XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2357
•15 July 2021
XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2357 (15 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2697
Re:XTLP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:15 July 2021
Place:Sydney
The correct or preferable decision is to affirm the decision under review, that being the decision of the delegate dated 14 April 2021 to exercise its discretion to refuse to grant the Applicant a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).
...............................[SGD].........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – exercise of discretion to refuse to grant protection visa – failure to pass the character test – Ministerial Direction No. 90 applied – nature and seriousness of offending conduct – risk of reoffending – where offending very serious – protection of the Australian community – family violence committed by the non-citizen – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – where non-refoulement obligations applied – where prospect of indefinite detention – ties to Australia – impediments to removal – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Love v Commonwealth (2020) 94 ALJR 198
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
2021 Admission Ceremony Speech, The Honourable T F Bathurst AC, Chief Justice of NSW (19 March 2021)
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
15 July 2021
BACKGROUND
The Applicant is a 38-year-old citizen of Ghana. He arrived in Australia on 2 December 2006 as the holder of a Child (Migrant) (Subclass 101) visa and has resided in Australia since that time.
The Applicant’s Nationally Coordinated Criminal History Check reveals an extensive history of criminal offending beginning very soon after his arrival in Australia, with his first convictions in February 2008 for two counts of common assault.
Relevantly, on 21 August 2013, the Applicant was convicted of a raft of offences in the Parramatta Local Court for which he received the following sentences of imprisonment:
(a)for the offences of drive while disqualified from holding a licence and two counts of drive with middle range PCA, he received 6 months’ imprisonment (reduced from 9 months on appeal);
(b)for drive with high range PCA – 2nd off, the Applicant was sentenced to 18 months’ imprisonment;
(c)for a further two counts of fail to appear in accordance with bail undertaking, he was sentenced to 6 months’ imprisonment; and
(d)the offences of common assault, two counts of destroy or damage property, fail to appear in accordance with bail undertaking and stalk/intimidate intend fear of physical/mental harm were called up for breach of a good behaviour bond imposed by the Bankstown Local Court on 8 August 2012, and the Applicant was sentenced to serve 12 months’ imprisonment.
On 6 December 2016, the Applicant’s Child visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). His request for revocation was not made within the statutory timeframe and was determined to be invalid.
On 9 February 2018, the Applicant lodged an application for a Protection (Class XA) visa, which is the subject of the present application. A delegate of the Minister found, on 6 December 2018, that the Applicant was not a person in respect of whom Australia had protection obligations. On 11 March 2019, the Migration and Refugee Division (‘MRD’) of the Tribunal set aside the delegate’s decision and remitted the matter for reconsideration with a direction that the Applicant satisfied paragraph 36(2)(a) of the Act.
On 1 May 2019, the Department invited the Applicant to comment on information it had received in relation to his convictions and sentencing history, and an incident in immigration detention, and the possibility that he may not satisfy s 36(1C) of the Act. The Applicant’s lawyers responded to that invitation on 6 May 2019.
On 16 May 2019, a delegate of the Minister conducted an assessment of the Applicant against ss 36(1B) and (1C) of the Act, finding that the Applicant satisfied both criteria. On 16 July 2019, the Department notified the Applicant that consideration would be given to refusing the grant of the visa under s 501(1) of the Act (‘NOICR’). The NOICR invited the Applicant to comment on whether he passed the character test, and whether the decision-maker should exercise their discretion to refuse to grant the visa.
On 12 August 2019, the Applicant’s lawyers responded to the NOICR, enclosing, among other documents, the personal circumstances form previously provided to the Department as part of his invalid revocation request.
Under cover of a letter dated 16 December 2019, the Department invited the Applicant to comment on further information it advised may be taken into account in considering whether to refuse to grant the visa. That information consisted of an incident report of an incident that occurred in immigration detention on 26 February 2019. The Applicant’s lawyers responded to that invitation on 19 December 2019, by which the Applicant denied significant aspects of the incident report.
On 14 April 2021, a delegate of the Minister decided under s 501(1) of the Act to refuse the grant of the visa. The Applicant was notified of that decision on 22 April 2021.
On 28 April 2021, the Applicant applied to the Tribunal for review of the delegate’s decision.
ISSUES
It is agreed between the parties that the Applicant does not pass the character test set out in s 501(6) of the Act as he has a “substantial criminal record” in accordance with the definition in s 501(7).
Therefore, the issue for the Tribunal’s determination is whether it should exercise its discretion to refuse to grant the Applicant a protection visa under s 501(1) of the Act, having regard to the considerations prescribed by Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
THE LAW
There are a number of relevant principles contained in Clause 5.2 of Direction 90 that I have considered as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Direction 90 sets out primary and other considerations that must be considered, where relevant, when deciding whether to refuse to grant a visa under s 501(1) of the Act. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not properly be viewed as “secondary”; in certain cases, other considerations may outweigh primary considerations.
The primary considerations in Direction 90 are as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence committed by the non-citizen;
(c)best interests of minor children in Australia affected by the decision; and
(d)expectations of the Australian Community.
Direction 90 also sets out other considerations that must be taken into account, which include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
EVIDENCE
The Applicant
The Applicant filed two statements with the Tribunal dated 27 May 2021 and 18 June 2021.
When questioned about his daughter, KK, the Applicant said that he had been in a relationship with her mother, TK, and that KK was taken away because of the mother in around 2012. KK was now in state care. The Applicant was taken into immigration detention about five years later but said he visited her when he could and that he was trying to rehabilitate himself before taking care of her again. He said he was not ready to “get her back”.
The Applicant was asked about a report of Ms Teresa Absalom dated 13 June 2017. Ms Absalom is a psychologist at IHMS. In her report, Ms Absalom says that the Applicant told her that he was in a relationship with a difficult girl. He wanted to leave her, but she told him that she was pregnant. He stayed with her because of the baby but admitted being abusive. He said he started drinking because of his partner and that he was ashamed of his behaviour. The Applicant told Ms Absalom that he did not drink alcohol to excess prior to this toxic relationship. He said that TK had spent all his money and that he was being blackmailed. During the relationship he would drink a carton of beer a day.
The Applicant said he was still drinking heavily after his relationship with TK ended and that he had started rehabilitation when he was with PD, his current wife. He said that PD understands him and loves him and that is why he is trying to rehabilitate. He said he “needs a second chance”.
The Applicant said in response to a question from the Counsel for the Respondent that he had not consumed alcohol since 2016.
When questioned about an incident noted in a Serco report dated 26 February 2019 where the Applicant allegedly made threats to a Serco staff member’s life and against his family, he said that he recalled the incident. He said it occurred at the time of the anniversary of the death of his stepson, DD (who died in police custody in February 2019). The Applicant said that his statement of 27 May 2021 had been prepared after a long conversation with “Katie” from Legal Aid that took place “a couple of months ago”.
The Applicant was questioned about an incident where he was charged with 3 counts of common assault, one count of resist officer in execution of his duty and one count of custody of knife in public place. The incident occurred at the boarding house where he was living in Chippendale on 20 May 2008. He said that he had “not done anything wrong”. He said that he had entered a guilty plea because he did not understand the law and was advised by his lawyers to plead guilty. The Applicant said that he did not have a knife in his backpack as recorded by police and for which he was convicted. He said he would take responsibility for what he had done but not for what “he did not do”.
When questioned about his relationship with a former partner, DW, the Applicant said that at the time he was in a relationship with her he did not drink every day but drank only occasionally. He accepted that an apprehended violence order (‘AVO’) had been taken out against him to protect DW and that he had been convicted of breaching the AVO on 5 June 2008. He said that the AVO had been taken out by the police.
The Applicant was taken to paragraph 28 of his statement of 27 May 2021 in relation to an incident in Liverpool where the Applicant had punched a hole in the wall and assaulted another resident of the boarding house in which he was residing. The Applicant said that he disagreed with the police record of events and that he was not drunk at the time. He said that he entered a guilty plea because he just wanted to “put everything behind him and move on”.
The Applicant was questioned about an incident which occurred on 19 March 2012 involving the grandmother of his partner, TK. He said he blamed TK for the incident. He had entered the grandmother’s house shouting and waving his hands about. The grandmother was 83 years old at the time and was left shaking and very upset. The Applicant said he was drinking all the time he was with TK. When asked about the incident with the grandmother he said that he did not do it.
The Applicant said that he had experienced a sense of unfairness towards him every day throughout his life. He said that he did not recall ever having hit anyone and said that he had a big voice and tended to talk very fast, which people may find intimidating.
The Applicant agreed with the police version of events in Boggabilla which led to the convictions which resulted in him being sent to immigration detention.
Evidence of PD
PD is the Applicant’s current wife. She provided two statements to the Tribunal dated 27 May 2021 and 21 June 2021.
PD had been employed by the Department of Family and Community Services for 15 or 16 years. Accordingly, she felt she had an understanding of what it must have been like for the Applicant when his child was taken away and placed in state care. She gave evidence as to the effort she had made to ensure that there was regular contact with KK and said it was their dream for KK to be able to come home. Bringing her home was said to be “one of their goals”.
PD was questioned about her statement of 27 May 2021, specifically paragraphs 21 to 24, where she refers to the Applicant’s former partner as “crazy”. She did not recall the Applicant ever telling her that he was drinking a lot during his relationship with TK.
PD did not recall the circumstances of the last occasion on which the Applicant was convicted of drink-driving.
She said the Applicant had suffered from a great deal of trauma and that the Applicant had sought treatment of his own accord which was a “very proud moment” for her. She said that they had a shared commitment in relation to the future.
In response to a question from the Respondent’s Counsel, PD said that the Applicant had been subjected to injustice in the past and that people had been “racist towards him”. PD said that she knew injustice because she had experienced it herself.
PD said that in her view, the Applicant was not a violent person and that although she was aware of his convictions, including his breaches of AVOs, in her view that was “not the man she is married to”.
PD gave evidence that the Applicant is illiterate.
Evidence of SG
SG affirmed his statement dated 26 May 2021. He said the Applicant had always been an exemplary person, that he was logical, not a drug user and that he had never known him to be intoxicated.
The Applicant had assisted SG on many occasions to ensure that he himself did not relapse into drug use.
SG was not aware of the Applicant’s alcohol abuse in the past and said he had never heard of the Applicant being intoxicated.
Evidence of Ms North
Ms North is a Forensic Psychologist and made two statements dated 21 February 2019 and 22 June 2021.
Ms North said that she used the structured risk assessment tool HCR-20 (V3) in order to assess the Applicant’s likelihood of re-offending, and his criminal history had been factored into that assessment. Ms North noted that criminal history was a historical factor, whereas other factors were regarded as dynamic, that is, they can be addressed further.
Ms North said that the Applicant’s mental health was currently stable, but she felt that he could not progress further until he was released into the community. In her view, it was difficult to see how he was progressing whilst he was in an artificial, and in her view stressful, environment in immigration detention. Ms North noted that in the community there were a number of supportive factors for the Applicant, including his relationship with his wife and wider family.
When questioned about the Applicant’s offending history, Ms North said that she presumed he had been pressured to plead guilty by the legal system and also that she believed there was racial bias against the Applicant.
The Applicant was said to be “stable” with any risk of relapse able to be reduced if he were to engage in further counselling. Relapse into alcohol abuse was seen as the biggest risk factor. There would also be a risk if his relationship with his wife were to break down.
Ms North confirmed that in her view, the Applicant had started excessive alcohol consumption when he was in his quite dysfunctional relationship with TK and that he had started to consume alcohol excessively in about 2010.
Ms North said she was aware that KK was in state care, although she was unaware of day-to-day arrangements or where KK was currently located. She said that PD kept her up to date with what was happening and that at her last session with the Applicant he had told Ms North that KK was happy and progressing well. She did not know whether KK had been with the same family for all of the time that she had been in foster care.
In relation to previous failed attempts to deal with excess alcohol consumption, Ms North said that it was quite usual for people to have to make a number of attempts before they were successful.
In relation to future offending, Ms North felt that the Applicant was officially in the low to moderate risk range, but overall, she felt it was more low range.
Evidence of Ms Aiello
Ms Aiello is a clinical psychologist who gave evidence at the hearing. She provided two reports which were filed with the Tribunal, dated 8 March 2021 and 30 March 2021.
Ms Aiello said 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. She did not think he felt safe in detention and that he would have a much greater chance of rehabilitation if he were to be released into the community.
When questioned about the Applicant’s history, she said she did not know him at that time, so she was relying on what the Applicant had told her. She said that he had suffered from trauma as a result of the things he saw as a child in Ghana and that drinking heavily was a way of dealing with trauma.
Ms Aiello said it was outside her expertise to comment on the Applicant’s criminal history.
The Applicant’s mental health was said to have been getting worse in detention, with symptoms that may have been dormant now coming back.
The Applicant had expressed love and concern for his daughter and Ms Aiello understood that their relationship could be challenging. Ms Aiello said she had no reason to believe that the Applicant would relapse into alcohol use, and in her view, he was dedicated to getting on top of his problems and moving forward.
DISCUSSION
Primary Consideration A: Protection of the Australian Community
There are two issues to be considered in relation to this consideration. Firstly, the nature and seriousness of the Applicant’s conduct, and secondly, the risk of harm to the Australian community.
Nature and seriousness of the Applicant’s conduct
The Applicant has a very long criminal history which is detailed in the NSW Police Force Criminal History/Bail report, which is included as “Attachment A” to this decision, in order to avoid unnecessary repetition. It can be seen from the Attachment that a number of the Applicant’s offences involve violent conduct and family violence, which is viewed very seriously. These instances include a conviction on 8 August 2012 of stalk/intimidate with intent to cause fear of physical/mental harm, which related to the Applicant entering the home of his then partner’s 83-year-old grandmother and shouting at her, causing her to be very fearful. It is of concern that this offence was committed against a very vulnerable elderly woman, and although it did not involve any physical attack, it must nevertheless be regarded as very serious indeed. The Applicant was also convicted in April 2011 of a number of offences, involving breaches of an AVO, and there were also previous convictions for such behaviour.
On 8 August 2012, the Applicant was convicted on charges of common assault and 2 counts of destroy or damage property, for which he received a 12-month suspended sentence. This resulted from an incident which occurred at the boarding house in which the Applicant was living and involved the Applicant grabbing the victim around the neck and pinning him down, meaning he was unable to get away until a third party intervened. I also note that there was an earlier assault in December 2007, against 2 people in a boarding house in Chippendale where the Applicant was convicted of 2 counts of common assault against a couple and fined $2200.
The Applicant has also been convicted of a number of driving offences, including his latest convictions in 2016.
It is noted that most of the Applicant’s offences occurred when he had been drinking excessively.
It is not necessary to go through each of the Applicant’s offences in detail. What is important is that the Applicant started to offend almost immediately after he arrived in Australia in 2006, and he continued to offend until 2016. It is also noteworthy that when being sentenced, the sentencing judges expressed concern as to the Applicant being a danger to the community. For example, Judge Sides in confirming the Applicant’s convictions for 7 drink driving and other offences, found that the Applicant posed a “substantial danger to the community” when he “gets behind the wheel” in states of intoxication. The Applicant’s repeated driving offences and apparent disregard for the law in relation to driving without a licence and driving whilst intoxicated, must also be viewed very seriously.
During the hearing, it was put to the Tribunal that the crimes for which the Applicant was convicted should be looked at in light of his PTSD problems with memory, as well as his general disadvantage. As pointed out by Counsel for the Respondent however, the Tribunal is bound by the decisions of the criminal courts and has no jurisdiction to in any way “second guess” or seek to change the judgements, including sentencing remarks, of judges in the criminal law system (see HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [54]).
When looked at as a whole and taking into account the various considerations in Direction 90, it is quite clear that the Applicant’s offences must be regarded as very serious. They involve a number of assaults against people who were clearly frightened of him, a lack of respect for the police, as shown by his attempts to resist arrest, and the carrying of an offensive weapon. Further, the Applicant did not accept responsibility for his offending behaviour and at the hearing, blamed his victims, despite the fact he had been convicted of the offences.
Overall, the Applicant’s history of violence, both in a domestic setting and elsewhere, together with repeated driving offences, must be regarded as extremely serious.
Risk of re-offending
As previously noted, the Applicant has had a very long history of criminal offending. Much of his offending appeared to be related to the excessive consumption of alcohol, which was attributed to his suffering of previous trauma. It appears that he also used alcohol in particular to block out repressed memories and to cope with stress.
The Tribunal heard evidence from 2 experts in relation to the Applicant’s mental health conditions. Ms Herrero, a Counsellor, prepared a report for the Tribunal dated 20 June 2021. Ms Herrero gave evidence that she had had approximately 85 counselling sessions with the Applicant between November 2018 and the time of the hearing.
Ms Herrero said that the Applicant had remained alcohol free and she also said that he had been regularly taking his anti-psychotic medicine.
Ms Herrero felt that the Applicant’s alcohol abuse related to trauma he had experienced in Ghana, and that the trauma had also had a negative effect on his memory.
In response to questioning, Ms Herrero said that the Applicant had sometimes responded in very inappropriate ways, to what she felt was offensive, abusive and controlling behaviour on the part of his former partner in what was described as a “toxic” relationship.
Ms Herrero said that the Applicant was very remorseful for his aggressive responses and under questioning from Counsel for the Respondent, said that the impact of previous trauma in Ghana played a large part in the Applicant’s drinking and contributed to avoidant behaviour, so that he did not experience whatever was happening around him at the time.
In her supplementary report, Ms Herrero talked further about the Applicant’s toxic relationship and his maladaptive behaviours, including aggression and intimidation, for which she said he took full responsibility.
Further expert evidence was given by Ms North, a forensic psychologist, who prepared 2 reports dated 21 February 2019 and 22 June 2021.
Ms North gave evidence that in her opinion, the Applicant’s mental health was currently stable, and that it was impossible for him to further progress until he was released into the community. She said that he was currently in an artificial environment, which she considered to be stressful for the Applicant.
Ms North had assessed the Applicant using the HCR-20 (V3) structured assessment tool, which she said meant the Applicant was at low to moderate risk of re-offending. When I asked Ms North to further clarify what she thought the risk was, she said that in her opinion, the risk was low.
When questioned by Counsel for the Respondent, Ms North said that the Applicant had been pressured into pleading guilty on at least one occasion by his legal representative, and that she also felt there was some “racial bias” against the Applicant. The Applicant had also told her that some of the allegations against him were believed, even though they were untrue, as the complainants “were white”.
Ms North believed that the Applicant was stable and that he had a high level of support from his wife and family. She felt that the biggest risk factor for the Applicant was if he started to drink again. However, this risk could be ameliorated by further drug and alcohol counselling. In Ms North’s opinion, the risks of the Applicant drinking and re-offending would be increased if his relationship with his current wife were to break down.
When questioned about the Applicant’s failure to change his behaviour when he had had previous counselling in 2013, Ms North said it was quite common for persons suffering from addiction to need to make a few attempts at treatment before it took effect.
Ms North had taken into account all of the Applicant’s previous offences in making her assessment of the Applicant’s likelihood of re-offending.
The Tribunal also considered the evidence of clinical psychologist, Ms Yvette Aiello. Relevant to this consideration, Ms Aiello said that early trauma would affect the Applicant in later life and affect his capacity to cope with stress in relationships. She was aware of the Applicant’s criminal history but felt that it was outside of her expertise to make any comment.
Ms Aiello also felt that the Applicant’s alcohol use was a coping mechanism and noted that the Applicant had told her that he had been sober for some time after completing a drug and alcohol course. She said that there was no reason to believe that the Applicant would relapse into alcohol abuse.
In light of all of the evidence, I am of the opinion that the Applicant is at a moderate risk of re-offending. Despite the evidence of the various experts, the fact is that the Applicant was convicted of drink driving offences committed in January 2016 at the time that he was undergoing drug and alcohol treatment. A drug and alcohol counsellor’s report of 16 August 2016 recorded that the Applicant had been abstinent from alcohol for over 12 months, based on the Applicant’s self-reporting and the counsellor’s observations.
A pre-sentencing report dated 23 August 2016 reported that the Applicant had difficulty in accepting that his 2016 driving offences were serious and that the Applicant minimised his offending, blaming his mental health, other people and circumstances that may have been beyond his control. It was said that the Applicant did not have insight into his behaviour and that the Applicant had “not benefited from past supervision and has failed to develop the maturity and insight into the irresponsibility of his actions”. Further, a psychologist report which was commissioned by the Applicant in January 2019 recommended that the Applicant “re-engage” with drug and alcohol counselling to address his risk of relapse. It was said that this was possible within immigration detention, however there was no evidence before the Tribunal of any ongoing treatment.
Overall, based on the Applicant’s history of alcohol abuse, his continuing failure to take responsibility for his actions, which was demonstrated both in the various reports outlined above and in his evidence before the Tribunal, together with the lack of evidence as to ongoing treatment whilst he has been in detention there is a significant element of doubt as to the Applicant’s prospects of rehabilitation. There is also some uncertainty as to the relationship with his current partner, PD, based on the evidence of the AVO taken out on 28 April 2016, the circumstances of which were never satisfactorily explained. Given that the relationship with PD is said to be an important factor in the Applicant’s rehabilitation prospects, evidence of violence in that relationship, particularly when the Applicant was said to be abstaining from drinking at the time, must be viewed with concern.
Accordingly, based on the evidence the Tribunal could not be satisfied that the Applicant does not pose an ongoing risk of harm to the Australian community. In my opinion, that risk is properly characterised as moderate.
Overall, when both aspects of this consideration are taken into account, the evidence weighs heavily in favour of the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
Primary Consideration B: Family violence committed by the non-citizen
As set out in Attachment A, the Applicant has been found guilty of a number of serious incidents of family violence, including repeated breaches of AVO’s, both against his first partner, DW, and later against his then partner, TK. Of particular note, on 24 October 2011, the Victorian Police applied for and were granted an intervention order in respect of the Applicant, following complaints from TK that the Applicant had threatened to stab her with a knife.
There is also a police record of an AVO being taken out against the Applicant to protect his current partner, PD. The order was taken out by the police and served on the Applicant on 28 April 2016, with an expiry date of 26 April 2017. A copy of an excerpt from the relevant corrective services report dated 10 December 2016 is attached to this decision and marked “B”. Domestic violence is a very serious concern to the Australian community. To the extent that it was argued that the Applicant may have somehow been a victim because of the erratic or unacceptable behaviour of previous partners, particularly TK, such a proposition must be emphatically rejected. Firstly, TK was not the only victim. The victim in all cases was a woman who at a particular time was the partner of the Applicant. The Applicant was the undisputed perpetrator of the domestic violence and given the number of offences against various partners it may not be unfair to describe him as a serial offender.
One of the more disturbing incidents of domestic violence against a vulnerable woman, was the Applicant’s behaviour towards TK’s grandmother, an 83-year-old woman whom the evidence suggests, was quite frail. The Applicant barged into her home screaming, with his hands above his head and uttering threats against her granddaughter, TK. The Applicant is a large and heavily built man and his behaviour must have been extremely intimidating and very frightening and distressing to the grandmother, who was said to have been very shaken and distressed. It cannot be excused by saying the Applicant was drunk or upset at the time.
The fact that the Applicant was prepared to insinuate that his victims were to blame for his domestic violence reflects very badly on him. It is also of concern that both the Applicant and PD attempted to paint a picture of domestic bliss before the Tribunal, which is somewhat at odds with the fact that an AVO was taken out by the police on behalf of PD, shortly before the Applicant entered immigration detention.
The Applicant’s ongoing domestic violence, commencing in 2011 and continuing up until the last instance to have occurred in 2016, must be taken extremely seriously and weighs heavily in favour of the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
Primary Consideration C: Best interests of minor children
The Applicant has one minor child, KK, in Australia who was born in June 2012 to his former partner, TK. KK has been in state care from the week that she was born, primarily as a result of concerns about her mother, although the Applicant would clearly have been unable to care for her at that time.
I accept the evidence of the Applicant that he loves his daughter, that he has tried to maintain a relationship with her, and that at some stage in the future, he would like KK to live with him and PD. Such a wish was also expressed by PD, who appears to have been very supportive of the Applicant’s ongoing relationship with KK, including maintaining close contact with the child’s foster parents.
There was no evidence before the Tribunal that KK was not cared for very well by her foster parents and progressing well in their care.
The prospect of KK returning to live with the Applicant must be considered uncertain at best. For him to regain custody of his child would require him to successfully apply to a court in accordance with the provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW). There also appears to have been some doubt in the past as to whether the Applicant was KK’s biological father, and in late 2014, the Applicant is said to have told community corrections officers that he was not recorded as the child’s father on her birth certificate, and that he was undergoing DNA testing. No evidence was presented to the Tribunal as to the results of such testing but given his regular contact with the child, I accept that he is in fact the child’s father.
At best the Applicant could only be seen as playing a relatively minor role in KK’s life given the intermittent nature of contact between them, essentially “monthly under supervision”, and what would appear to be the settled nature of her current foster care arrangements.
I note that PD is said to have a very large family, some of whom may be minors, but there was no evidence before the Tribunal as to the Applicant playing any significant role in the lives of those children. Clearly however, the Applicant was affected by the death in police custody of PD’s son, DD, although it was unclear as to how close the relationship was between DD and the Applicant. There were very few details provided as to DD’s age or circumstances.
The Applicant did say that KK had visited him in detention but there was no evidence before the Tribunal as to exactly when this visit occurred, and whether there had been a pattern of ongoing visits.
There was no evidence that the Applicant contributed in any way to the financial support of his daughter.
Overall, although it is clearly in the best interests of children to have an ongoing relationship with their parents when this can be achieved safely, it is apparent that the Applicant’s role in KK’s life has been a relatively minor one for the whole of her life.
I give this consideration low to moderate weight against the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
Primary Consideration D: Expectations of Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court of the Federal Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
The Applicant’s extensive criminal charges, his offences against women, and his domestic violence indicate that he has repeatedly failed to abide by Australian law. Having regard to the provisions of Direction 90 and the Applicant’s offences, the Australian community would expect that the Applicant is not given the privilege of holding an Australian visa.
I give this consideration heavy weight in favour of the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
OTHER CONSIDERATIONS
International non-refoulement obligations
On 21 March 2019, the Applicant was the subject of a decision by the MRD of this Tribunal. The MRD remitted the Applicant’s Protection Visa application for reconsideration along with a direction that the Applicant satisfied section 36(2)(a) of the Act. It was found that the Applicant faced a real chance of serious harm if he were to be returned to Ghana because of his mental illness and the ongoing prejudices and superstitions towards mental illness which prevail in Ghana.
The Tribunal must therefore take into account and give due consideration to the legal consequences if it were to affirm the delegate’s decision (see NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [8]-[10], [17]; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]-[88]). In effect, this means taking into account the fact that if the grant of a visa is refused, he could face a period of indefinite detention. In particular, I note the provisions of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth).
The government’s policy position, is reflected in the amendments to section 197C and the insertion of section 36A into the Migration Act and can be found in paragraph 9.1 of Direction 90, which says that the existence of non-refoulement obligations does not preclude Visa refusal.
There was further guidance provided to the Tribunal in the Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), which at Page 13 states as follows:
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future. The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community.
The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (resident determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.
The Minister’s power to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances
It was put to the Tribunal on behalf of the Respondent that the Minister accepts that the result of the policy can be a very long period of arbitrary detention, and that the consequences for the Applicant of a long period of detention must be weighed against the risk of harm to the Australian community if the Applicant were to re-offend.
Such a balancing act is not an easy exercise. The Applicant has served a lengthy jail term in respect of his crimes. Indefinite 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. The Applicant has been assessed as being at a moderate risk of re-offending. The expert evidence is that a lengthy period of detention will exacerbate his mental health issues. I have found the Applicant to be at moderate risk of re-offending.
Indefinite detention also burdens and potentially harms those who may love and care for the detainee, especially children. This is relevant in the current case to PD and KK.
Whilst not determinative of the current case, I give this issue very heavy weight against the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
Links to the Australian community
I accept the evidence of a strong ongoing relationship between the Applicant and his wife, PD. I have previously raised the issue of the AVO taken out in 2016. As outlined previously, it appears that an AVO was taken out against the Applicant in favour of PD on 28 April 2016 and expired on 26 April 2017. The expert evidence was that the ongoing relationship between PD and the Applicant was very important to his prospects of rehabilitation.
PD gave evidence that she had a strong and loving relationship with the Applicant and the Applicant had been accepted as part of her immediate and wider family. She also understood the difficulties he faced including the experience of racism in the community. Throughout his marriage to PD, she commented that the Applicant was accepted into the wider Aboriginal community with its cultural history and traditions. Although it was claimed that this somehow gave the Applicant the same cultural connections to the land as people of Aboriginal descent, I do not accept that the remarks of the High Court in Love v Commonwealth (2020) 94 ALJR 198 apply to anyone other than those of direct Aboriginal descent.
The Applicant and PD had a shared sense of injustice which came across as both raw and painful. This is consistent with the lived experience of Aboriginal people, especially in relation to the law. In this regard, I note the remarks of Bathurst CJ at an admission ceremony in the NSW Supreme Court on 19 March 2021 where his Honour stated as follows:
As we gather here today, I would like to begin by acknowledging the traditional custodians of the land on which we meet, the Gadigal people of the Eora nation, and pay my respects to their Elders, past, present and emerging. We recognise the longstanding and enduring customs and traditions of Australia’s First Nations, and acknowledge with deep regret the role our legal system has had in perpetrating many injustices against Aboriginal and Torres Strait Islander peoples.
PD’s sense of injustice is readily understood, particularly in light of the above, and the death of her son, DD, whilst in police custody. The Applicant has expressed a sense of injustice and being treated unfairly, but I do not accept that his experiences equate to the intergenerational trauma suffered by Australia’s First Nations people. The Applicant’s experiences are personal to him since he has been in Australia and are of an entirely different magnitude.
The Applicant has also been working hard to build a relationship with his daughter KK who is in foster care. Clearly, this relationship is very important to him and he seems to have demonstrated a real commitment to maintaining an ongoing relationship with KK, with a view to her ultimately being able to live with him and Ms Dennison.
Apart from the Applicant’s relationship with PD and his daughter, KK, the Applicant does not seem to have developed close links either through work or socially within the Australian community. He has spent a considerable period of his time in Australia in detention. SG was the only member of the general community who came to give evidence in favour of the Applicant. He said he had met the Applicant in prison and that the Applicant had been a friend and mentor to him. However, when cross-examined, SG said that the Applicant had not revealed his offending history, nor his long-term alcohol abuse.
I give this consideration moderate weight against the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act.
Extent of impediments if removed
The Applicant lived a significant part of his life in Ghana and would be able, perhaps with some difficulty, to re-establish himself in that society. He is likely to be able to find work that would enable him to live at a similar standard to other citizens of Ghana.
It is highly unlikely that the Applicant would have access to similar health facilities in Ghana to those available to him in Australia. I note that paragraph 9.2(1) of Direction 90 provides that impediments are to be considered in light of what might be available to other citizens of a third country. Even with that in mind, I find that the Applicant would suffer disadvantage as he would need to re-establish himself in the community, find out where he could get suitable mental health treatment to the extent it was available and make arrangements to see appropriate professionals and receive the medication he requires.
There was no evidence that the Applicant would have any support network in Ghana if he were to be removed from Australia.
I give this consideration moderate to heavy weight against the exercise of the discretion to refuse to grant the visa under s 501(1) of the Act
Impact on Victims
There is little evidence before the Tribunal in relation to this matter. However, to the extent such evidence was available, I have dealt with it under Primary Consideration B above.
DECISION
This is a very troubling decision. I consider the prospect of indefinite detention to raise serious human rights concerns and I give it very heavy weight because of the awfulness of it, which seems incompatible with human rights in a democratic society.
On balance however, I am reluctantly of the opinion that the reservations I have expressed above are outweighed by the cumulative weight of the considerations set out in Direction 90, especially the primary considerations.
Accordingly, I find that the correct or preferable decision is to affirm the decision under review, that being the decision of the delegate dated 14 April 2021 to exercise its discretion to refuse to grant the Applicant a Protection (Class XA) visa under s 501(1) of the Act.
I certify that the preceding 126 (one hundred and twenty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President
...............................[SGD].........................................
Associate
Dated: 15 July 2021
Date(s) of hearing: 28, 29 June 2021 Date final submissions received: 29 June 2021 Counsel for the Applicant: M Yu, Frederick Jordan Chambers Solicitors for the Respondent: A Cunynghame, Sparke Helmore Lawyers ATTACHMENT A
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 imprisonment
Drive 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 10 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-T2: 12 months imprisonment
Destroy or damage property: 12 months imprisonment
Destroy or damage property: 12 months imprisonment
Fail to appear in accordance with bail undertaking: 12 months imprisonment
Stalk/intimidate intend fear of physical/mental harm-T2: 12 months imprisonment
Drive while disqualified from holding a licence: 9 months imprisonment
Fail to appear in accordance with bail undertaking: 6 months imprisonment
Drive with middle range PCA: 9 months imprisonment, licence disqualified for 3 years
Fail to appear in accordance with bail undertaking: 6 months imprisonment
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
4 April 2012
Robbery; Theft; Make threat to kill; Recklessly cause injury; Unlawful assault: Pending charge
20 April 2011
Breach of Police Family Violence Order: Pleaded guilty, conviction recorded
Breach of Police Family Violence Order: 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 10 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
ATTACHMENT B
Inmate Profile Document
Alerts
Alert Type
Alert Code
Comments
Status
Classification
Immigration
Received Urgent Advice from Sentence Administration Staff form via N Keevers 06/12/2016 “The above offender’s visa has been cancelled”
Pending
Management Program
Public Interest Inmate
VISA CANCELLED. UNLAWFUL NON-CITIZEN. PRLC.
Active
Management Program
Section 6.2 Order On Complex/Property
ST HELIERS CC – MBK
Active
Release Notifications
IMMIGRATION
Notification of s501 Visa Cancellation dated 06.12.2016
Enqs X XXX XXX 061
Active
Intervention Orders
Apprehended Violence Order
VICTIM: P.D.
Date Entered: 07/11/16
CIG Ref: XXX/XXX462AVO Status: ENFORCEABLE Event Ref No: X XXXXX 813
Order Details Application No: XXXXX 205 Reported Date: 28/04/2016Order Type: APPREHENDED VIOLENCE ORDER
Order Served Date: 28/04/2016 10:00 Property Recovery
Order: N
Order Expiry Date: 26/04/2017 23:59
Place Served: At COURT – FAIRFIELD
Violence Type: DOMESTIC
Involved Party Details:
PERSON OF INTEREST XXXXX X758 – M. S.
AV VICTIM XXXXX X463 – D.P.
1a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1b. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
Active
41
4
0