10-month suspended sentence
4 December 2013
Common assault – T2: (Call up) Conviction confirmed. Sentence to commence
Destroy or damage property: (Call up) Conviction confirmed. Sentence to commence
Destroy or damage property: (Call up) Conviction confirmed. Sentence to commence
Fail to appear in accordance with bail undertaking: (Call up) Conviction confirmed. Sentence to commence
Stalk/intimidate intend fear of physical/mental harm-T2: (Call up) Conviction confirmed. Sentence to commence
Fail to appear in accordance with bail undertaking: Conviction confirmed. Sentence to commence
Drive while disqualified from holding a licence: 6 months’ imprisonment
Drive with middle range PCA: 6 months’ imprisonment and licence disqualified for 3 years
Drive with high range PCA – 2nd+off: Conviction confirmed. Sentence to commence
21 August 2013
Common assault; Destroy or damage property (x2);
fail to appear in accordance with bail undertaking; and stalk/intimidate intend fear of physical/mental harm: 12 months’ imprisonment (contravention of terms of sentence suspended on 8 August 2012).Drive while disqualified from holding a licence: 9 months’ imprisonment.
Fail to appear in accordance with bail undertaking (x2): 6 months’ imprisonment.
Drive with middle range PCA: 9 months imprisonment, licence disqualified for 3 years.
Drive with middle range PCA: 9 months’ imprisonment.
Drive with high range PCA – 2nd+off: 18 months’ imprisonment with 12 months non-parole period, licence disqualified for 5 years.
5 October 2012
Use unregistered registrable Class A motor vehicle: $210 fine, $83 court costs
8 August 2012
Common assault-T2: 12-month suspended sentence, 12 months’ probation
Destroy or damage property: 12-month suspended sentence, 12 months’ probation
Destroy or damage property: 12-month suspended sentence, 12 months’ probation
Fail to appear in accordance with bail undertaking: 12-month suspended sentence, 12 months’ probation
Stalk/intimidate intend fear of physical/mental harm-T2: 12-month suspended sentence, 12 months’ probation
27 April 2012
Unlicensed driver/rider (not licensed for 5 yrs)-1st offence: $200 fine Fail to appear in accordance with bail undertaking: $100 fine
Drive with high range PCA: $800 fine, licence disqualified for 2 years
20 April 2011
Breach of Police Family Violence Order (x2): Pleaded guilty, conviction recorded
28 February 2011 Goods in personal custody suspected being stolen (not m/v): $400 fine
17 August 2010
Assault occasioning actual bodily harm-T2: 8 months and 3 days’ imprisonment
Common assault-T2: 8 months and 3 days’ imprisonment
Larceny value <=$2000-T2: 8 months and 3 days’ imprisonment
11 November 2009
Contravene prohibition/restriction in AVO (Domestic): 12-month good behaviour bond
4 May 2009
Common assault-T2: 9 months’ imprisonment Common assault-T2: 9 months’ imprisonment Common assault-T2: 9 months’ imprisonment
Resist officer in execution of duty-T2: 16 days’ imprisonment
Custody of knife in public place: 16 days’ imprisonment
22 January 2009
Contravene prohibition/restriction in AVO (Domestic): 1-month imprisonment
20 January 2009
Common assault-T2: Section 10A Conviction
30 May 2008
Destroy or damage property <=$2000-T2: $300 fine
27 February 2008
Common assault-T2: $2,200 fine Common assault-T2: $2,200 fine
At the hearing, the applicant was taken to police and other material that related to some of the convictions just outlined. Certain of the applicant’s offending is also addressed in statements made by the applicant and lodged with the Tribunal.
As for the 27 February 2008 assault convictions, the applicant was taken to a police facts sheet dated 19 December 2007 and relating to events said to have occurred on that day, roughly 13 months after the applicant’s arrival in Australia.[75] The applicant was said to have then been very intoxicated, to have punched a man in the head and to have swung at, but missed, a woman. The applicant said he knew something happened “but not everything I can remember”.[76] The applicant did not disagree with the police description of the incident, save to say that he had “never punched anyone”. I reject that evidence. Where, as here, the relevant conviction is not a foundational element of the Tribunal’s jurisdiction “…the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.”[77] Hence, the Tribunal should only be prepared to go behind facts underlying a conviction (or sentence) when their lack of veracity has been established.[78] This means that, to arrive at a contrary factual finding, the material before me supportive of it would need to be of a significance sufficient to outweigh the probative value of the finding inherent in the conviction (or sentence).[79] A heavy burden would need to be met.[80]
[75] RTB1, pp.9-11.
[76] Transcript, p.11.
[77] See Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 at [42]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]; HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77] and the discussion of that case in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72]. Cf Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594 at [12] where it is said that the “…authorities provide that where a criminal conviction or sentence is a precondition for an administrative decision-maker’s power to cancel a visa, the decision-maker or a tribunal on review will fall into error if it impugns or ‘goes behind’ the “essential factual findings” underpinning the conviction or sentence.” See also MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72].
[78] Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594 at [78] citing HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [191] “a convicted defendant who advances a contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying a conviction or sentence will not provide a logically probative basis upon which to doubt the veracity of those underlying findings.” HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 per Bromberg J at first instance at [78] cited in Minister for Home Affairs v Sharma [2019] FCA 597 at [20]. See also R v Olbrich (1999) 199 CLR 270 at [01] where it is said that, in passing sentence, “…the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.”
[79] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [41] where it is noted that a conviction or sentencing is probative of the findings on which it is based.
[80] HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77] and the discussion of that case in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72].
These propositions are reflected in comments of Branson J in Ali.[81] Her Honour considered that, as a consequence of certain policy considerations, the legislation under consideration by her (the Migration Act 1958) “…should be construed as requiring a decision-maker under …[the section of the Migration Act of concern] to treat a conviction and sentence… as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted…” .
[81] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [43].
The applicant having punched a person would appear to have been an essential fact underlying the 27 February 2008 assault convictions and, as such, not one which I am prepared to go behind absent its being established to lack veracity. That has not been established.
As for the 20 January 2009 assault conviction, the applicant was again taken to a police facts sheet, this time relating to events said to have occurred in May 2008.[82] In it, the applicant was said to have pushed someone in the chest. Again, the applicant did not disagree with the police description of events and indicated that he did not recall the incident. In the facts sheet, it is suggested that the applicant was intoxicated.
[82] RTB2, pp. 33-34.
As for the 22 January 2009 conviction for contravening a prohibition/restriction in an apprehended violence order (AVO), the applicant was again taken to a police facts sheet,[83] this time relating to events said to have occurred in June 2008. At that time, the applicant was the subject of an apprehended violence order made around one month earlier, in May 2008. The person protected under that order was the applicant’s then girlfriend, referred to in these proceedings as Ms W. As an aside, I note that the applicant’s evidence was that his relationship with Ms W lasted for almost three years, from around 2007 to 2010.[84]
[83] RTB2, pp.39-41.
[84] Transcript, p.24.
According to the police facts sheet, the order prohibited the applicant from approaching Ms W within 12 hours of consuming intoxicating liquor or illicit drugs.
The applicant gave evidence to the effect that the AVO was taken out because of a misunderstanding. He said he had not wanted Ms W to go overseas to collect her children from a previous relationship. He was, he indicated, concerned to protect her from her previous partner who was said to be threatening the children unless she came to collect them and bring them back to Australia. That description accords with one the applicant had given to a psychologist in 2018. The applicant is said to have then stated that:
“…one day when he came home, his girlfriend was preparing to travel overseas and retrieve her children from her violent ex-partner, to which, reportedly …[the applicant] did not agree with. The applicant said that he pleaded with the woman not to go as he believed her safety would be in jeopardy if she confronted her ex-partner. According to …[the applicant], his girlfriend insisted on leaving, then locked herself in the bathroom and before he realised what had transpired, the police was at their doorstep, arresting him for alleged assault, which he clarified did not occur. [The applicant]… said despite the fact that he did not assault her and that the woman fabricated this story, he was arrested and served eleven months in prison… never touched my girlfriend, why would she ruin my life like this?”[85]
[85] ATB7, pp.205-206 (psychological assessment report of S. Momartin, clinical psychologist).
On the material before me, it would appear that the applicant’s recollection of what transpired is confused. The relevant incident led to his conviction for contravening a prohibition/restriction in an AVO rather than assault, a conviction for which he was sentenced to one month in prison, not 11 months.
In any event, it was put to the applicant that in June 2008 he was intoxicated and aggressive towards Ms W. According to the police facts sheet, “…it was immediately clear that the Accused was intoxicated.”[86] The applicant did not deny this. When asked whether he was drinking alcohol at the time the applicant said “I drink wine (indistinct) but not really… I drink wine once for a while, but not like…”.[87] Before the Tribunal, the applicant said that he was always going to work and he would come home and have one or two beers. I note that the police facts sheet states that the applicant was unemployed at the relevant time. When questioned as to Ms W’s statement to the police at the time that he had drunk half a cask of wine, the applicant did not deny it but indicated that Ms W would say anything so that she could travel overseas to collect her children.
[86] RTB2, p.40.
[87] Transcript, p.14.
As I see it, the applicant sought to place a benign characterisation on his conduct while at the same time not directly refuting the accuracy of the description of the circumstances of his offending found in the police facts sheet. Insofar, however, as his evidence as to those circumstances does differ from that reflected in the police facts sheet, I prefer the latter evidence. As previously outlined, I found the applicant not to be an accurate historian. While, as suggested on behalf of the applicant, the probative value to be attributed to a statement made in police records is impaired by the failure to call its author to give evidence, that failure does not preclude the Tribunal from attributing some value to such statements.[88] In this regard, it is not incorrect to characterise police records as independent and authoritative sources of information. [89] The police are independent and the records are generally (and in this case are) relatively contemporaneous with the events described in them. (I note that the preference being accorded to police records relates to their use in describing the circumstances of the applicant’s June 2008 offending. Preference is not being accorded to police records generally so that, for instance, they are not being relied upon to establish that the applicant had engaged in criminal conduct for which he has not been convicted.[90])
[88] See, for example, Au and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4040 at [71].
[89] Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43 at [38], a decision concerning the use of police records in the context of the family violence consideration.
[90] See QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [74]-[75]. Hence, I have not treated as part of the applicant’s history of offending matters in respect of which the applicant has apparently been charged in Victoria: cf RSFIC [25b].
As for the 4 May 2009 convictions for assault and having custody of a knife in a public place, they relate to events that occurred in May 2008. The gist of the applicant’s evidence was effectively to deny any offending and that, on advice, he pleaded guilty despite not wanting to do so.[91] In an “Agreed Facts on Sentence” document,[92] however, the relevant events were said to have involved the applicant assaulting three people (including a woman),[93] including by punching one of them (a man), and then resisting arrest.
[91] ATB1, pp.3-4.
[92] RTB3, pp.51-54.
[93] See also RTB3, p.64-65.
I prefer the version of events outlined in the agreed facts document to that reflected in the applicant’s evidence. Moreover, I infer that the sentence imposed in respect of the relevant offending was, at least in part, based on those agreed facts. Like a conviction, a sentence is probative of the factual matters on which it was based.[94] While, as indicated earlier, the Tribunal can go behind such factual matters where (as here) the relevant offending is not a foundational element of the Tribunal’s jurisdiction, it should only do so insofar as their lack of veracity has been established. A lack of veracity has not been established in relation to the “agreed facts”.
[94] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [74].
As for the 17 August 2010 assault and larceny convictions, the applicant was taken to a “Facts for Purpose of Sentence” document relating to events said to have occurred in November 2009.[95] In it, the applicant was said to have a history of asking, while intoxicated, for money from a man (said to be 72 years of age) who lived in a boarding house. In terms of the incident in question, the applicant said that the man owed him money and he was just seeking to collect what was owed. On the basis of the document, it was put to the applicant that he had grabbed and pushed the man against a wall and punched him in the chest and taken $170 from the man. The applicant denied this.
[95] RTB2, pp.47-49.
I prefer the version of events outlined in the sentencing document to that reflected in the applicant’s evidence. I infer that the sentence imposed on the applicant for the relevant offending was, at least in part, based on the matters of fact outlined in the document. Moreover, the applicant’s version of events entails a denial of facts that are essential elements of the offending for which he was convicted. Again, while it might be that the Tribunal can go behind such facts, in this case it would not be appropriate to do so given that their lack of veracity has not been established.
As for the 8 August 2012 “Stalk/intimidate intend fear of physical/mental harm” conviction, the applicant was taken to a police facts sheet relating to an incident said to have occurred in March 2012.[96] On the basis of that facts sheet, it was put to the applicant that he attended at Ms T’s 83-year-old grandmother’s residence, yelled at the grandmother about Ms T (saying Ms T was a liar and that he was coming back to hurt her) and that, when the grandmother was on the telephone with Ms T, he grabbed the telephone from the grandmother. According to the applicant, however, the grandmother was happy to give him the telephone[97] and was not scared of him.[98] In response and again on the basis of the facts sheet, it was put to the applicant that the police had been unable to obtain a statement from the grandmother because she was “distraught, sobbing, unable to concentrate, and was petrified of…” him. The applicant’s reply to this was difficult to discern,[99] albeit that he thought it then appropriate to comment on Ms T having been with seven men and having eight children.
[96] RTB8, pp.148-149.
[97] In his September 2022 statement, however, the applicant accepted that he had tried to take the telephone away for the victim: see ATB1, p.7.
[98] In his September 2022 statement, however, the applicant said he understood that the victim must have been scared: see ATB1, p.7.
[99] See Transcript, p.18.
As he did in relation to his 22 January 2009 conviction for contravening a prohibition/restriction in an AVO, in large part the applicant sought to place a benign characterisation on his conduct, while at the same time not directly refuting the accuracy of the description of the circumstances of his offending found in the police facts sheet. Insofar, however, as his evidence as to those circumstances does differ from that reflected in the police facts sheet, I prefer the latter evidence. I do so for the reasons given earlier for preferring the version of events outlined in the police facts sheet relating to the applicant’s 22 January 2009 conviction.
Moreover, as with the 8 August 2012 convictions, it would seem that the applicant’s version of events entails a denial of facts that are essential elements of the offending for which he was convicted. The Tribunal will not go behind such facts given that their lack of veracity has not been established.
As for the 21 August 2013 convictions for assault and damaging property, the applicant was taken to a police facts sheet relating to events said to have occurred in a period of around three weeks, from late September 2010 to 22 October 2010.[100] On the basis of that facts sheet, it was put to the applicant that he punched a hole in the wall of the boarding house in which he was living and that he threw speakers at a fellow resident who he subsequently proceeded to grab, throw and hold down on the ground. At the hearing, the applicant’s response was unclear but, generally, he seemed to suggest that he did not do that which the facts sheet suggested he had done and for which he had been convicted, albeit his recollection of the events was not good.[101] Consistently with his apparent denial of the offending, in a statement lodged prior to the hearing, the applicant explained that he had made a hole in the wall of the boarding house to investigate a leak and effect repairs and that, as for the victim of the alleged assault, the applicant had told him to leave the applicant’s room and had grabbed the victim to effect that removal. This was after the applicant had taken the speakers “outside”.[102] The applicant was not interviewed by the police at the time of these events because he was said to be intoxicated.[103]
[100] RTB7, pp.131-133.
[101] Transcript, pp.19-22.
[102] ATB1, p.4.
[103] RTB7, p.133.
Again, insofar as the applicant’s evidence as to the relevant circumstances differed from that reflected in the police facts sheet, I prefer the latter evidence for the reasons given for preferring the version of events outlined in the police facts sheet relating to the applicant’s 22 January 2009 conviction.
Moreover, as with the 8 August 2012 convictions, the applicant’s version of events appears to entail a denial of facts that are essential elements of the offending for which he was convicted. The Tribunal will not go behind such facts given that their lack of veracity has not been established
As for the 21 August 2013 driving offence convictions, they relate to events of 24 August 2012 (sixteen days after the applicant was convicted and given suspended sentences for a range of offences)[104] and July 2013. I note that in the context of a police request that bail be refused it was submitted that:[105]
The accused is currently unemployed. He has provided police with several false address's and police are unable to determine where the accused resides. Whilst in police custody the accused was uncooperative and aggressive.
The accused has been, charged with various prescribed concentration of alcohol offences a total of four times. He has been charged with other driving offences including driving without ever holding a licence, drive whilst suspended and drive unregistered motor vehicle. The accused has also failed to comply with his bail on 5 separate occasions and has a total of 6 warrants issued for failing to appear and driving offences.
The accused shows a total disregard for Australian traffic law and no respect for the courts or police.
[104] G6, p.32.
[105] RTB8, p.153.
As for the 7 September 2016 convictions for driving whilst disqualified, driving under the influence of alcohol, resisting an officer in the execution of duty and not complying with a police direction, the applicant was taken to a police facts sheet relating to events said to have occurred in early January 2016.[106] On the basis of that facts sheet, it was put to the applicant that he was swerving on the road whilst driving a vehicle, that when pulled over by the police they could smell intoxicating liquor, and that he kept moving his arms and hands away when the police tried to put handcuffs on him. At the hearing, the applicant’s response was again unclear. He admitted to driving whilst disqualified. He denied, however, not only swerving on the road but also that he had been drinking at the time.[107] That latter denial is not only inconsistent with his convictions but also with statements made by the applicant in the past.[108] For reasons outlined in the context of the applicant’s 8 August 2012 convictions, to the extent of inconsistency, I prefer the version of events outlined in the relevant facts sheet.
[106] RTB9, pp.190-192.
[107] Transcript, pp.23-24; p.32.
[108] For example, see G8, p.40: in a statutory declaration made by the applicant in February 2018, in the context of referring to his September 2016 convictions, the applicant stated that he had “made the wrong decision to consume alcohol at the time I offended’. At G8, p.73, the applicant refers to “having broke from my treatment” and having “made an incredibly stupid decision”. Note also that the applicant’s explanation of the context of the offending appears to have changed. At the hearing, he suggested he was needed to fix the car after it had broken down when his wife was using it to go shopping (Transcript, p.23). In a personal circumstances form apparently completed in early January 2017, it was suggested that the offending occurred in the context of the applicant “doing some work with” his long term friend: G8, p.73.
Pausing there I note that, while the applicant did admit to some offending, he either denied or failed to acknowledge much of it. He did so despite its being said on his behalf that his criminal history “…is not in dispute”.[109] As was the case in the context of his July 2021 hearing before the Tribunal, with some exceptions, I find that the applicant “…did not accept responsibility for his offending behaviour.”[110]
[109] A SFIC [28].
[110] G25, p.290.
As for the seriousness of the applicant’s offending, he accepts that it, or at least certain of it, was serious. On his behalf, it is said that the “Applicant cannot and does not deny the seriousness of his conduct in driving while under the influence of alcohol and placing members of the community at risk.”[111]
[111] A SFIC [29].
I find that the applicant’s offending was not only serious, it was very serious. I do so in light of the factors to which I am required by Direction 90 to have regard[112] and to which I now turn.
Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[113]
[112] Direction 90, cl 8.1.1(1).
[113] Direction 90, cl 8.1.1(1)(a).
A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have, noting that the offending included crimes of violence and crimes of a violent nature against women, and that the applicant engaged in acts of family violence.
The applicant has multiple convictions for assault, including for an assault occasioning actual bodily harm.
The applicant has engaged in crimes of a violent nature against women. In this regard, reference is made to the applicant’s convictions in May 2009 for assault (which included an assault against a woman[114]) and in August 2012 for “Stalk/intimidate intend fear of physical/mental harm.” The applicant’s conduct that led to that latter conviction was violent. As already mentioned, it is said to have resulted in Ms T’s 83 years-old grandmother being petrified of the applicant, too distraught to make a statement to the police. In this regard, the concept of violence is not one that appears to have been the subject of exhaustive definition.[115] Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also "threats or menaces to induce fear and terror or to intimidate.”[116] That “violence” does not necessarily involve physical force is reflected in the Tribunal’s decision in Vu.[117] There, it was accepted that the concept of violence may encompass forms of non-physical harm, citing with apparent approval a 2011 decision of the Supreme Court of the United Kingdom[118] which was said to have decided that “the term ‘domestic violence’ included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.”
[114] RTB3, p.64.
[115] R v Butcher [1986] VR 43 at 48.
[116] Ibid at 53. JDVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 20 at [187] (omitting references). See also Breeze v R [1999] QCA 303 at [19] and R v Galas [2007] VSCA 304 at [31]-[32]. In Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305 at [38], it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so as to exclude “for present purposes threats and intimidation”.
[117] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 at [53]-[60].
[118] Yemshaw v Hounslow London Borough Council [2011] 1 WLR 433 at [55].
As for the applicant having engaged in acts of family violence, this is elaborated upon later when addressing the consideration directed specifically to such acts.
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against vulnerable members of the community (such as the elderly and the disabled) or government representatives or officials in the performance of their duties[119]
[119] Direction 90, cl 8.1.1(1)(b).
A characterisation of the applicant’s offending as at least serious is consistent with this factor.
The applicant’s offending included crimes against the elderly. Reference is made to his convictions in August 2010 for assault and larceny committed against a 72-year-old man and his August 2012 conviction for “Stalk/intimidate intend fear of physical/mental harm” involving an 83-year-old woman.
The applicant’s offending also included crimes committed against officials in the performance of their duties. Reference is made to the applicant’s convictions for resisting police in the performance of duty (in September 2016 and May 2009).
With the exception of certain crimes and conduct, the sentence imposed by the courts for a crime or crimes[120]
[120] Direction 90, cl 8.1.1(1)(c).
Even ignoring his offending involving family violence or violence against women, it is clear from the chart found at [53] above that the applicant has been sentenced to a term of imprisonment in respect of each of a number of offences.
In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[121] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[122]
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[123]
[121] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[122] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[123] Direction 90, cl 8.1.1(1)(d).
As noted earlier, in the less than 10-year period in which the applicant was free in the Australian community, he was a prolific offender. He was before the courts on around 16 occasions and has been convicted of numerous offences and sentenced to multiple terms of imprisonment.
I do not, however, consider that there is any trend of increasing seriousness in the applicant’s offending.
The cumulative effect of repeated offending[124]
[124] Direction 90, cl 8.1.1(1)(e).
The cumulative effect of the applicant’s offending has likely been significantly adverse to not only his victims but to the broader community. The type of harm he has caused is touched on later when discussing the nature of the harm that would be suffered were he to engage in further criminal or other serious conduct.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[125]
[125] Direction 90, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[126]
[126] Direction 90, cl 8.1.1(1)(g).
It has not been contended, and, subject to one qualification,[127] the material before me does not suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct[128]
[127] In a personal circumstances form completed in January 2017(G8, p.73), the applicant states that had previously received a warning, in March 2015. This presumably, is a reference to the notice the applicant would have received in 2015 about the mandatory cancellation of the visa initially issued to him in 2006: see G10, p.182.
[128] Direction 90, cl 8.1.2.
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.
In assessing risk, I am required by Direction 90 to have regard, cumulatively, to:
(a)the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct;
(b)the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved); and
(c)whether the risk of harm may be affected by the duration and purpose of the applicant’s intended stay, the type of visa applied for and whether there are strong or compassionate reasons for granting a short stay visa.[129]
[129] Direction 90, cl 8.1.2(2).
As to the nature of harm to individuals should the applicant engage in further criminal or other serious conduct, based on his history of offending and, in particular, his history of repeatedly driving a motor vehicle when affected by alcohol, individuals (being fellow motorists, their passengers, pedestrians and other road users such as cyclists) would be at real risk of suffering significant physical harm and possibly death.[130] As Judge Sides stated in sentencing the applicant in December 2013, the applicant posed and poses “a substantial danger to the community as well as himself when he got in behind the wheel in states of intoxication.”[131] Moreover, were the applicant to again engage in conduct of the type engaged in by him in the past, family members and others with whom the applicant came into contact, would be likely to suffer physical harm from being assaulted and, possibly, psychological harm resulting from the fear or threat of being violently assaulted.
[130] The applicant accepts that “drinking and driving is very risky” and that in doing so in the past “someone could have been killed”: see ATB1, p.9.
[131] G6, p.33.
As to the nature of harm to the Australian community should the applicant engage in further criminal or other serious conduct, again based on his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.
As for the likelihood of the applicant engaging in further criminal conduct, I am not satisfied that it is likely that he will do so. I find, however, that the risk of him doing so is significant. More particularly, that risk is moderate, not low.
Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[132]
[132] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[133] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[134] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[135]
[133] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[134] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.
[135] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[136] There it was said that:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity”.
[136] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574.
In Splendido,[137] Mortimer J stated that:
“The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending”.
[137] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
In Hughes,[138] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:
“Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
[138] Hughes v R [2017] HCA 20.
Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. I endeavour to do so now.
First, as mentioned earlier, in the less than 10-year period in which the applicant was free in the Australian community, he was a prolific offender, with his offending starting relatively shortly after he arrived in Australia. This is suggestive of an ingrained anti-social habit or habits, rendering him more likely to re-offend.
Once free in the community, the risk of the applicant succumbing to what appears to be habitual would be reduced were he to be remorseful for and have insight into the reasons for his offending. I find, however, that the applicant is not truly remorseful for (or at least for much of) his offending and lacks insight into it.
I mentioned earlier that the applicant does not accept responsibility for much of his offending conduct. The lack of insight inherent in that failure is evident from his various contextual explanations for that conduct.[139]
[139] That the applicant lacks insight is also reflected in an August 2016 decision not to recommend the applicant as being suitable for a community corrections order. It was then said that he minimised his offending, indicating depression, other individuals and circumstances as triggers for his actions such that he did not present with insight: RTB9, p.194.
In February 2018, the applicant appeared to attribute his offending conduct to mental health disorders suffered as a consequence of his having been assaulted in prison in May 2010. He said he suffered “severe head injuries and concussion” from the assault and that he (with my emphasis):
“…then developed and was diagnosed with schizophrenia and depression… After I developed my mental health conditions, I felt my life changed and deteriorated a lot. I was very scared to live normally and be outside too often, and would avoid going outside as much as possible. I had many dreams of being attacked and felt traumatised by what I went through. Things were different compared to before the assault when I lived a normal life and tried to make a living as best I could… I went to counselling because I found it hard to be outside and live a normal life after being assaulted, and I relied on alcohol to ease the pain.”[140]
[140] G8, p.41. See also the report of Joshua Hall, clinical psychologist, of October 2022 in which the applicant was said to have stated that he commenced psychiatric treatment in 2010 after the prison assault on him: ASTB2, p.25.
The applicant went on to explain that the mental health conditions he was then diagnosed with resulted in him being prescribed psychotropic medication, 'Seroquel.'[141]
[141] That the applicant considered Seroquel to be treatment for PTSD, depression and schizophrenia is also reflected in his personal particulars form of January 2017: see G8, p.75. This is consistent with Mr Watson-Munro’s evidence to the effect that Seroquel is primarily used to treat psychotic illness but can also be used to treat mood disorders such as depression and anxiety: Transcript, p.71.
There are at least two difficulties with this contextual explanation for the applicant’s offending. First, it does little to explain the applicant’s conduct prior to May 2010. Second, the applicant began taking Seroquel in around 2008 or 2009, well before the 2010 assault. In February 2019, the applicant was said to have stated that he began “…experiencing auditory hallucinations in 2008, and had been prescribed an antipsychotic medication (Seroquel) since 2008 by his General Practitioner.”[142] In June 2017, the applicant was said to have complained “…of hearing voices that started in 2009 in the context of heavy drinking and relationship problem” at which time he saw a psychiatrist and commenced on Seroquel.[143] In September 2017, the applicant is said to have stated that he has been hearing voices since 2008.[144] At the hearing, the applicant agreed that he commenced taking Seroquel in 2009.[145]
[142] G13, p.218; See also ASTB1, p.7: “He has been psychotropically medicated since 2009”.
[143] G8, p.55.
[144] ATB7, p.561.
[145] Transcript, p.36.
In August 2019, it was submitted that the applicant’s offending had to be considered in the context of his “previously undiagnosed and untreated mental health conditions… which were not known to” the applicant at the time of his crimes.[146] The applicant says that a lot of his offending occurred before he “…was medicated for my mental health.”[147] It was submitted that the applicant’s offending before he began engaging in consistent therapy and medical intervention for his mental health conditions ought be accorded little weight.[148]
[146] G12, p.206.
[147] ATB1, p.3.
[148] A SFIC [40].
The difficulty with this contextual explanation for the applicant’s offending lies in the fact that, as just mentioned, the applicant was being treated for mental health disorders as from 2008 or 2009, well before the majority of his offending. Moreover, in the context of providing his psychiatric history to a psychologist in September 2022, the applicant was said to have stated that he had not experienced significant symptoms since being diagnosed with schizophrenia and commencing anti-psychotic medication (which I infer to be a reference to Seroquel).[149]
[149] ASTB2, p.28.
Hence, in order for the non-refoulement obligations implied under the ICCPR to be engaged, there must be both a necessary and foreseeable risk of irreparable harm as a consequence of refoulement.
Direction 90 contains a description of a non-refoulement obligation and identifies the various sources of such obligations. In cl 9.1(1) of the Direction it is said that:
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
In light of what has just been said and without seeking to be exhaustive, non-refoulement obligations are engaged when forcibly returning a person to a country would:
(a)threaten the person’s life or freedom on account of his or her race, religion, nationality, membership of a particular social group or political opinion; or
(b)give rise to a necessary and foreseeable risk of irreparable harm (such as harm to the inherent right to life and harm by way of torture or by way of cruel, inhuman or degrading treatment or punishment).
A consideration of non-refoulement obligations is not only mandated (where relevant) by Direction 90. It may also be required because the Tribunal must consider the legal consequences of its decision.[388] In this regard, I note that non-refoulement is not the only matter of relevance (or potential relevance) when considering legal consequences. For instance, as a result of a decision to refuse to grant the applicant a protection visa, while in the “migration zone”, he will be unable to apply for another protection visa[389] (unless the respondent exercises a personal right to allow the applicant to do so[390]) or any other visa[391] (other than a Bridging R (Class WR) visa[392]).[393]
[388] Galuak v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 798 [55]: “…administrative decision makers who exercise powers to refuse or cancel visas on character grounds under s 501 of the Act must first consider the legal consequences that arise from their doing so”.
[389] Act, s 48A.
[390] Act, s 48B.
[391] Act, s 501E.
[392] Act, s 501E(2)(b) and Migration Regulations 1994, reg 2.12AA.
[393] Plaintiff M1 at [11].
The applicant’s refoulement, i.e., removal from Australia and forcible return to Ghana, would not, however, be a legal consequence of a decision not to grant him a protection visa, despite s 198(6) of the Act.[394] First, he has been found to be a person in respect of whom Australia owes protection obligations, in satisfaction of the criterion set out in s 36(2)(a) of the Act.[395] He would face “…a real chance of serious harm for reason of his membership of a particular social group – persons suffering from mental illness…”.[396] Second, he has not been found to be a person considered to be a danger to Australia’s security or to the Australian community, in satisfaction of the criterion set out in s 36(1C) of the Act. [397] Together those matters mean that a “protection finding” has been made for the applicant with respect to Ghana.[398] Hence, if a decision to refuse to grant the applicant a visa was made, the applicant’s removal under the Act from Australia to Ghana would neither be required nor authorised except in certain limited circumstances, none of which are presently applicable.[399]
[394] Act, s 198(6) “requires an officer to remove as soon as practicable an unlawful non-citizen who is a detainee who has made a valid application for a substantive visa that can be granted when he or she is in the migration zone and (relevantly) the visa has been refused and the application finally determined.”: see CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [47].
[395] G9, p.178.
[396] G9, p.177.
[397] G25, p.281.
[398] Act, s197C(5). Note that a reference to a protection finding in s 197C(5) includes a protection finding made before or after 25 May 2021: see Migration Amendment (Clarifying International Obligations for Removal) Act 2021, s 2.
[399] Act, s 197C(3).
As the applicant’s removal to Ghana will neither be required nor authorised under the Act,[400] a decision to refuse to grant him a visa will result in his detention,[401] detention that will continue until:
(a) a court finally determines his detention to be unlawful;[402]
(b) another country is found that is willing to receive him;[403]
(c) he is invited to apply for a Bridging R (Class WR) visa;
(d) the respondent grants him another visa in exercise of a personal power;[404]
(e) the respondent makes a residence determination[405] in exercise of a personal power;[406]
(f) the respondent comes to be satisfied that the applicant is no longer a person in respect of whom a “protection finding” would be made;[407] or
(g) the applicant asks to be removed.[408]
[400] Act, s 198.
[401] Act, ss 189 and 196. Absent a visa, the applicant will be an “unlawful non-citizen”. As such “If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen,” the officer must detain the person.
[402] Act, s 196.
[403] I note the reference to the difficulties of having the applicant removed to third countries within the Economic Community of West African States made on behalf of the applicant: see ASFIC [75].
[404] Act, s 195A.
[405] Act, s 197AB.
[406] Act, s 197AF.
[407] Act, ss 197C(3)(c)(ii), 197D(2) and 197D(6).
[408] Act, s 197C(3)(c)(iii).
None of these reasons for ending the applicant’s detention currently apply (and, as noted by the respondent, there is no evidence before the Tribunal at this time that the respondent is considering taking any of the steps just mentioned).[409] Moreover, I am not satisfied that any of these reasons are likely to come to apply soon, within any particular period or at any particular time.[410] Given this, like the applicant in BNGP,[411] the applicant faces the “prospect of immigration detention for an indefinite period”,[412] that is, without a currently known end point.[413]
[409] Transcript, p.108.
[410] See a similar conclusion arrived at in LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [149]. This is so despite the government’s expressed position being that held “…detention in an immigration detention centre is a last resort for the management of unlawful non-citizens.”: see the Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth) at p.13.
[411] BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878 (“BNGP”).
[412] See BNGP at [43]. See also WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [153], which suggests a characterisation of such detention as indefinite.
[413] LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [161].
Detention for an indefinite period, and, indeed, the prospect of it, is likely to have severe adverse consequences both for the applicant and certain others, consequences which I will address shortly. It is also submitted, however, that detention of that nature will have adverse consequences in that it would see Australia in breach of certain international obligations.[414]
[414] A SFIC [70].
In the context of that submission, mention was made of Article 9 of the ICCPR which proscribes “arbitrary” detention and Article 7 of the ICCPR which proscribes “cruel, inhuman or degrading treatment or punishment.” In this regard, it was submitted that the United Nations Human Rights Committee has found indefinite detention of refugees to be arbitrary detention and that the circumstances of detention reflected treatment contrary to Article 7.
I make no finding in relation to these particular submissions,[415] for two reasons.
[415] Albeit that I note that in a recent Tribunal decision it was said that detention of an illegal non-citizen cannot be said to be arbitrary: LVMF and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2471 at [157], albeit in the context of an applicant who was stateless.
First, without finding that it is so, it nevertheless might be the case that Australia will be in breach of at least certain of the obligations identified by the applicant as a result of the applicant being detained (or facing the prospect of being detained) for an indefinite period. In the context of submissions similar to those now made on behalf of the applicant, Jagot J in BNGP characterised the proposition that Australia would be in breach of certain international obligations as contestable and not manifestly correct.[416] An arguable or possible legal consequence of a decision to refuse to grant the applicant a visa is not, however, one that that the Tribunal is required to take into account. Instead, the legal consequences that must be taken into account are “…the inevitable and direct legal consequences of the exercise of the statutory power in question”[417] (or, possibly, direct and immediate statutorily prescribed consequences[418] or legally proximate consequences[419]). Australia’s breach of the identified obligations is not such a legal consequence.
[416] BNGP at [44].
[417] BNGP at [51]: Legal consequences are distinguished from claims that clearly arise or are raised squarely on the material before the Tribunal, with the concept of a “claim” being referable to an assertion of fact: see CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [88]-[89].
[418] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]. See also Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 (Robertson, Moshinsky, Bromwich JJ) at [136]. Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653 at [54].
[419] DLJ18 v Minister for Home Affairs [2019] FCAFC 236 at [5]-[15] per Flick J; [85] per Snaden J and [24] per Bromberg J.
Second, having regard to the High Court’s recent decision in Plaintiff M1,[420] I am not required to make, and do not make, any findings in relation to the relevant submissions. International obligations unenacted in Australian law are not mandatory relevant considerations.[421]
[420] Plaintiff M1.
[421] While in Plaintiff M1, the provision of the Act of particular concern was that found in s 501CA(4), it is “closely analogous” to that now addressed (s 501(1)) so that statements made in Plaintiff M1 are “equally applicable”: see XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] FCA 646 at [47].
As just mentioned, detention for an indefinite period, and, indeed, the prospect of it, is likely to have severe adverse consequences for the applicant.
First, detention is adverse for the applicant’s mental health. According to Mr Hall, the applicant’s PTSD symptoms will persist and his mental health will deteriorate for so long as he remains in detention.[422] Mr Hall opines that the applicant “…is unlikely to recover from PTSD whilst he remains in detention… his inability to fulfil important cultural expectations related to his role as a father and husband are contributing to negative cognitions about himself, beliefs of failure and hopelessness, as well as resulting in frequent and intense feelings of shame, guilt, and sadness. For this reason, his symptoms are likely to continue to deteriorate as long as he remains in detention and separated from his wife and daughter.”[423] The applicant’s condition was said by Mr Hall to have “…continued to deteriorate due to the compounding impact of immigration detention.”[424]
[422] ASTB2, p.26.
[423] ASTB2, p.29.
[424] ASTB2, p.29.
Mr Hall’s opinion in this regard is echoed in not only his oral evidence before the Tribunal[425] but also in earlier reports of Ms Aiello. In her March 2021 report, she opined that the applicant’s symptoms of PTSD, anxiety and depression “…are perpetuated and exacerbated by the detention environment and it is unlikely his mental health will improve whilst he remains in…” detention.[426] Long-term detention was said by Ms Aiello to have had “a significant detrimental impact” on the applicant’s mental health.[427] Before the Tribunal in June 2021, Ms Aiello apparently stated that “….there was a lot of stress on the Applicant if he is in a detention environment and she felt that if he were forced to stay in such an environment indefinitely, it would be very detrimental to his mental health.”[428]
[425] Transcript, pp.47-50.
[426] ATB6, p.97.
[427] ATB6, p.104.
[428] G25, p.288.
The proposition that the applicant’s mental health has been deteriorating while in detention is lent credence by the results of testing undertaken by Mr Hall. Those results suggested that in the 18-month period preceding the testing the applicant had suffered, while in detention, a clinically significant increase in symptom distress and deterioration of his condition.[429]
[429] ASTB2, p.27.
I note that Mr Watson-Munro thought the applicant’s mental health may have improved while in detention. His view in this regard was, however, based on information provided by the applicant to the effect that his daily Seroquel dose had been reduced from 600mgs to 200 mgs.[430] As indicated earlier, that information would appear to be incorrect.
[430] ASTB1, p.12.
Quite apart from the impact of ongoing detention on the applicant’s mental health, in detention the applicant would be denied freedom of movement. His capacity to liaise with family and friends would be constrained, as would his capacity to implement any plans he might have had for his future. The applicant would continue to be deprived of his liberty “… one of the most basic human rights and fundamental freedoms known to the common law.”[431] As was said by the Tribunal in its July 2021 decision,[432] “[i]ndefinite detention is not to be taken lightly. It is certainly a bleak prospect which cannot be easily dismissed in a compassionate society which values human rights.” Lastly, I note that the applicant is said to experience difficulties (including physical health complications) in detention due to problems in catering to what are said to be his food allergies.[433]
[431] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124].
[432] G25, p.299.
[433] A SFIC [72].
As characterised by the applicant, being in detention indefinitely “…would mean that my daughter would always have to see me in detention. This would mean that I would never be able to live with my wife again. It would be horrible being locked up all the time with no exit. Being in detention indefinitely in Australia would kill me.”[434]
[434] ATB1, p.21.
Conclusion
Insofar as Australia’s non-refoulement obligations find expression in domestic law, a decision to refuse to grant the applicant a visa will not result in a breach of those obligations. His removal from Australia is neither required nor authorised under the Act. As things currently stand, he will not be refouled.
Given this, I find that the international non-refoulement consideration not to be of relevance in this proceeding.
Absent removal of the applicant from Australia (i.e., absent him being refouled), he will face detention for an indefinite period. While not a consideration of non-refoulement, this nevertheless weighs against an exercise of the discretion to refuse to grant the applicant the visa for which he applied.
Given that the consequences for the applicant of detention for an indefinite period are likely to be seriously adverse, the weight I attribute to that consideration is significant.
Extent of impediments if removed[435]
[435] Direction 90, cl. 9.2.
In the circumstances, if relevant, Direction 90 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to Ghana, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Ghana), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Ghana.
This consideration, concerned as it is with impediments the applicant may face if removed from Australia, is not relevant in this proceeding. As outlined when addressing non-refoulement, the applicant’s removal from Australia to Ghana under the Act is neither required nor authorised.
The approach of both parties to this consideration is, as I see it, consistent with a finding that it is not relevant.
On behalf of the applicant, no reference was made to the consideration at the hearing. Although submissions about it were made in the A SFIC, they appeared to be intended to only apply if the applicant were to be removed from Australia “…in contravention of s.197C(3) of the Act.”[436] I have no reason to believe that the applicant would be removed from Australia in contravention of that section of the Act.
[436] A SFIC [73]-[75].
As for the respondent, it was submitted that the applicant “…cannot be removed to Ghana and this consideration should weigh neutrally on that basis.”[437]
Impact on victims[438]
[437] R SFIC [56].
[438] Direction 90, cl 9.3.
In the circumstances, Direction 90 requires that consideration be given to the impact of a decision under s 501 of the Act on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
Again, I find that this consideration is not relevant in this proceeding. I note that neither party contended that it was.
Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[439]
[439] Direction 90, cls 9.4, 9.4.1 and 9.4.2.
I address this “other consideration” by reference to two subsidiary considerations.
The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.
Strength, nature and duration of ties[440]
[440] Direction 90, cl 9.4.1.
As to this first subsidiary consideration, in the circumstances, it requires that regard be had to any impact of a decision to refuse to grant the applicant a visa on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[441]
[441] Direction 90, cl 9.4.1(1).
While not expressly required by Direction 90 to do so when dealing with a visa refusal decision, I will also consider in this context the strength, duration and nature of any “other ties” that the applicant has to the Australian community, having regard to how long he has resided in Australia, and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[442]
[442] Direction 90, cl 9.4.1(2).
The applicant’s immediate family includes (and possibly comprises) Ms X, Ms K, his father and his siblings (including step-siblings).
As for Ms X, a decision not to grant the applicant a visa will operate to deny her the opportunity afforded by physical proximity to develop further her relationship with the applicant. It would also be emotionally distressing for her, something which, of itself, might have a significant, adverse effect on her given what I find to be her emotionally fragile state.
In this regard, Ms X’s evidence was, in effect, that she is in need of the applicant’s physically proximate support, especially emotional support,[443] having suffered the loss of a father and son while her husband was in detention. Her need for the applicant’s support is likely exacerbated given her self-reported and diagnosed mental health issues. In 2019, Ms X spoke of experiencing “a mental breakdown with all the stress”.[444] In a May 2021 letter, her general practitioner stated that she is receiving counselling for her “complex mental trauma and depression”.[445] In a June 2021 letter, a clinical psychologist stated that Ms X was referred to him “reporting clinically significant post traumatic and depressive symptoms.”[446]
[443] The applicant did suggest that Ms X suffers a material financial impact by reason of his incarceration and detention but there is no evidence before me of his having been a material financial contributor in the context of their relationship: G8, p.74.
[444] G16, p.238 (email of July 2019).
[445] ATB2A, p.56.
[446] ATB2E, p.69.
A submission was made on behalf of the applicant which was based on Ms X being of Aboriginal descent. Being of such descent, she is said to “…belong to the class of person identified by a majority of the High Court as having an inseparable connection to Australia.”[447] It was then submitted that the applicant’s connection to a person who belongs to that class of person “…elevates the strength of his ties to Australia.”[448]
[447] A SFIC [79].
[448] Ibid.
I reject that submission. I am not satisfied that the nature of Ms X’s connection to Australia has any effect on the strength of the applicant’s ties to Australia. The applicant simply submitted that it had such an effect without identifying why it did.
As for the impact on Ms K of a decision to refuse to grant the applicant a visa, that has been addressed when considering the best interests of minor children in Australia. In that context, I concluded that such a refusal would not be in the best interests of Ms K but the effect on her of the resultant separation from the applicant is unlikely to be significant.
As for the applicant’s father, for the reasons mentioned earlier, I have found their relationship is not a close one. Given this, a decision to refuse to grant the applicant a visa is unlikely to have a material adverse impact on the father. In this regard, in the father’s undated, single page, letter of support the father only identifies Ms K as a person who will be affected by the applicant’s absence: his “…absence will impact his Australian daughter”.[449]
[449] ATB1, p.31.
As for the applicant’s siblings, I am not satisfied that a decision to refuse to grant the applicant a visa will have any impact of significance on them. As mentioned earlier, there is little in the material before me supportive of the applicant’s characterisation of his relationship with them as being close or strong, noting that none of them has provided a statement in support of the applicant in this proceeding and that the father only identified Ms K as a person likely to be impacted by such a decision.
It might be that the applicant seeks to have Ms X’s children, Mr X1 and Ms X2, treated as members of his immediate family given his characterisation of the relationship he has with them as close or quasi-parental (and noting Ms X’s statement that “my family is his family”[450]). Again, however, I am not satisfied that a decision to refuse to grant the applicant a visa will have any impact of significance on Mr X1 or Ms X2 or on any of their respective children. For the reasons mentioned earlier, I am not satisfied that the applicant has a close relationship with any of them.
[450] ATB2, p.52.
As for the strength, duration and nature of any “other ties” that the applicant has to the Australian community, they are not extensive. In this regard, I adopt a finding made by the Tribunal in July 2021 to the effect that, with the exception of Ms X and Ms K, “…the applicant has not developed close links either through work or socially within the Australian community”.[451] As was the case when before the Tribunal in 2021, only one person in the general community provided evidence in the applicant’s favour.[452]
[451] G25, p.300.
[452] ATB3, p.70.
In considering the applicant’s other Australian ties, I note that Direction 90 requires that regard be had to “…how long the non-citizen has resided in Australia,” while “…less weight should be given where the non-citizen began offending soon after arriving in Australia; and … more weight should be given to time the non-citizen has spent contributing positively to the Australian community.”[453]
[453] Direction 90, cl 9.4.1(2)(a).
The applicant has lived in Australia for roughly 16 of his 40 years. He started offending relatively shortly after his arrival in Australia (noting that his February 2008 assault convictions were with respect to offending that occurred in December 2007, around 13 months after the applicant arrived in Australia).
I am not satisfied that the applicant has spent a significant part of his time in Australia making a positive contribution. While I accept that the applicant has made some contributions to the community, insofar as his evidence was intended to suggest that those contributions have been significant, I do not accept that to be the case.
A large portion of the applicant’s time in Australia has been spent in prison or detention. He claims to have made positive contributions when free in the community, however, by participating in community events.[454] That participation is not described in a way suggestive of any contribution other than that made simply by attendance. In terms of employment, I am not satisfied that the applicant has made any contribution of significance. As outlined earlier, the applicant says he has “done a lot of temporary work” and has had many casual jobs “…construction, chemist warehouse, car wash, packing…”, but is unable to remember details of them, though he does recall working for a courier business for around eight months.[455] To a psychologist in February 2019 the applicant “…described periods of employment in the construction industry, on a farm, at a car wash, and in a meat packaging business. He also worked full-time for … a courier company, for eight (8) months…”.[456] I note that in his September 2022 statement, in seeking to explain his excessive alcohol consumption, the applicant stated that he had no job and that his life consisted of “just buying food to eat at home. I was just at home all the time.” [457]
[454] G8, p.74: “I have always participated with my community…”.
[455] ATB1, p.2 and G8, p.40. See also ASTB2, p.24: “…he worked a series of inconsistent casual jobs after his arrival in Australia, including working at a car wash, various construction related jobs and working at a meat factory.”
[456] G13, p.215.
[457] ATB1, pp.9-10. In August 2016 the applicant was said to be working as a removalist: G8, p.57.
What has already been said addresses the strength, duration and nature of any family or social links of the applicant with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Impact on Australian business interests[458]
[458] Direction 90, cl 9.4.2.
As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.
This subsidiary consideration is not relevant in this proceeding. Neither party contended that it was.
First, given the findings made in the context of the non-refoulement consideration, we are not here dealing with a situation where the applicant will not be allowed to remain in Australia.
Second and more significantly, on the material before me, there is nothing to suggest that any Australian business interests will be materially affected by a decision to refuse to grant the applicant a visa and thereby prevent him from being (or materially impair his capacity to be) engaged by, assist or establish an Australian business.
Conclusion
I find that the links to the Australian community consideration weighs in favour of not exercising the discretion to refuse to grant the applicant a visa.
The applicant has deep links with the Australian community through Ms X. There is a real prospect of her being significantly adversely affected by a decision to not grant the applicant a visa even though, from her perspective, such a decision will not materially change the status quo (given that the applicant’s removal from Australia will be neither required nor authorised under the Act).
While the applicant has links to the Australian community are deep, they are not extensive. Moreover, I am not satisfied that the applicant has made positive contributions of any significance to the community.
Given these matters, I attribute moderate weight to the links to the Australian community consideration.
CONCLUSION AS TO WHETHER TO EXERCISE DISCRETION AND REFUSE GRANT OF VISA
In considering whether to refuse to grant the applicant a visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or in relation to which I have not made findings:
(a)Weighing in favour of a decision to refuse to grant a visa are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct (to a significant extent), family violence (to a moderate extent) and expectations of the Australian community (to a significant extent).
(b)Weighing against a decision to refuse to grant the applicant a visa is the primary consideration as to the best interests of minor children in Australia (to a slight extent), and the other considerations concerning non-refoulement obligations (encompassing issues concerning detention) (to a significant extent) and the applicant’s links to the Australian community (to a moderate extent).
Of the relevant considerations, most weigh in favour of a decision to refuse to grant the applicant a visa. Moreover, three of the four primary considerations weigh in favour of such a decision, two to a significant extent and one to a moderate extent, in circumstances where, as I see it, the general position under Direction 90 which has the primary considerations being given greater weight than the other considerations is not displaced.
In these circumstances, a decision to exercise the discretion under s 501(1) of the Act to refuse to grant the applicant a visa is the correct or preferable one.
Decision
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test and, if not so satisfied, whether it should refuse to grant the visa for which he applied.
I am not satisfied that the applicant passes the character test.
Further, the grant of the visa for which the applicant applied should be refused.
Accordingly, I affirm the decision under review.
I certify that the preceding 332 (three hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
............................[SGD]............................................
Associate
Dated: 2 March 2023
Dates of hearing: 23 and 24 November 2022 Counsel for the Applicant: Michelle Yu Solicitors for the Applicant: Legal Aid NSW Advocate for the Respondent: Adam Cunynghame Solicitors for the Respondent: Sparke Helmore
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