ZXXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2910

ZXXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2910 (7 September 2022)
Division:GENERAL DIVISION
File Number:2022/5327
Re:ZXXZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member J Rau SC
Date:7 September 2022
Place:Adelaide

The decision under review is affirmed.
.........................[sgnd]........................................
Senior Member J Rau SC
Catchwords
MIGRATION – mandatory cancellation of Class XB Subclass 204 Woman at risk visa under section 501CA(4)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 – consideration of “family” violence- consideration of possibility of indefinite detention -decision under review is affirmed.
Legislation
Migration Act 1958 (Cth)
Family Law Act 1975 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 878
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SQHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2810
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
7 September 2022
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 20 June 2022, not to revoke the mandatory cancellation of his Class XB Subclass 204 Woman at risk visa (“the Visa”). The visa was cancelled on 21 September 2021 under section 501 (3A) on the basis that he did not pass the character test.[1]
[1] Exhibit 3, G2, pp 7-12, G3, pp 13-15 and G4, pp 16-31.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 1 September 2020 of contravention of an AVO, and sentence to a period of 18 months imprisonment.
A report from the Australian Criminal Intelligence Commission generated on 15 September 2020, sets out his history of offending between 4 May 2018 and 1 September 2020. A copy is annexed hereto as “Annexure B”.[2]
[2] Ibid, G6, Attachment A, pp 33-36.
The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 23 and 29 August 2022. The Applicant was represented by Mr Nicholas Poynder of Frederick Jordan Chambers and the Respondent was represented by Ms Mia Donald of Sparke Helmore Lawyers.
The Applicant gave evidence by video link from Christmas Island. He generally gave his evidence in a direct and responsive manner. He made appropriate concessions against his interests on many occasions. However, he was often vague about the circumstances of his offending. He sought to shift blame on to his victims in many instances, for example, suggesting that they had provoked him. This tendency to externalise responsibility, provides “no pathway to rehabilitation and change”.[3] He admitted to consuming a cocktail of alcohol and various drugs before much of his offending. This may, in part at least, explain his poor recollection of some events. Where there is other evidence concerning these events, it must be considered.
[3] Dr Yoxall in her evidence.
The Applicant called his mother, Ms K. She gave evidence by phone with the assistance of an Arabic interpreter. Her evidence was most helpful in understanding her challenges in looking after her disabled youngest son, A. He is now 18 years of age. His condition is covered in more detail below.
Mr O, the Applicant’s former employer also gave evidence by phone. He was very positive about the Applicant’s performance as an employee. He is prepared to offer him work if he were to be returned to the community.
The Applicant called psychologist, Dr Yoxall. She gave evidence by video link. She assessed the Applicant during a video consultation on 31 January 2022. She provided a report which is before the Tribunal. Some of it is reproduced below. She gave evidence in a direct manner and made appropriate concessions during cross-examination.
Background Facts
The Applicant was born in Syria in 1999. He is 23 years of age. He arrived in Australia on 29 July 2014 with his mother, younger brother and sister on a Class XA-Protection Visa.[4] His first language is Arabic. His younger brother, ‘A’ suffers from “global development delay with features of autism and ataxia”.
[4] Exhibit 3, G10, Attachment E, p 51.
A report from the Children’s Hospital at Westmead dating from November 2018, provided to the Tribunal, relevantly states:
“……
A is now 14 years old and has been previously reviewed in our clinic for his diagnoses of global development delay with features of autism and ataxia. We previously advised follow-up with a general paediatrician, with specific recommendations of Arabic-speaking doctors, as we feel that the Cerebral Palsy & Movement Disorder Clinic cannot address his complex needs. A has re-presented to our clinic with his family due to concerns regarding his behaviour, which has become more difficult to manage over the last 18 months. A has not yet been seen by a general paediatrician.
A’s family report that he has had increasing episodes of agitation which are becoming more difficult to control. He sometimes hits his own head and sometimes hits other family members when he is agitated. He continues to attend Broderick Gillawarra School and there have been no reports of him being physical with any of the students or staff there and the family have observed that his physical aggression has always been directed towards his family, especially his mother. This has become a significant recently because they are no longer able to take A for outings because he has a tendency to pull his mother and auntie’s hair as well as their head scarves, which is not culturally permissible. They are afraid that A will ‘lose control’ if they take him out. A lives with his mother and auntie and in general, they are both present to care for him, although the family expressed concern about him causing more serious harm to a family member whilst caring for him alone. There have been no serious injuries to A or to others reported thus far.
The only changes that the family have noticed in the last 18 months to explain his increasing agitation have been some constipation requiring as-needed suppositories if he does not open his bowels after two to three days. He has not been taking any oral medications. They reportedly have trialled OsmoLax previously which worked initially but then failed to control his constipation. In addition, A has been disliking school this year compared to previous years since his teacher has changed, he has been sleeping and eating well.
A is enrolled in the NDIS and continues to receive therapy at school.
SUMMARY AND RECOMMENDATIONS
A is a 14-year-old with global developmental disability. Our recommendations are as follows:
1.    As previously recommended, we believe that this is not the most appropriate clinic for A, as his main issue continue to be related to his general health and behavioural management. We have called the office of Dr Sam Nassar, an Arabic-speaking General Paediatrician, who has booked A in his next available appointment on 1 March 2019 at 1:00pm. We have requested that he bulk bill A’s appointment. Please bring a referral letter from your GP along to this appointment to facilitate bulk billing.
2.    We will write a letter to A’s local area coordinator for the NDIS requesting inclusion of clinical psychology support for behavioural management in his next plan. In the meantime, we have requested that his GP organise an enhanced primary care plan to allow for behavioural management support for A and his family.
3.    We have advised A’s mother to commence regular OsmoLax and Lactulose given the apparent inefficacy of OsmoLax along previously. It is our understanding that A’s constipation has become so severe in the past that he has required a presentation to the Emergency Department. A should continue to take Lactulose and Osmolax regularly and if required, could use suppositories on top of these to manage his constipation until review with Dr Nassar.
4.    We would be happy to see A again if his general paediatrician felt it was necessary, however we believe that our service is not well suited to meet his needs. We are discharging him from the Cerebral Palsy & Movement Disorder Service and we wish him and his family all the best for the future.”[5]
[5] Ibid, G25, Attachment O3, pp 133-134.
A psychometric assessment report dated 2 November 2018, relevantly states the following:
“……
Reason for Referral
This assessment aims to provide updated information regarding A’s level of cognitive functioning to support his continued access to his current school program.
Background information
A has previously been assessed as having a Severe Intellectual Disability. A was diagnosed with Cerebral Palsy (Dr Paul Hotton, 2014). A was born in Syria and arrived in Australia in 2014 as a refugee and had no formal schooling prior to his arrival in Australia.
Arabic is the main language spoken at home. He is currently enrolled in a support class at Broderick Gillawarna School, a school for students with moderate to severe intellectual disability. A commenced formal education at the beginning of 2015 with his enrolment at Broderick Gillawarna School.
Previous Assessment

Date

Assessor

Assessment

Results

March 2015

School Counsellor Broderick Gillawarna School

Scales of Independent Behaviours – Revised

Chronological Age: 11 years Broad Independence: 0.7 months

October 2014

Dr Paul Hotton (Paediatric Community Fellow) ‘

Refugee Community Paediatric Clinic. Liverpool Hospital

Clinical impressions

Severe global developmental delay

Cerebral Palsy

Behavioural Observations and Teacher Interview
A has high support needs and requires adult assistance with all tasks of daily living.
Academic Attainment
A requires various prompts (verbal, visual and physical) and support to complete academic tasks. He participates in simple activities such as matching with hand over hand support. He laughs and smiles when participating in shared reading activities he has a very short attention span, and is working on identifying his name.
Communication
A is non-verbal and communicates with others by using eye gaze and vocalisations. He indicates when he is upset or not happy by closing his eyes at times, putting his fingers in his ears. He is starting to respond to one step instructions with teacher support and indicating his preferred choice by his response to visuals.
Social Functioning
A can make eye contact and responds to his name when called. He smiles to express when he is happy or excited.
Daily Living Skills
A has limited awareness if personal hygiene, and is completely dependent on adult support for all basic daily living skills such as toileting, washing his hands and dressing. He uses a wheelchair and is dependent on adult support to assist him with gross for fine motor tasks. He eats a wide variety of foods. He drinks with partial assistance from a cup.
Mobility
A walks from the classroom to the bathroom, but requires supervision as he is unsteady when he walks. He is predominantly in a wheelchair.
Safety
A requires close adult supervision to ensure his safety. He has a risk of falling over when he is walking as his balance us poor.
……
A’s overall level of adaptive functioning is described by his score on the Adaptive Behavior Composite (ABC). His ABC score is 20, which is well below the normative mean of 100 (the normative standard deviation is 15). The percentile rank for this overall score is <1. Compared to others of the same age, A’s overall level of adaptive functioning is low. The score was lower than approximately 1 of 100 individuals of the same age.
The ABC score is based on scores for three specific adaptive behavior domains: Communication, Daily Living Skills, and Socialization. The domain scores are also expressed as standard scores with a mean on 100 and standard deviation of 15.
The Communication domain measures how well A listens and understands, expresses himself through speech, and reads and writes. His Communication standard score is 20. This correspondents to a percentile rank of <1.
The Daily Living Skills domain measures how well A listens and understands, expresses himself through speech, and reads and writes. His standard score for Daily Living Skills is 20, which corresponds to a percentile rank of <1.
A’s score for the Socialization domain reflects his functioning in social situations. His Socialization standard score is 20. The percentile rank is <1.
The Vineland-3 also assesses maladaptive or problem behaviour. A’s scores for internalising (i.e. emotional) and externalising (i.e. acting out) behaviours were within the elevated range for externalising behaviours and in the clinical significant range for internalising behaviours. As such, these behaviours would benefit from intervention planning. The behaviours included:
-Harms himself (sometimes)
-Toileting accidents
-Eats non food items
-Has limited response to pain

Summary and Conclusions
An adaptive behaviour assessment was conducted to confirm the level of A’s intellectual delay. The assessment consisted of:
A review of previous assessments
Behavioural observations
Interviews with the class teacher and School Learning and Support officer
The Vineland Adaptive Behaviour Scales 3^rd Edition
A was 14 years of age and in Year 8 when assessed with Vinelands-3. His results are consistent with his previously diagnosed severe intellectual disability and meet diagnostic criteria for Intellectual Disability of Severe Severity specified by the American Psychiatric Diagnostic and Statistical Manual of Mental Disorders (DSM-5). These results also meet the NDW Department of Education eligibility criteria for a severe level of intellectual disability. The findings of this assessment are to be discussed with A’s mother and class teacher. Continued placement at Broderick Gillawarna SSP, with continued Personalised Learning and Support planning, is recommended (see Appendix for suggestions for intervention for adaptive behaviour).”[6]
[6] Ibid, G27, Attachment O5, pp 144-147.

The Applicant was born in Aleppo, Syria. He provided the following history to psychologist Mr Chafic Awit in August 2020:
“……
Background Information
Early History
[ZXXZ] advised that he was born in Syria, and travelled to Australia at the end of 2014 with his family (mother, sister and brother). [ZXXZ] advised that he is the eldest amongst his siblings. [ZXXZ] advised his father died in 2011 due to the war in Syria. [ZXXZ] advised that he came home from school to find his father covered in a white sheet. He advised that something had gone off in the street that caused his father’s death. [ZXXZ] advised that he has had to live through years of war, death and carnage. Furthermore he advised that he witnessed their family home being destroyed by a bombing. [ZXXZ] advised that even as a child he tried to assist neighbours throughout the war. He advised that as a child he assisted a neighbour whose insides of his stomach were out on the street. He further advised that his brother was born disabled, and does not walk or talk. He advised that during the bombing it was quite difficult to assist his brother to get him to safety when they were all trying to get to safety. [ZXXZ] advised that he and his family were granted a protection visa here in Australia. At fourteen (14) years of age, the Syrian Army was trying to get him to join, and if he did not he could be killed, so his family ran away to Lebanon, where they applied for visas to travel to Australia.
[ZXXZ] advised that he attended Schooling in Syria and completed up to the Year 8 equivalency. [ZXXZ] advised that after arriving in Australia he attend IEC English Course, which he attended for three (3) terms. [ZXXZ] advised that he then attended Year 10 and Year 11 at St Joseph’s Banks High School. He advised that he did not complete Year 11. [ZXXZ] advised that he struggled with schooling here in Australia, as his English skills were poor, so he parted ways with school. [ZXXZ] advised that he then attended TAFE where he struggled through a course in Construction. [ZXXZ] advised that he did not complete the construction course.
Employment History
[ZXXZ] advised that he commenced employment in Lebanon at the age of fourteen (14) as a cabinetmaker. He advised that he had to assist his mother with bills, because his father was no longer around, and his brother had a physical disability. [ZXXZ] advised that he worked within this role, for one (1) year before they travelled to Australia. [ZXXZ] advised that from the age of seventeen (17) he left school and commenced working with his cousin in construction. He advised that he continued this line of work for three (3) years with his cousin, before moving to another employer. [ZXXZ] advised that he was still employed in this field up until his arrest in March 2020. [ZXXZ] advised that he still has employment waiting for him, if released from prison.
Drug and Alcohol History
[ZXXZ] advised that he commenced consuming alcohol from the age of eighteen (18). He advised that he found himself turning to alcohol regularly to numb his mind from his past trauma and current mood.
[ZXXZ] advised that he commenced using illicit substances from the age of seventeen (17). [ZXXZ] advised that kids at school introduced him to cannabis. [ZXXZ] advised that it became a daily habit from the age of eighteen (18). [ZXXZ] advised that he was also introduced to cocaine, MDMA and Xanax, and regularly would turn to these substances as a means to numb himself and escape the bombarding distressing thoughts he would regularly have. [ZXXZ] advised that he is addicted to illicit substances and wants help to break these addictions.
Criminal History
A review of [ZXXZ’s] criminal history shows a short range of charges. [ZXXZ] has expressed shame and remorse in relation to these, he advised that the time he spent in prison has been an eye opener for him. He advised that he realizes his life has gone nowhere, and he has a responsibility to his family, and needs to better himself to best take care of them.
Psychosocial History
[ZXXZ] advised that prior to his incarceration he was living with his mother, sister and brother. He advised that his mother is not employed as she is the carer for his brother, and his sister is currently enrolled in a teaching degree at University. [ZXXZ] advised that prior to his incarceration he was financially supporting his family. He advised that he has had very little time for himself to seek the psychological support he has required.
[ZXXZ] advised that he entered a relationship with Ms. [CB] (the victim in these matters) in mid 2019. He advised that he was very much in love with Ms. [CB], but was hurt by the belief that she had cheated on him. [ZXXZ] advised that he should have just moved on, but he was saddened and angered by the though of being cheated on.
Mental Health Examination
[ZXXZ] was pleasant and cooperative throughout the session. He was orientated and alert and did not demonstrate any abnormalities if historical capacity, insight, or judgement. There were no abnormalities of form of speech, speech pattern or thought content. No psychotic symptoms were identified. He had a diminished flat affect, and there was evidence of anxiety and depressive symptoms during the sessions.
…….”[7]
[7] Ibid, G19, Attachment L2, pp 109-110.

Mr Awit expressed the opinion that the Applicant met the DSM-V Diagnostic Criteria for PTSD, Major Depressive Disorder, Substance Abuse Disorder and Alcohol Abuse Disorder.[8]
[8] Ibid, G19, Attachment L2, p 112.
The Applicant conceded that he was suspended from high school for non-attendance and fighting.[9] He stated that the fighting was provoked by others mistreating his sister. He accepted that he had assaulted them. He said that a combination of his mental health issues and bad company led him to drug abuse. This has included cannabis, cocaine, MDMA, Xanax and alcohol. He says that this also prevented him controlling his anger. He attributes his offending to this. This explanation is something of an ex post facto reconstruction, as his case was presented on the basis that he had undiagnosed mental health issues, until quite recently. The Applicant stated his situation to be:
“……
Kindly note in both incidents in June 2019 and in March 2020, I have no intentions to assault anyone. However, the influence of the bad company around me and the consumption of drugs prevented me from controlling my anger.
In the first incident, while I was with my friends in one of their houses, someone put something in my drink to make me sleep and stole my belongings. When I woke up, I was very upset and angry, and I assaulted my friends in the house. I was put in custody for six months as a result.
When I left prison, I decided to continue my life and stay away from troubles. However, I discovered that my girlfriend at the time, [CB] was cheating on me with one of my friends which made me very angry to the point that I assaulted both of them in a hotel. As a result, I was put in custody again in March 2020.
It has come to the departments attention as well that I breached an AVO on 27/03/2019 that [RK] placed against me with the police. In that incident [RK]and her sister approached me while sitting in the park next to Bankstown library. [RK] and her sister tried to create a fight with me, so that I would end up in prison. I tried to stay away from them and I took photos of them trying to fight me. I then called the police and told them what happened. The police told me that what I have done was wrong in that incident since they approached me while sitting in the park, I should run away from them and I should not stay while they are in the same place and took photos of them.
While I was in prison, I was very depressed, and I could not control my anger. I was still under the influence of drugs, therefore I was involved in five incidents including drug possession and fighting. Kindly note, I am now clean of drugs, and I have agreed to a rehabilitation program with Mr Chafic Awit, a registered psychologist, in August 2020 to overcome my problems and depression. I have agreed to a long-term drug and alcohol rehabilitation program as well as ongoing psychological intervention to help me control my anger and to help me make the right decisions in my life. That program helped to cleanse myself of drugs and alcohol and I learnt to control mt anger. In prison, I have also done many rehabilitation programs as well as including anger management pogrom, domestic violence program and others.
Further to that, I have done a rehabilitation program with Mr Sava Tsolis. This program included an anger management program and domestic violence course. Indeed, this program has helped me to control my anger a lot better and has taught me skills for problem solving. I now looked upon Australia more as my homeland and I am planning to build a great life in this country. The program has opened my eyes to many positive things in my life that I have not appreciated before like my health, my skills, and my family. I plan to use all that I achieved from this program to better myself and live a better life with my family and those who are about me. I will always appreciate what I have and think twice before making any decision. I will not go down that path again and I will become a good community member who will serve to the best of the community. Hoping to teach people not to fall into my mistake but to be the best they can. In addition to that rehabilitation program, I was seeing a psychologist in Villawood detention centre and I am currently seeing a new psychologist in Christmas Island detention centre. Seeing the psychologist in Villawood detention centre and Christmas Island was upon my request because I am planning on participating in as many as community events there are to help the youth and spread the message of valuing what we have and staying away from bad influences and decisions. I understand that the department of Home affairs has concerns that I will reoffend again because I was involved in five incidents including drug possession and fighting while I was in custody. Kindly note I was under the influence of drugs when I was involved in these incidents. However, since I have started the rehabilitation programs with the psychologists Mr Sava Tsolis, the psychologist in Villawood detention Centre and the psychologist in Christmas Island, I have become a better person and I have never involved myself in any violent act. You can check my record from the recent detention centre. Even when there were altercations in Christmas Island detention centre recently between the people and the officers in charge of the centre, I was not involved and I isolated myself in my room because I now know how to control my anger and how to steer away from problems.”[10]
[9] See Exhibit 6, p 38.
[10] Ibid, G16, Attachment J, pp 87-88.
On 5 October 2017, the Applicant was charged with assault occasioning actual bodily harm.[11] The circumstances as set out in the NSW Police Fact Sheet of 23 October 2017 are as follows:
[11] Exhibit 4, TB1, pp 2-9.
“The accused in this matter is [ZXXZ] (DOB: 1999)
The victim in this matter is [DA] (DOB: 1995).
The victim and accused know each other as they socialise with mutual friends on a regular basis at Paul Keating Park, Bankstown.
About 2000 on Thursday the 5th of October 2017, the victim was with friends at Paul Keating Park. The victim and his friend then decided to walk to RM Campbell Reserve located at Jacobs Street Bankstown. They walked along Jacobs Street and observed the accused a number of other males seated at a table within RM Campbell Reserve consuming unknown bottles of alcohol. The accused was wearing a red, white and blue Adidas jacket, white sneakers and green coloured chino pants.
The victim and his friend were approximately ten metres from the accused and the other males when the accused yelled, “Come drink with us.”
The victim said, “Nah, me and J don’t want to drink because J has problems with his dad.”
The victim and his friend continued to walk past the accused and males and sat at gym and play equipment. A female, [CB], then approached the victim and his friend. [CB] then asked if she could consume alcohol with the accused and the other unknown males. [CB] walked to the accused and was seen by the victim to consume an unknown drink with the accused.
A few minutes later, the victim observed [CB] running around the park and laughing and appeared to be slightly intoxicated.
The victim walked towards the accused and the other males and stood approximately ten metres from them. The victim said, "Why did you give her a drink? Can't you see she's drunk?"
The accused and other males turned around to look at the victim. The accused yelled, "She said she is allowed." The victim said, "Just look at her can't you see she's drunk?"
The accused and seven other males stood up and started walking towards the victim. At this stage, the victim's friend had walked off and was talking on his mobile phone. The victim began walking away from the accused towards the middle of RM Campbell Reserve.
The victim said, "Nah I don't want to talk to you. Just fuck off, I don't want to talk to you." The accused said, "Nah come come I want to talk to you. Come talk to me like a man." The victim said, "No all of you get lost. What do you guys want to talk about?"
One male who had a bandage on his hands then took hold of the victim's right arm and attempted to lead him towards the accused.
Another male who was wearing a blue jacket then said to the victim, "What's it got to do with you?" The victim approached that male and said, "Why do you keep telling me what to do?" The accused then approached the victim and said, "I will smash you, one on one." The victim said, "No I don't want to fight with you."
The accused stood directly in front of the victim and other males started yelling, "Don't fight." The accused then swung his right arm towards the victim's face with a closed fist. His right fist hit the victim's right eyebrow causing immediate pain for the victim. The victim fell to the ground and felt blood running down his face onto his clothes.
The victim stood up and approached the accused but was held back by one of his friends. The accused was also being held back by unknown males. The victim approached the accused and swung his arm towards him, not knowing if he made contact. Four unknown males then rushed towards the victim surrounding him. The victim fell onto the ground and felt hits all over his body. He placed his arms over his head to prevent any injuries to head.
The victim looked up and observed the accused standing over him attempting to hit him. The victim quickly stood up and the accused and other unknown males began to ran away. The victim contacted triple zero for assistance.
A few minutes later, police arrived at the location and observed the victim running towards them with blood all over his face, arms, clothing, legs and shoes. Police observed a deep 1 centimetre long laceration on his left eyebrow which continued to bleed. The victim was visibly shaken.
Further police vehicles arrived at the location and circulated for the offenders. Police obtained a description of the accused and broadcasted it via Police radio. A few minutes later, a police vehicle observed the accused walking along Conway Road Bankstown. He matched the description provided by the victim. He was then apprehended and Police immediately observed he had blood on his hands, clothes and shoes. The accused was arrested with all requirements pursuant to the Law Enforcement (Powers and Responsibilities) Act 2002 adhered to.
The accused was conveyed to Bankstown Police Station where he was introduced to the Custody Manager. The accused was assessed as being under the influence of alcohol and/or drugs. The accused was unsteady on his feet, his speech was slurred, his eyes were bloodshot and he held onto the custody counter for support. At this time the accused was not read his rights pursuant to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 due to his level of intoxication.
Police obtained photographs of the blood on the accused's hands and clothing. The accused's clothing was then seized due to the evidentiary value of the blood splatters and identification.
The victim was treated by Ambulance Officers and required stitches for the laceration on his eyebrow. The victim provided police with a statement and during which, he complained of pain all over his body. Police obtained photographs of the victim's injuries and his clothes were seized. The victim did not give permission for the accused or any other person to assault him.
The accused's level of intoxication improved and he was then read his rights pursuant to Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002.
The accused was offered the opportunity to participate in an electronically recorded to which he declined.
The seized items were booked into the Exhibits Forensic Information and Miscellaneous Property System.
The other males involved in this incident are still unknown, therefore the investigation is still on going to identify them.”[12]
[12] Ibid, TB1, pp 6-9.
The Applicant was asked about this incident, but his recall was very limited. In cross-examination, he accepted that he followed the victim, argued with him and punched him in the face, causing him to bleed. Police records state that the victim was seen by paramedics and had stiches for a cut to his eyebrow.[13]
[13] Ibid, TB1, p 8 and TB4, p 252.
On 4 May 2018, the Applicant appeared in the Bankstown Local Court, charged with common assault in respect of the events of 5 October 2017. He entered a guilty plea.
The Applicant was found guilty, but the charge was dismissed under s 10 (1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).[14] This provision relevantly provides:
“10 DISMISSAL OF CHARGES AND CONDITIONAL DISCHARGE OF OFFENDER
(1) Without proceeding to conviction, a court that finds a person guilt of an offence may make any one of the following orders—
(a)an order directing that the relevant charge be dismissed,
(b)an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9),
(c)an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.”
[14] Exhibit 3, G6, Attachment A, p 36.
On 7 May 2018, the Applicant was involved in behaviour which led to charges of common assault, assault occasioning actual bodily harm and destroy, or damage property valued at less than $2,000.[15] His victim this time was Mr MA.
[15] Exhibit 4, TB4, p 178 and pp 240-245.
When asked about this in evidence, the Applicant was again vague. He claimed that he hit Mr MA in self-defence. His evidence did not entirely fit with the relevant police records. The assault was captured on CCTV. It showed the Applicant to be the aggressor, chasing the victim, catching up with him and punching him multiple times in the face and body.[16] These allegations were put to the Applicant in cross-examination. He agreed that these CCTV images had been shown in court.[17]
[16] Ibid, TB4, p 245.
[17] Ibid, TB4, pp 240-245.
The Applicant said that at the time, he was with his then girlfriend of some 4 months, F. It seems that she may have been a minor. The victim was according to the Applicant, F’s former fiancée. There was an AVO against the victim to protect F from him. The Applicant conceded that he had a history of antipathy towards the victim. The police records suggest that F and the victim had only broken up “a few days ago”. The difference between 4 months and a few days in this context, may be significant.[18]
[18] Ibid, TB4, p 240.
The police record is consistent with this incident having been a setup, directed at the victim. It is open on the basis of these records, to infer that a trap may have been baited by a phone call from F, asking to see the victim. The Applicant says something quite different. He says that the victim was lying in wait for F, because he knew that when she would be in the vicinity at that time. How he would have known this was not clear. The Applicant only fought with the victim to get back his gold necklace, which had been accidently taken from him by the victim earlier on, in a scuffle between the two of them. I am unconvinced by the Applicant’s account of these events. Whatever the genesis of this incident may have been, it seems that the Applicant was the aggressor.
On 13 June 2018, The Applicant was fined $300 for driving without a license.[19]
[19] Exhibit 3, G6, Attachment A, p 36.
In mid to late 2018, the Applicant commenced a relationship with Ms CB. At the time the Applicant was 19 years old, and Ms CB was 15 years old. This is the same “CB” who was mentioned in the account of events on 5 October 2017 above.
The Applicant described this relationship as intimate. He would see her every day. He would stay with her at her parent’s house. She would stay with him at his home. They would go away together. He would take her to school and collect her from school. He encouraged her to attend school, even though she did not want to. He saw theirs as a long-term relationship. If she wanted anything, he would get it for her. He said in evidence that everybody knew that they were in a relationship together. He wanted to marry her.
On 2 December 2018, the Applicant entered a plea of guilty to common assault, assault occasioning actual bodily harm and property damage in respect of the 7 May 2018 offending set out above. The charge was again dismissed under s 10 (1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).[20]
[20] Ibid, G6, Attachment A, p 36.
On 13 February 2019, at about 11 pm, Ms RK went to a house, where she met the Applicant for the first time. She stated that he told her he was depressed. He said in his evidence that he thought that her older sister AK, whom he had known for a few months, was coming to see him, but RK turned up instead. It seems that she agreed to go to the bedroom with him. They had sex in the early hours of 14 February 2019. RK left at about 3 am. Police records suggest that there was a complaint of sexual assault. This complaint did not proceed, and no charges were laid. At the time, the Applicant was 20 years old, and RK was 15 years old.[21] The Applicant said in evidence that he was taking a lot of drugs at the time. He did not deny the sequence of events.
[21] Exhibit 4, TB4, pp 220-227.
On 19 February 2019, the Applicant was served a provisional ADVO listing Ms RK as the person in need of protection.[22] This order was sought by police due to her “being 15 years old and the defendant being 21 years old police believe it necessary ……to protect (RK)”. This order was ignored by the Applicant.
[22] Ibid, TB1, p 77 and TB4, p 227.
On 3 March 2019, at about 7 pm, AK and RK were in Paul Keating Park in Bankstown. The Applicant was a passenger in a car that drove past. He yelled out “Ya fukn sluts” and continued to swear at the victims. Some 10 minutes or so later, the Applicant approached the girls on foot and again insulted them. An argument ensued. The Applicant spat at RK, and headbutted AK in the face, causing her to bleed. Police were called and AK was taken to hospital for treatment.[23] When interviewed by police on 6 March 2019, the Applicant denied insulting, spitting at, headbutting or even touching the victims.[24]
[23] Ibid, TB4, pp 220-223 and TB1, pp 20-22.
[24] Ibid, TB4, p 223.
These facts were put to the Applicant during the Tribunal hearing. He claimed not to remember what had happened. However, he then conceded that there was an argument, that he spat at the girls and that he headbutted AK. He claimed not to have understood the AVO rules properly. It is difficult to comprehend how his conduct could, even in his mind, not have constituted an AVO breach. He sought to shift responsibility to the girls because they were swearing at him, and AK was about to hit him. His response to their actions was inappropriate, disproportionate and violent. At this time, RK was 15 years old, AK was 17 years old and the Applicant was 20 years old.
On 27 March 2019, a NSW police facts sheet records the following:
“The Accused in this matter is [ZXXZ] (DOB: 1999)
The Victim in this matter is [RK] (DOB: 2003)
The Witness in this matter is [AK] (DOB: 2001)
The Witness in this matter is [AK] (DOB: 2001) who is also the Victim’s sister.
On 19^th of February 2019. The Accused was served a Provisional Apprehended Domestic Violence Order (ADVO) listing the Accused as the Defendant and the Victim as the Person In Need of Protection (PINOP). The order contains the following conditions:
1.    You must not do any of the following to [RK], or anyone else she has a domestic relationship with:
A)assault or threaten her, B) stalk, harass, or intimidate her, and C) intentionally or recklessly destroy of damage any property that belongs or is in the possession of [RK]
2.    You must not approach [RK] or contact her in any way, unless the contact is through a lawyer.
9.    You must not go within 100 Metres of: A) any place where [RK] lives, or B) any place where she works, or C) any place listed here.
About 16:00 on Wednesday 27th March 2019, The Victim attended Paul Keating Park, Bankstown with the Witness and a friend. The Victim and her friends sat down and began talking.
A short time later, the Victim and the Witness saw the Accused with another female, walk towards them and sit down on a bench nearby, approximately 10 metres away from the Victim.
The Accused then started saying to the Victim “Go away” and “There’s two rats sitting over there”.
The Accused than began recording the Victim and her sister whilst still sitting 10 meters away from them. The Accused began saying, “Walk away, I have an AVO against you”, “Walk away you and your sister. For my own safety”. The Accused during this incident remained sitting at the bench.
The witness walked towards the Accused and said “Stop recording, we have an AVO against you. You are not the one who is supposed to be near us.”
A short time later Police attended the location and separated the parties to obtain details of the incident. The Victim and the Witness disclosed to the Police that there is an enforceable ADVO in place between the Victim and the Accused.
Police conducted checks which revealed a current enforceable ADVP listing the Accused as the Defendant and the Victim as the PINOP. Subsequently, the Accused was placed under arrest and cautioned as per Section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002.
The Accused was conveyed to Bankstown Police Station when he was introduced to the Custody manager and read his rights as per Section 9 of the Law Enforcement (Powers and Responsibilities Act 2002.
The Accused was offered the opportunity to participate in an electronic record of interview, to which he declined and signed Official Police Notebook F647430 page 101 stating the above.
Police obtained a Domestic Violence Evidence in Chief recorded statement from the Victim. Police also obtained a two page statement and a signed diagram from the Witness, in relation to the matter.
Body Worn Video Activated during interactions.
The Accused is now charged with the matter before the court.”[25]
[25] Ibid, TB1, pp 77-79.

In evidence to the Tribunal, the Applicant explained this behaviour on the basis that he did not approach the victims, they approached him. He filmed them using his phone camera. He denied knowing that it was his responsibility to keep clear of the victim, not the other way around. This explanation is not credible, especially in light of his then recent breach on 3 March 2019 and subsequent interaction with police.
On 2 May 2019 an AVO was made against the Applicant for the protection of RK until 1 May 2021.[26]
[26] Ibid, TB3, p 97.
On 4 June 2019, the Applicant was involved in a violent incident with Ms CB and her friend, Ms SY-T. The facts are set out in a NSW police facts sheet dated 5 June 2019. It states:
“The Accused in this matter is [ZXXZ].
The first Victim in this matter is [CB].
The second Victim in this matter is [SY-T].
The Witness in this matter is [NES].
[ZXXZ] and [CB] are in an intimate relationship. [the Applicant] is a 22 year old male, and is tall. [CB] is a 16 year old female, and is very petite [ZXXZ] is considerably larger in physical size than [CB].
[SY-T] resides at, BANKSTOWN.
[NES] resides at, BANKSTOWN.
In the evening of Tuesday 4 June 2019, [ZXXZ], [CB], [SY-T] and [NES] were at, BANKSTOWN (the Location). [ZXXZ] had consumed an unknown amount of alcohol.
Location, as he was extremely intoxicated.
[ZXXZ] fell asleep on a couch for approximately 20 minutes. While he slept, [ZXXZ] began to talk in his sleep, saying: "fucking dog" and "slut". [ZXXZ] woke up at around 12:30am, Wednesday 5 June 2019. [ZXXZ] called [NES] and [SY-T] "slut" and "bitch".
OFFENCE 1: COMMON ASSAULT
[ZXXZ] said: "[CB], don't fucking touch me!"
[CB] said: "I'm not"
[ZXXZ] reached out his arm, and pushed [CB] extremely hard with his one hand. The force of [ZXXZ’s] push caused [CB] to fall back. [CB] got up, went into a bedroom at the Location, and started to cry. [NES] followed [CB] into the bedroom.
OFFENCE 2: MALICIOUS DAMAGE
[ZXXZ] upturned a glass table, which stood in the centre of the room at the Location. The items that were on this coffee table fell off the table. A glass vase that was on the coffee table when it was upturned fell to the floor and smashed.
OFFENCE 3: ASSAULT OCCASIONING ACTUAL BODILY HARM
[ZXXZ] said, aggressively: "Where's my wallet?!"
[SY-T] said: "I don't know where your fucking wallet is!"
[ZXXZ] became angry, and started to put his shoes on and made to leave the location. [NES] told [CB] the [ZXXZ] was leaving. [CB] came out of the bedroom, and said to [ZXXZ]: "Babe, please don't go. You're not going anywhere".
[ZXXZ] pushed [CB] very hard in the chest, using both of his hands. The force of [ZXXZ’s] push caused [CB] to move backwards. [CB] then moved towards [ZXXZ].
[ZXXZ] has then struck [CB] using his arm and hand, using an extremely large amount of force. [ZXXZ] struck [CB] on the side of her face. It is unclear whether this strike was with a closed fist or an open palm. [ZXXZ’s] strike to [CB’s] face has caused [CB’s] lip to split. [ZXXZ’s] strike to [CB’s] face has caused [CB] to bleed. [ZXXZ’s] strike to [CB] caused [CB] to cry.
[ZXXZ] then pushed [CB] on a couch and continued to assault her. [ZXXZ] shouted at [CB]: "You slut! You fucked all my mates! How could you do that to me?!" and "Where is my wallet you slut?!".
OFFENCE 4: INTIMIDATION
At one point [SY-T] stepped in and said: 'Don't fucking touch her!" and" Get the fuck out of my house!". [ZXXZ] approached [SY-T], putting his forehead against hers in a stand-over, intimidating manner. [ZXXZ] said: "What the fuck are you going to do?!" and "Junkie slut!"
[SY-T] told [ZXXZ] that she was calling the Police. [SY-T] told [ZXXZ] repeatedly to leave the Location.
OFFENCE 5: COMMON ASSAULT
At one point after the initial assaults, [CB] managed to get back into the bedroom at the location. [ZXXZ] has walked into this bedroom. [CB] was sitting on the floor. At this point, [CB] had blood on her jeans. [ZXXZ] stood over [CB], who was sitting on the floor. [ZXXZ] has then kicked [CB] extremely hard with one foot. [ZXXZ] was wearing shoes when he kicked [CB]. [ZXXZ’s] kick connected with [CB’s] chest. The force of [ZXXZ’s] kick made [CB] move back. Blood start to come out of [CB’s] mouth.
After [CB] was kicked, [CB] was in distress. [CB] grabbed her chest, and said in a whisper: "I can't breath!".
At one point, [SY-T] retrieved a kitchen knife from the kitchen, and said to [ZXXZ]: “If I have to stab you I will, in self-defence!”.
[ZXXZ] then went downstairs to the exit of the Location. A short time later, [CB] and [SY-T] made to leave as well. At this point, [NES] was outside with [ZXXZ].
As [CB] and [SY-T] were at the top of the stairs, [ZXXZ] approached them and said,: "I'm going to bash her, watch me". [ZXXZ] reached around [SY-T] and grabbed [CB] using his right hand. [ZXXZ] pulled [CB] forward down the stairs, punching her as he did so using his left hand. [ZXXZ] threw [CB] down the final 10 stairs leading to the exit to the location. [ZXXZ] then opened the front door to the location at least 6 times into [CB’s] body.
OFFENCE 6: MALICIOUS DAMAGE
[ZXXZ] walked out of the front door of the location. [SY-T] rushed down to the door, and closed it. [ZXXZ] has kicked the front door to the location, causing the door to open. [ZXXZ’s] kick caused the front door to be damaged and unable to be closed.
[ZXXZ] approached [NES] outside of the location, and told [NES] to help him and to take him to [NES’s] apartment. [NES] vomited and fell to the ground.
[CB] then exited the location, and fell to the ground. [NES] picked up [CB]. [CB] appeared to be absolutely terrified, and was crying alot. [NES] attempted to comfort [CB].
Police then arrived on the scene. [ZXXZ] was acting extremely erratically, and as such Police placed [ZXXZ] in handcuffs.
Police spoke to [ZXXZ], [CB], [SY-T] and [NES], in order to determine what had taken place.
Police informed [ZXXZ] that he was under arrest for assault. Police cautioned [ZXXZ]. [ZXXZ] was placed into a caged Police vehicle .Ambulance staff attended the location, and tended to [CB’s] injuries.
……..
[SY-T] and [NES] attended Bankstown Police Station and provided statements to Police.
[CB] initially told Police at the scene that she was willing to participate in a DVEC interview. However, upon attending Bankstown Police Station, [CB] declined an interview.
……
The Accused, [ZXXZ], is now charged with the matter before the Courts.”[27]
[27] Ibid, TB1, pp 33-39.
On 5 June 2019, the Applicant was taken into custody and refused bail. He remained in custody until 2 December 2019.
In evidence before the Tribunal, the Applicant said that on the day in question, he had been with others, and he had been offered a drink. He could not remember what happened after that. He woke up and he was in Ms SY-T house. He could not find his phone or wallet. He said of his conduct that it was a “horrible mistake………. She (CB) was talking to other guys and it made me upset”.
On 5 June 2019, a provisional AVO was made against the Applicant to protect Ms CB and Ms SY-T.[28]
[28] Exhibit 3, G9, Attachment D, p 49 and Exhibit 4, TB4, p 200.
On 17 September 2019, the Applicant completed a Remand Domestic Violence programme.[29]
[29] Exhibit 4, TB1, p 41.
On 2 December 2019, 2 AVO’s for the protection of SY-T and CB were made. These expired on 1 December 2021.[30]
[30] Ibid, TB3, p 97.
On 2 December 2019, the Applicant appeared in the Bankstown Local Court charged with multiple offences including, destroy or damage property, contravention of an AVO, assault occasioning actual bodily harm, common assault, and stalk/intimidate intend fear physical harm. The relevant offending occurred on 3 and 27 March 2019.[31] He was sentenced to 12 months imprisonment commencing on 5 June 2019 and concluding on 4 June 2020. A non-parole period of 5 months 3 weeks and 6 days was set.[32] The effect of this was that he was released as from the date of sentencing, on parole.
[31] Ibid, TB1, pp 20-22.
[32] Exhibit 3, G6, Attachment A, pp 34-35.
In an undated letter to the Court, probably written in mid-late 2019, the Applicant stated:
“….
I am so blessed this time I have awaken to myself and I am ready to make changes I need to make to improve myself and to do better for my family and for those who are close to me. I have completed the Domestic Violence Course and done the educational program and the anger management course.”[33]
[33] Exhibit 4, TB1, p 40.
On 2 December 2019, the learned Magistrate made the following remarks in sentencing:
“HER HONOUR: [ZXXZ] is before the Court for a number of offences today, one count of contravening an AVO which is a minimum penalty of two years, one count of common assault, maximum penalty, two years’ imprisonment, assault occasioning actual bodily harm, maximum penalty, five years’ imprisonment, another count of assault occasioning actual bodily harm, another count of common assault and destroying or deliberately damaging any property. The maximum penalty for that offence is five years' imprisonment. There are also two offences to be taken into account on a form 1, in the determination of the appropriate sentence for this offender, those being sequences 8 and 9 of H ending 7872, where indications of guilt have been entered, and common assault and stalk intimidate with intention to cause fear of physical harm is to be taken into consideration on the form 1.
The first in time offence is the March offence where the facts are that the accused and another person were driving in a vehicle and accosted two young women in Paul Keating Park, yelled out obscenities at them and then approached them. There were some words exchanged. There was an argument and the accused then spit on one of the victims. He then approached one of the victims and head butted her in the face, causing her nose to bleed and to become bruised. Police were called and attended.
The second in time offence is a breach AVO where it is alleged that the offender approached the victim and another witness in Paul Keating Park and said some words to them in contravention and started filming them on his mobile phone, in contravention of a current AVO. The third set of facts relate to offences against his former partner. He came home, apparently, quite intoxicated, was yelling obscenities in his sleep and then he woke up and called the victim a slut and a bitch, said, "Don't touch her" (as said), even though she was not. He then pushed her extremely hard and it caused her to fall back. She went into the bedroom. He then upturned a glass table and all the items that were on the coffee that he upturned fell off and smashed, including a glass vase that was on the table. He then said aggressively "Where's my wallet?", and she said, "I don't know" and one of the witnesses says, "I don't know where your fucking wallet is".
He became angry at this and started to put his shoes on. The victim has left the bedroom and said, "Please don't go. You're not going anywhere". He pushed her into the chest with force of which caused her to move backwards. She approached him again. Using his arm and hand, he used an extremely large amount of force and struck her on the 5 side of her face, causing her lip to split and bleeding. He then continued to assault her, calling her a slut and accusing her of being unfaithful. At one point, one of the witnesses told him to stop the assault and to get out of the house. He said, "What the fuck are you going to do, you junkie slut?", and put his forehead against hers, standing over her in an intimidating fashion. He was then told to leave. After the initial assault, the victim was sitting on the floor with blood on her jeans. He stood over her and kicked her extremely hard with one foot, winding her and causing blood to come out of her mouth and she said, "I couldn't breathe".
One of the witnesses retrieved a kitchen knife and said, "If I have to stab you, I will, in self-defence", and then the offender left the location. He then kicked the front door causing is to open and to cause damage to the door which rendered it unable to be closed.
[ZXXZ] has provided a letter indicating he is remorseful and having spent some five months, three weeks and six days in custody, he has had an opportunity to contemplate his actions and he has also undertaken a program run by the Corrective Services in relation to domestic abuse and he has received a certificate of acknowledgement for that course. His criminal record, he has one conviction for a driving offence and the other offences that he has got on his record have either been dismissed under s 10 or he has received a conditional release order without conviction which was current at the time of the first in time offences, expiring in June 2019.
His solicitor, Mr Agar, has submitted he is young man, 20 years old, lives with his mum, sister and a brother. He understands the offences are extremely serious and I agree with that. My assessment of the objective seriousness of the offences, with respect to the domestic violence offences against his partner fall, with respect to the assault occasioning, in the lower end of the middle range of objective seriousness. With respect to the assault, also within that range. With respect to the damage to the property, it is probably towards the lower end of the scale of objective seriousness. With respect to the breach AVO, that falls in the lower end of the scale of objective seriousness. With respect to the offences where he head butted the woman causing her injury to her nose, I consider those to be just below the midrange of objective seriousness.
I have taken into consideration his age, his record, his employment and the programmes that he has undertaken, his former employment and the support that he provided to his family and also, the purposes of sentencing pursuant to s 3A, ensuring that there is adequate emphasis placed on specific deterrence which is very important in this case, as well as general deterrence and also, with respect to the protection of the victim and the community from these kind of prevalent offences and also, taking into consideration, s 4A, in relation to domestic violence offenders, I consider that the s 5 threshold has been crossed.
Under the circumstances, I consider that there is no other penalty that would be appropriate other than a sentence of imprisonment 5 for all offences other than the contravene AVO.
IN RELATION TO THE CONTRAVENE AVO OFFENCE, H ENDING 2097, SEQUENCE 1, HE IS CONVICTED AND SENTENCED TO A TWO YEAR 10 COMMUNITY CORRECTIONS ORDER WITH SUPERVISION BY BANKSTOWN COMMUNITY CORRECTIONS OFFICE AND HE IS TO ABSTAIN FROM BOTH ALCOHOL AND DRUGS DURING THE TERM OF THAT BOND.
WITH RESPECT TO THE REMAINING OFFENCES, INCLUDING THE TWO OFFENCES TO BE TAKEN INTO CONSIDERATION ON THE FORM 1, I CONSIDER THE PRINCIPLES OF TOTALITY AND I PROPOSE TO DEAL WITH HIM BY WAY OF A FULLTIME CUSTODIAL PENALTY OF 1
MONTHS AGGREGATE WITH A FIVE MONTH, THREE WEEK AND SIX 20 DAY NON-PAROLE PERIOD, THE INDICATIVE SENTENCES FOR THOSE OFFENCES.
FOR THE ASSAULT, SEQUENCE 2 OF 3160 IS FOUR MONTHS.
FOR THE ASSAULT OCCASIONING IS SIX MONTHS.
FOR THE ASSAULT OCCASIONING IN RELATION TO H ENDING 7872, SEQUENCE 2 IS EIGHT MONTHS.
FOR THE ASSAULT, SEQUENCE 3, IS SIX MONTHS AND THE DESTROY PROPERTY IS SIX MONTHS. I TAKE INTO CONSIDERATION THOSE TWO OFFENCES AS SET OUT ON THE FORM 1.
[ZXXZ], do you understand you have been sentenced to a period of imprisonment today for 12 months, non-parole period, effectively being time served. I have found special circumstances with respect to your age, your need for rehabilitation, so you are eligible for release today, but you are on parole until 4 June next year.
With respect to the other offence of breaching the AVO, you have got a two year Community Corrections order, so you have got to be of good behaviour and abstain from any alcohol or drugs during the period of that bond.
THERE HAS BEEN A FINAL AVO ORDER MADE AND THAT ORDER IS FOR A PERIOD OF TWO YEARS AND IT IS IN TERMS OF O 1 THAT YOU MUST NOT ASSAULT, MOLEST, HARASS, THREATEN OR OTHERWISE INTIMIDATE OR INTENTIONALLY RECKLESSLY DESTROY DAMAGE ANY OF THE PROPERTY OF SHANIA [SY-T] OR [CB], YOU MUST NOT APPROACH SHANIA [SY-T] OR [CB], YOU MUST NOT APPROACH [SY-T] OR [CB] OR CONTACT THEM IN ANY WAY UNLESS IT IS THROUGH A LAWYER, YOU MUST NOT GO WITHIN 100 METRES OF ANY PLACE THOSE PROTECTED PERSONS MAY, FROM TIME TO TIME, RESIDE OR LIVE OR ANY OTHER SPECIFIED PREMISES, NAMELY, APARTMENT AT BANKSTOWN AND YOU MUST NOT POSSESS ANY FIREARMS OR PROHIBITED WEAPONS DURING THE PERIOD OF THAT AVO.
MATTER STOOD IN LIST
[ZXXZ], your solicitor mentioned your matter before. He said you would be coming up unrepresented to deal with the breach of the conditional release order.
HAVING TAKEN INTO CONSIDERATION THE MATTERS FOR WHICH YOU WERE SENTENCED, THE CONDITIONAL RELEASE ORDER WITHOUT CONVICTION HAS BEEN CALLED UP AND I REVOKE THAT CONDITIONAL RELEASE ORDER. I ENTER A CONVICTION AND IN LIEU THEREOF, I SENTENCE YOU TO A CONDITIONAL RELEASE ORDER WITH CONVICTION FOR 12 MONTHS.”[34]
[34] Exhibit 3, G8, Attachment C, pp 43-46.
After his release on parole on 2 December 2019, the Applicant immediately resumed his relationship with Ms CB contrary to the AVO and his conditions of parole. On 17 December 2019, NSW Department of Corrective Services (“DCS”) case notes record:
“When supervision was explained, [ZXXZ] understood and stated that he believes if he re-offends he will be deported and he cannot be deported as he needs to be here to support his family and in particular his disabled brother. He stated he has been a permanent resident in Australia for 5 years. [ZXXZ] insisted on repeatedly stating he will nor re-offend and has learnt his lesson and understands about breaching his order.”[35]
[35] Exhibit 4, TB3, p 88.
DCS records dated 24 December 2019 record the Applicant as stating that he was offered “bupe”[36] by another inmate and during his 6 months in custody, and he had been using it daily.[37]The Applicant confirmed this in his oral evidence.
[36] Buprenorphine is an opiate.
[37] Exhibit 4, TB3, p 89.
DCS case notes of 7 January 2020, indicate that he had already resumed using drugs after being released on parole. The record states:
“[ZXXZ] arrived on time for his interview. He was happy as he stated it was his birthday last week.
DRUGS: [ZXXZ] instantly stated that he had to confess something to CCO. He stated he had two drags of cannabis two days ago when he was hanging out with friends. CCO acknowledged his honesty but reminded him of the drug and alcohol abstinence condition on his order.
[ZXXZ] went into great detail about his history of drug and alcohol use. He stated he was previously using cannabis, MDMA, Xanax, cocaine and occasionally Valium in conjunction with alcohol (predominately vodka) daily. He described his use as a coping mechanism for the disloyalty in his relationship with his girlfriend and friends.
PSYCHOLOGIST: [ZXXZ] informed CCO that he booked an appt to see a psychologist however the next available appt is March 2020 (as casenoted by CM Brittany Murray on 24/12/19). He did state he will try and call to get on a cancellation list to get in earlier.
SELF HARM: [ZXXZ] disclosed he was cutting his wrists four years ago. He stated his girlfriend used to do it and so everytime she did it, he would do it. He stated it then became an addiction and everytime he got angry he would do it which went on for around a year. [ZXXZ] stated he has not cut his wrists since around 2015. He stated he was using a variety of drugs daily, he became very depressed. He stated on one occasion he went to a carpark, took 5/6 valium and vodka and jumped off the carpark failing 3 stories. He stated he does not recollect any of this as he was so heavily intoxicated but believes he fell on a soft landing and police informed him of what happened when he woke up.
IDENTIFY
PGI 1.2 Offence Map was started and will be revised on his NTR
DESCRIBE
[ZXXZ] would often go into great detail regarding the previous offences regarding his ex-girlfriend and friends (who are now PINOPs). CCO was able to gather a lot of information in regards to his drug use, friendship and relationship circles and mental health however struggled to keep [ZXXZ] on track with the offence mapping. CCO will explore the offence map further on his NTR.
[ZXXZ] identified the effects of drug use on himself and the way he loses control over his emotions when drinking. He stated that he fears disappointing his family as the word has travelled that he has been arrested and friends of the family are now scared to visit their home. He stated that working and keeping himself busy will help keep him out of trouble.
VERBAL DIRECTION: [ZXXZ] was given a verbal direction to CEASE any drug or alcohol use in which he agreed and apologised. [ZXXZ] was reminded that he is subject to random alcohol and drug testing.
ACTION PLAN
A referral has been made with drug health services for 20/2/20 at 1:30pm. Referral form to be signed on NTR.”[38]
[38] Ibid, TB3, p 90.

The Applicant was working in Canberra for a few weeks in early January 2020.[39] He was back in Sydney by 28 January 2020. He told the Tribunal that by this time he was using at least cannabis, daily. He was also using cocaine, MDMA, Zanex and alcohol from time to time.
[39] Ibid, TB3, p 92.
At this time, he said that he was living with Ms CB at her parent’s house, or a motel. The Applicant said that whilst he was in Canberra, he had heard that Ms CB was sleeping with his best friend. He told the Tribunal that this led him to become angry and upset. He drank a lot.
On 18 March 2020, the Applicant went to a motel where Ms CB was staying to confront her about her relationship with his best friend. He assaulted Ms CB in her emergency accommodation.[40] This matter eventually came before the Bankstown Local Court on 1 September 2020.
[40] Exhibit 3, G7, Attachment B, p 38.
On 21 March 2020, the Applicant was arrested and taken into custody. He has been in custody since that time.[41]
[41] Ibid, G9, Attachment D, p 49.
On 8 May 2020, the Applicant again completed the Remand Domestic Violence program.[42]
[42] Exhibit 4, TB3, p 135.
On 12 May 2020, DCS records indicate that the Applicant showed disregard when being told what to do and that he disrupted officers. The record relevantly states:
“Inmate [ZXXZ] abusive and disrespectful towards staff, disobeys direction and verbally abuses staff. Was spoken to on the 12/05/2020 regarding this behaviour and stated “i don’t give a fuck what are you cunts going to do”.”[43]
[43] Exhibit 6, p 20.
DCS records dated 26 May 2020 record the Applicant as having refused to follow directions to attend muster and get off his phone. His response to the officer was “I don’t give a fuck, charge me.”[44]
[44] Exhibit 4, TB3, pp 166-172.
These instances were put to the Applicant. He accepted that he had been abusive. He explained that on 26 May 2020, it was all about needing access to the phone to speak with his mother.
DCS records dated 7 June 2020 record the Applicant as having been involved in a fight with another inmate.[45]
[45] Ibid, TB3, pp 148-165.
On 13 August 2020, DCS case notes record:
“[ZXXZ] struggled to identify the impact on the victim and continually verbalised the impact on himself.”[46]
[46] Ibid, TB3, p 96.
The Applicant gave an account of this to the Tribunal. He said that he had intervened to protect a disabled prisoner from harm. Again, the fault lay with the other party, not him.
On 1 September 2020, the Applicant again appeared Bankstown Local Court charged with multiple offences including contravention of an AVO, assault occasioning actual bodily harm and contravention of a prohibition/restriction in AVO. These arose from the events of 18 March 2020. He entered a plea of guilty on two of the charges and was convicted and sentenced to 18 months imprisonment with a non-parole period of 12 months commencing on 21 March 2020 concluding on 20 March 2021.[47]
[47] Exhibit 3, G6, Attachment A, pp 33-34, G7, Attachment B, pp 37-42 and Exhibit 4, TB1, p 54.
The learned Magistrate made the following remarks on sentence:
“……
HIS HONOUR: I am in a position to give remarks on sentence. The offender is to be sentenced in relation to H74808879 sequence 1, that between 12pm and 3.40pm on 18 March 2020 at Bass Hill, he did knowingly contravene a prohibition specified in an order. In relation to sequence 2, he is to be sentenced in that between 12pm and 3.40pm on 18 March 2020 at Bass Hill, he did assault [CB] therefore occasioning actual bodily harm to her. The maximum penalty for sequence 1 is one of two years imprisonment. The maximum penalty for sequence 2 is one of five years imprisonment.
I have a jurisdictional limit of two years in relation to an individual offence that is by way of imprisonment. I must assess the objective seriousness of any 45 offence as against the maximum penalty prescribed by Parliament. I have power to accumulate sentences up to five years’ imprisonment pursuant to s 58 of the Crimes (Sentencing Procedure) Act. I note that s 14(4) of the Crimes (Domestic And Personal Violence) Act requires a sentence of imprisonment to be imposed if there is a contravention of an AVO as a result of an act of violence. I am to impose a term of imprisonment for such an offence unless it is appropriate not to do so.
Pleas of not guilty were entered on 24 March 2020. Pleas of guilty were entered on 15 July 2020. These pleas were not at the earliest time but attract a discount of 15% from any otherwise appropriate sentence; see R v Thompson and R v Borkowski. The facts in relation to these matters are set out in agreed facts which are before the Court. They form the evidentiary basis for the findings of fact to find as to the objective seriousness and any moral culpability.
The offender was born on 1999 and the victim was born on 2003 and they had been in an intimate relationship which ended in mid-2019. An apprehended violence order was served upon the offender for the protection of the person in need of protection being the victim in the offending behaviour. The order was enforceable and is enforceable up to and including 1 December 2021. The conditions were that he must not assault or threaten her, that he must not approach her in any way unless through a lawyer or go within 100 metres of any place where she works or lives. He was not to possess any firearms or prohibited weapons.
In December 2019, the person in need of protection and the offender recommenced their relationship contrary to those court's orders. During February 2020, the victim gained emergency housing and was provided with temporary accommodation as at the WM Hotel in Bass Hill. She was provided with accommodation at room 31. It should be noted that there are cameras at that particular hotel which face outwards and are directly into the car park. The footage is of high definition and captures any persons or vehicles which come or go.
Sequence 1 was committed in circumstances where, at 12pm on Wednesday 18 March, the couple were in room 31 at the hotel and an argument developed. There had been an allegation of the person in need of protection having a sexual liaison with another person. The offender became increasingly aggressive. He took hold of the back of her head with his right hand and pulled her hair. This caused her pain.
He then pushed her into a nearby wall causing her further pain. She yelled out, “Stop please, you’re hurting me,” and his reply was, “Does it look like I care? I don’t give a fuck.” She fell to the ground in pain and then he committed the second offence of assault occasioning actual bodily harm. He stood over her and started to punch her in the face with both hands. The strikes landed on both sides of her face. He continued punching her and landed further strikes to her right kidney region and then in the middle of her chest.
That strike to the chest caused her to feel breathless. The force of the strike caused her to say, “Let me get my puffer.” He replied, “I don’t give a fuck.” He then used his right foot to stomp on the right side of her face. He continued to assault her by punching her left and right arms. She started to cry. It is unknown how long the incident lasted. It was described by the victim as lasting, “Forever.” She sustained several black bruises to her body due to the assault and was bleeding from her mouth and nose. After that assault, the offender opened the hotel door and the person in need of protection, being the victim, ran outside.
He called out to her to get her shoes on and, “So you want to be a little dog, get people to snitch on me to the police? I’ll take you to the park.” Out of fear, she complied with him and walked with him towards a nearby park. At 2.39pm, they are captured on CCTV footage walking out of the car park on foot. From that footage she is holding a white tissue with her right hand towards her nose and it appears that her nose is bleeding. At a period of time thereafter, she ran back in the direction of the hotel and asked for help from members of the public. The assistance of paramedics was summonsed; a short time later they attended, she was conveyed to Bankstown Hospital for further treatment. She suffered no ongoing health issues as a result of the assault.
On 20 March, she reported the matter to the Bankstown Police and detectives commenced an investigation. Ultimately the offender was arrested in relation to the matter and was placed before the Courts. In assessing the objective seriousness of the assault occasioning actual bodily harm offending, I bear in mind that it occurred in a domestic relationship with, I infer, a physically-stronger offender as compared to the victim. The force used was significant, both the punching and striking to the face and body, then a stomp to the right side of the face to a person on the ground.
The intention in so assaulting I find to be the cause of significant pain and damage, that is, he intended to hurt her. The victim was entitled to feel protected as a court order was in effect to protect her. It was breached by substantial violence. Both offences carry substantial objective seriousness. The offences were committed whilst the offender was on conditional liberty.
On 2 December 2019, for the offence of contravention of an AVO on 27 March 2019, the offender was ordered to enter a Community Corrections Order for two years on 2 December 2019 with supervision by Community Corrections. He breached that order after approximately two and a half months. There is no good reason not to revoke the order. The breach demonstrates doubt on the ability of a court to trust the offender. Furthermore, doubt is thrown upon his capacity to rehabilitate and not reoffend.
At the time of that initial offending he was also on conditional liberty arising from a conditional release order being imposed for six months without conviction on 12 December 2018 for the domestic violence offence of damaging property proved to have been committed on 10 May 2018. The facts in relation to the contravention of 27 March are before me and I move to read them on re-sentencing.
This time, the victim was [RK] (?) born on 2003. There was a witness who was her sister. On 19 February, the offender was served with a provisional apprehended domestic violence order listing himself as the defendant and Ms [RK] as the person in need of protection. He was not to assault her, stalk, harass her, intimidate her or damage her property and he was not to approach her or contact her in any way unless through a lawyer and not to go within 100 metres of any place where she lived or worked.
At about 4pm on Wednesday 27 March 2019, the person in need of protection and, I infer, her sibling were in the Paul Keating Park. Other friends were present. They sat down and were talking. A short time later, the party saw the offender with another female walk towards them and sit down on a nearby bench approximately 10 metres away from the victim. He started saying to the victim, “Go away,” and, “There’s two rats sitting over there.” He began recording the victim and her sister while sitting 10 metres away from them. He began saying, “Walk away. I have an AVO against you. Walk away you and your sister for my own safety.” During the incident he remained seated on the bench.
The witness walked towards him and said, “Stop recording. We have an AVO against you. You are not the one who is supposed to be near us.” A short time later, police attended the location and separated the parties to obtain details. The victim and the witness disclosed to the police the terms of the AVO. Police conducted checks, realised that there was an enforceable AVO and that the offender was the defendant. Subsequently he was arrested, conveyed to Bankstown Police Station and ultimately was placed before the Courts. I would assess the objective seriousness of breaching a court order as not insignificant.
The victim was again entitled to feel protected by a court order. There was also moral culpability in the sense of the ongoing harassment of the victim. The subjective case is that he was born, as I have said, on 1 January 1999 and so as at 27 March 2019, he was 20. As at 18 March 2020, he was and is 21. His criminal record does not, in my view, entitle him to leniency. He has a number of entries now for domestic violence-related offending.
On 2 December 2019 he was sentenced to imprisonment for 12 months for the domestic violence-related offence of assault occasioning actual bodily harm, two counts. It appears that the victim is the same as the offence of the current matters.
The sentence commenced on 5 June 2019 as he had been in custody, bail refused, and concluded as a non-parole period on 1 December 2019. Accordingly, he was on parole as at 18 March 2020. A similar sentence as part of the aggregate sentence was imposed for two counts of common assault and damaging property. It was, with the greatest of respect to the sentencing bench, a lenient sentence.
A report of Chafic Awit, psychologist, dated 21 August 2020 was tendered. He opined that the offender is suffering from post-traumatic stress disorder, major depressive disorder, substance use disorder and alcohol use disorder, thus he may not be an appropriate vehicle for weight to be given to general and specific deterrence, but weight may be necessary to be given to protecting the community and recognising the harm he does by continued offending. I accept that he had a traumatic and disruptive childhood in Syria. I accept that he struggled when he came to Australia. I accept that he obtained work through his family. I have difficulty accepting his expressions of remorse given his reoffending whilst on conditional liberty. I accept that his conditions render his ability to control his emotions as problematic.
These findings are supported by the other medical material tendered in the offender’s case and viewed by Mr Awit. A sentencing assessment report was prepared. It confirms the offender’s background. He offends whilst under the influence of drugs and/or alcohol. That is not a mitigating factor. The author of the report suggests that the offender minimises his criminality and, to some extent, blames the victim. In my view, this demonstrates his immaturity.
Whilst in custody he has completed the domestic violence program. He has engaged with the psychologist whilst in custody. He is assessed as a medium risk of reoffending and requires significant supervision to ensure adaption to a lawful lifestyle.
In considering the factors under s 3A of the Crimes (Sentencing Procedure) Act, some weight must still be given to his rehabilitation. An appropriate sentence must be imposed under s 21A(1) having taking into account aggravating factors under s 21A(2) and mitigating factors under s 21A(3). Under s 21A(2) the offences were committed whilst on conditional liberty; see 25 s 21A(2)(j). I am not satisfied that the most recent offences occur in the home of the victim given the circumstances of temporary stay.
Under s 21A(3) and s 22, the plea is the only mitigating factor that, on balance of probabilities, I accept. Any self-intoxication is not a mitigating factor; see 30 s 21A(5AA). It was submitted that there was an acceptance that full-time custodial sentences would be imposed. It was submitted that on the basis of the psychologist’s report and the sentencing assessment report, that special circumstances exist requiring an alteration of the statutory ratio contained in s 44 of the Crimes (Sentencing Procedure) Act. I agree.
It was submitted that any sentence should commence from when bail was refused. I accept that. It was accepted that this would involve partial accumulation in relation to the sentence which he was serving from 5 June 2019. This also provides a basis for special circumstances under s 44. I shall employ s 53A and 53B of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence.
The indicative sentences are, in relation to H266412097, sequence 1, being the offence of contravention of an AVO on 27 March 2019, an indicative sentence of three months’ imprisonment. In relation to H74808879, sequence 1, contravention of an AVO on 18 March 2020, five months’ imprisonment, and on sequence 2, assault occasioning actual bodily harm, 15 months imprisonment.
I IMPOSE AN AGGREGATE SENTENCE BY WAY OF A TERM OF IMPRISONMENT OF 18 MONTHS TO COMMENCE ON 21 MARCH 2020 AND ULTIMATELY EXPIRE ON 20 SEPTEMBER 2021. I SET A NON-PAROLE PERIOD OF 12 MONTHS’ IMPRISONMENT FROM 21 MARCH 2020 EXPIRING ON 20 MARCH 2021.
He will be supervised on parole and will be released on parole on 20 March 2021. The link can be terminated. Thank you Mr Ahmed for your attendance.”[48]
[48] Exhibit 3, G7, Attachment B, pp 37-41.
On 20 March 2021, the Applicant was released on parole and taken into immigration detention at Villawood.[49] The Applicant conceded in evidence that he continued to use drugs for some months after this. He says that he stopped using in mid-2021.
[49] Ibid, G30, Attachment Q, p 156.
On 20 September 2021, the sentence imposed by the court expired. If the Applicant were returned to the community, he would not be on parole.
By letter dated 21 September 2020, the Applicant was advised of his Visa cancellation under section 501 (3A) of the Act. He was invited to make representations to the Minister about revoking the cancellation decision.[50] On 8 April 2021 the Applicant made an application for a protection visa.
[50] Ibid, G11, Attachment F1, pp 52-58.
On 30 April 2021 the Applicant was sent an invitation to comment on his criminal offences in accordance with section 57 of the Act.[51]
[51] Ibid, G34, Attachment T, p 212.
On 12 May 2021 the Applicant responded to the invitation to comment on his criminal offences. He submitted a written statement together with a letter dated 10 May 2021 from psychologist Mr Sava Tsolis and a report from psychologist Mr Chafic Awit dated 21 August 2020.
On 21 May 2021, Mr Tsolis produced a psychological assessment report.[52] A number of psychometric tests were administered by Mr Tsolis. On 24 May 2021 a copy of this report was provided to the delegate considering the Applicant’s application for a protection visa. The opinion, diagnosis, recommended treatment plan and assessment of risk of further recidivism were as follows:
[52] Ibid, G18, Attachment L1, pp 101-107.
“……
Post Traumatic Stress Disorder (PTSD). The severity of this disorder is estimated to be in the severe range.
The Depression Anxiety and Stress Scale (DASS-21)
In order to understand [ZXXZ’s] current level of psychological distress the DASS was administered. Lovibond and Lovibond developed the DASS in 1995, and it is a widely used psychological instrument used for assessing psychological distress, in the domains of stress, depression and anxiety.
At the time of the assessment [ZXXZ] was found to be experiencing depressive symptoms in the "moderate" descriptive range, at the 95th percentile. This suggests he is experiencing these symptoms equal to or greater than approximately ninety-five percent of the general population. He also obtained scores on both stress and anxiety in the "extremely severe" range at the 99th percentile.
The Brief Cognitive Status Exam (BCSE)
The Brief Cognitive Status Exam (BCSE) measuring global cognitive functioning from the Weschler Memory Scale-Fourth Edition (WMS-lV) was administered on 26th March 202I. The BCSE evaluates basic cognitive functions through tasks that assess orientation to time, incidental recall, mental control, planning/visual perceptual processing, inhibitory control and verbal productivity.
[ZXXZ’s] global functioning, as measured by the BCSE, was in the Low Average range, comparable to 1Oth to 24thpercentiles compared to others within his age group, with a similar education background. Functioning in this range is typically associated with at least mild impairments in cognitive functioning. [ZXXZ] is living with longstanding PTSD and mood issues and some cognitive impairment.
Opinion and Diagnosis
As the result of a combination of clinical interview, results of the DAPS, DASS a BCSE, [ZXXZ] clearly meets the criteria for Post Traumatic Stress Disorder (PTSD) as determined by DSM-5 criteria, and he has been significantly by the trauma at all levels of functioning. His decision-making is further impaired by his cognitive difficulties and he is therefore easily led and quite gullible. This in no small way contributed to his offending.
At the time of the clinical assessment, [ZXXZ] meets criteria for a primary diagnosis of Posttraumatic Stress Disorder and a secondary diagnosis of Major Depressive Disorder as found in the DSM-5.
Recommended Treatment Plan
In light of [ZXXZ’s] presenting issues, it was recommended that he commence an individual psychotherapeutic program specifically addressing the issues associated with his depressive symptomatology and posttraumatic stress disorder.
Therapy should also seek to establish pro-social behaviours such as engagement with his community, family involvement, supportive peer group, and, eventually, hobbies and interests. The latter strategy should take more of a long-term focus and aim to provide the foundations of a new lifestyle that decreases the risk of re-offending.
Finally, I would also like to focus on value-oriented goal setting for [ZXXZ] in the hope that he will be clearer in setting appropriate boundaries in any future intimate relationships. [ZXXZ] has also described a plan to continue to engage with his faith for support and solidify the already strong bond that he shares with his mother, younger sister and disabled brother.
The following psychotherapeutic treatment protocols focused on assisting [ZXXZ] with posttraumatic stress symptomatology will be included in his treatment plan:
1.Psychoeducation on the nature of fight/flight response and the physiological, cognitive and behavioural components of this response;
2.Cognitive defusion strategies to assist [ZXXZ] in dealing with cognitions associated with the flight/fight response;
3.Mindfulness training and relaxation strategies to enable [ZXXZ] to cope more adaptively to physiological arousal and emotional distress.
Furthermore, the following components associated with assertiveness skills training will be implemented:
1.Psychoeducation on defining assertiveness and teaching [ZXXZ] about different types of response options;
2.Direct instruction in nonverbal and verbal skills, such as body language, eye contact, modulation of tone/volume and word choice;
3.Practicing assertiveness skills through behavioural rehearsal, role-playing and response practice.
The Potential for Further Recidivism of [ZXXZ]
[ZXXZ] has had an intense period of introspection since March 2020.The resultant insight that he has gained into his own psychological trauma and behaviours coupled with his commitment to seek treatment for his longstanding posttraumatic stress disorder stands him in good stead to make significant changes to his psychosocial functioning.
[ZXXZ] is a young man who is the sole provider for his mother, sister and disabled brother. He has a good work ethic and has employment at Allied Constructions if released. He has finally garnered the insight that his past psychological traumas must be treated. As aforementioned he is highly motivated to do so.
I do not believe that [ZXXZ] exhibits an entrenched criminal proclivity or propensity to engage in offending behaviours. His criminal offence demonstrates his gullible nature and his poor cognitive functioning. He is clearly an impressionable man who recklessly committed an offence that he did not orchestrate.
It should be noted that on multiple occasions throughout our therapy sessions, [ZXXZ] has expressed remorse for his actions pertaining to the offence. He has also repeatedly expressed that he has no intention of re-offending in the future.”[53]
[53] Ibid, G18, Attachment L1, pp 105-106.

Then raises a different, but associated issue of the possibility indefinite detention, if the Applicant’s visa were not to be restored.
I am bound to apply Direction 90. I note clause 9.1(3) which says:
“However, that does not mean the existence of a non-refoulment obligation precludes refusal or cancellation of a non-citizen’s visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulment obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions……..”
If the Tribunal were to affirm the decision under review, the Tribunal cannot therefore assume that Applicant would therefore most probably remain in immigration detention with no ‘chronologically fixed endpoint’ (“indefinite detention”).[84] That could yet be changed by the pending decision of this Tribunal in relation to the Applicant’s protection visa. It could be changed by Ministerial action.
[84] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
There is nothing before the Tribunal to suggest that the Applicant would be granted any other class of visa by the Minister. That said, I note the decision of Jagot J in BNGP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[85] it states:
[85] [2022] FCA 878.
“……
The contemplation of this possibility, that a Minister might exercise these powers in the future, is not irrational and does not lack good faith. It is within ordinary human experience that, over time, Ministers change and Ministers change their minds. At the time the Minister made this decision, 7 March 2022, it was a notorious fact, of which judicial notice may be taken, that there would be a Federal election within a few months. Even without that fact, the Minister must be taken to have known that relevant circumstances may change, Ministers may change and Ministers may change their minds. These were all rational possibilities at the time the Minister made the decision.
It follows that the Minister’s assessment, that the applicant faced “the prospect of immigration detention for an indefinite period”, was accurate. The Minister did not purport to suggest that this prospect was other than the most likely. He accepted and confronted this as the most likely prospect for the applicant, subject to the possibility of a Ministerial exercise of power the effect of which would be to release the applicant into the Australian community from detention under the Migration Act. The relevance of this for the legality of the Minister’s consideration of the national interest is that, unlike CWY20, there was no accepted and inevitable breach of Australia’s international non-refoulement obligations as there would have been if the applicant in that case had been deported to Afghanistan. Rather, there was a likelihood that the applicant would face indefinite detention in Australia, subject to a possibility of a Ministerial exercise of power ending that detention in the future. When assessing the issue of the legal reasonableness of the Minister’s evaluation of the national interest, the difference cannot be disregarded.
Proposition (c) above (indefinite detention is a breach of Australia’s international obligations under various instruments to which Australia is a party) is also contestable. In CWY20 the Acting Minister found that removal of the applicant in that case to Afghanistan would breach Australia’s international non-refoulement obligations. There is no equivalent finding in the present case that indefinite detention of the applicant (or, accurately, the prospect, in the sense of likelihood of, indefinite detention of the applicant) would be a breach of Australia’s international obligations. Nor is that manifestly correct.
Article 9.1 of the ICCPR provides that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The UHDR provides that:
Article 3
Everyone has the right to life, liberty and the security of person.
…
Article 5
No one shall he subjected to torture or to cruel, inhuman or degrading treatment or punishment.
…
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 16 of the CAT provides that:
Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
I do not dispute that it is reasonably arguable, and may be correct, that the indefinite detention of a person under the Migration Act as a result of the operation of ss 189, 196 and 197C(3) may place Australia in breach of some or all of these international obligations. It may also be the case that such detention is in breach of Australian law (see below). The point I am making is that in deciding whether a decision is legally unreasonable or not, in effect, because the decision-maker did not consider the full legal consequences of the decision, there may be a material difference between a legal consequence which is accepted by the Minister to be inevitable or is certain (that is, as in CWY20 and ENT19, that return of the person to a particular country would breach Australia’s international non-refoulement obligations) and a legal consequence which is merely probable or reasonably arguable – in this case, both because there was a rational possibility of the Minister exercising a power the effect of which would be to release the applicant from detention and because it is not certain that the indefinite detention of the applicant under the Migration Act would be in breach of Australia’s international obligations.
……”[86]
[86] Ibid, [42]-[48].
Keeping the Applicant in indefinite detention may be contrary to Australia’s international obligations and hence, national interests. In this regard I note that in BNGP, Jagot J states:
“……
I do not need to decide if these contentions are right or wrong. The relevant point for present purposes is that the alleged legal consequence of the Minister’s decision, being indefinite detention in breach of Australia’s international legal obligations, is contestable. The principle that the Minister making a decision under s 501 of the Migration Act must consider the legal consequences of the decision being made (NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1) applies to the inevitable and direct legal consequences of the exercise of the statutory power in question. As far as I know it has not been held that in making such a decision under s 501 or in evaluating the national interest of exercising the ultimate discretion under s 501A(2), the Minister must take into consideration, if relevant in the circumstances, a reasonably arguable but contestable legal consequence of the decision or else the decision will be legally unreasonable.
The Minister submitted that CWY20 is not authority for the proposition that, in forming the state of satisfaction described in s 501A(2)(e), a failure by a decision-maker to have regard to Australia’s international non-refoulement obligations will result in that state of satisfaction not being attained reasonably. I agree. CWY20 is authority for the proposition only that such a decision may be legally unreasonable depending on the circumstances.
The Minister submitted that the observations of Allsop CJ in CWY20 are not to be understood as saying that Australia’s international non-refoulement obligations are a mandatory relevant consideration in every decision under s 501A(2) of the Migration Act. Again, for the reasons already given, I agree.
The Minister submitted that the better view is that CWY20 stands for the narrower proposition that, depending on the circumstances of the case, a failure to take Australia’s international non-refoulement obligations into account in forming the state of satisfaction in s 501A(2)(e) may supply the inference that the decision-maker did not attain that state of satisfaction reasonably. I agree other than that a conclusion of legal unreasonableness is not an inference – it is a legal conclusion. As such, the better view of CWY20 is that, depending on the circumstances, a failure to consider Australia’s international non-refoulement obligations (a non-mandatory consideration) may make a decision legally unreasonable.
The Minister submitted that even if CWY20 remains good law following the High Court’s judgment in Plaintiff M1 (which the Minister disputes), it does not control the outcome of this case. Again, I agree for the reasons already given.
As noted, the conclusions in ENT19 involved a statutory context (the absence of s 197C(3) of the Migration Act) and facts different from the present case. In particular, in ENT19 the Full Court characterised the applicant’s grievance as that he “would be refouled, regardless of his wishes”, and this reflected the relevant statutory provisions in that case (which did not include s 197C(3)): [56]. But, as also discussed, the reasoning of the Full Court in ENT19 also proceeded on a broader basis, that the legal consequences of the Minister’s decision included either refoulement in breach of Australia’s international obligations or indefinite detention, and that in evaluating the national interest, it was legally unreasonable for the Minister not to consider those legal consequences.
This reasoning in ENT19 appears to have assumed that continued detention (as required by ss 189 and 196), if the person could not be removed due to Australia’s international non-refoulement obligations, would be indefinite detention in breach of Australia’s international obligations. The reasoning in ENT19 also appears to have assumed that such continuing detention would be lawful under Australian law, despite the detention (arguably) not being for the purpose of removal or assessment. In this regard I note that in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562, also decided before the insertion of s 197C(3) into the Migration Act, the High Court said at [26]:
The correctness of the constitutional holding in Al‑Kateb [Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562], that ss 189, 196 and 198 are valid insofar as they authorise and require detention of an unlawful non-citizen even where removal is not reasonably practicable in the foreseeable future, does not arise for consideration in the present case.
This critical question arises (but, insofar as I am aware, remains unanswered, particularly in the context of the operation of s 197C(3) of the Migration Act) because of the principle from CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [374] per Gageler J that:
deriving from Ch III of the Constitution, …a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved.
In support of this proposition, his Honour cited Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 at 33; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [138]–[140]; and Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; (2014) 253 CLR 219 at [25]–[29].
This question also does not arise directly in the present case. It arises indirectly only in that the continuing detention of a person in accordance with ss 189 and 196 of the Migration Act, who is not able to be returned to a country due to international non-refoulement obligations (now as provided for in s 197C(3) of the Migration Act), may be in breach of Australian law. If it is in breach of Australian law, the detention can and will be brought to an end by a court of competent jurisdiction in response to an application to that end brought by the applicant. For present purposes what is relevant is that this reinforces the contestable character of the applicant’s proposition that a legal consequence of the Minister’s decision will be the indefinite detention of the applicant and that such indefinite detention will place Australia in breach of its international obligations.[87]
[87] Ibid [51]-[60].
There is no doubt that prolonged detention, would be bad for the Applicant. It may adversely impact on his mental health and perhaps increase his risk of relapsing into drug use. He could be of no assistance to his mother or brother. In my view, this other consideration weighs heavily in favour of revocation.
(b) Impediments if removed.
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
This other consideration is only relevant in the highly unlikely event of the Applicant requesting to be removed. He has given no indication that he wants to be removed.
The Applicant and the Respondent submitted that this other consideration is neutral for the reasons set out above. I agree.[88]
[88] See also SQHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2002] AATA 2810.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence on this point.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has very significant links to the Australian community. His mother, sister and brother are either citizens (his brother) or permanent residents. His mother has very limited English skills. She is living as a widowed woman, caring for a dependant disabled son, with no adult male in her household. She fears that now that her daughter has married, she will have no help to care for her disabled son, if the Applicant is deported.[89] Her brother and sister-in -law live in Woolongong and only visit occasionally. Her daughter is presently in Australia. She is pregnant and will not visit her mother for fear of her brother hurting her or her baby. Once the baby is born, she intends to travel to and remain in, the Middle East. It is also the case that the Applicant has been in prison and detention since 21 March 2020. During this period his mother, and brother have had no alternative other than to look after themselves, without his help. There has been some assistance from NDIA. His mother is on a pension. She has supported housing.
[89] Ibid.
When the Applicant was not in prison, he conceded in evidence, that he did not help his mother much with his brother. There is little evidence of him having actively supported his family prior to his incarceration. His mother spoke of his sister helping her before she married, not the Applicant. His past consumption of drugs alone would have left very little money spare for his family. If his visa cancellation were not revoked, his mother and brother would continue as they are. This would be hard for his mother, in particular. If the Applicant were to be released and not to resume his drug abuse, not to re-offend, and be employed, he may be of practical, emotional and financial support to his family. This would, on the evidence, be much more than he has done in the past. If he returned to drug abuse, any earnings that he might have, would possibly be feeding his addictions. He would possibly even be a burden on his mother. There is no evidence to suggest that he has ever been anything more than a casual helper with his brother’s care.
The Applicant came here when he was 15 years of age. He is now 23. He has a consistent record of offending since he turned 18. He has however been usually employed, at least until 21 March 2020. Although the Applicant has helped his family to some degree and earned a living, he has also been a significant drain on society for much of the time that he has been here.
This Other Consideration (d), paragraph 9.4.1 of the Direction, on balance, weighs in favour of revocation. It would carry more weight, if the Applicant had a history of having been a major carer for his brother.
Impact on Australian business interests
There was no evidence on this topic so this consideration is neutral.
This Other Consideration (d), paragraph 9.4.2 of the Direction, weighs in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral.
(b)extent of impediments if removed: neutral.
(c)impact on victims: neutral.
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation; and
(e)the impact on Australian business interests: neutral.
(f)The possibility of indefinite detention: weighs in favour of revocation.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against. revocation.
Primary consideration 2 weighs heavily against revocation.
Primary consideration 3 is neutral.
Primary consideration 4 weighs heavily against revocation.
Other considerations, (c) and (e) are neutral.
Other Considerations (a) and (b) are also neutral for the reasons set out above.
Other considerations (d) and (f) weigh in favour of revocation.
In this case, the Applicant has been an offender for much of the time that he has been in this country. His offending is very serious. This weighs heavily against revocation under primary considerations 1, 2 and 4 for the reasons set out above. This must be balanced against his links to the Australian community. This other consideration would carry much more weight than it does, if the Applicant had a significant track record in the care of his disabled brother. A significant weight in favour of revocation lies in the possibility of lengthy, indefinite detention and all its impacts on his health and welfare. The Tribunal does not have the power to grant a conditional visa, or impose parole like supervision requirements. The Applicant is either returned, unsupervised to the community, with all the significant associated risk of harm to others, particularly women, that would entail, or he is detained for an unknown period of time. Striking the balance between these diametrically opposed considerations and interests is very difficult.

I note the comments of Senior Member O’Donovan in SQHG:
“……
It is not an easy choice to make between taking steps to diminish the risk that a non-citizen poses to the Australian community and condemning a person to further detention in circumstances which are likely to cause psychological damage to them when they have already spent a significant period of their life in prison for a crime they committed as a teenager.
While the other considerations discussed above are influential, in the end I have decided that in circumstances where there is a likelihood that the applicant will be released into the Australian community at some point in the future regardless of the decision which I make, the best method of protecting the Australian community is to release the applicant now when he will be subject to parole conditions and be supervised for a period. This will maximise his prospects of re-integration into the community. A temporary delay in releasing him means he may be released into the community at some later point but without the discipline of parole conditions and possibly further down the road of drug use and violence as a consequence of his further period of detention.
Consequently, I have decided to exercise my discretion favourably to the applicant.
……”[90]
[90] SQHG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2002] AATA 2810, [151]-[153].
In this case, for the reasons set out above, I have come to the view that a different balance exists to that found in SQHG.[91]
[91] Ibid.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
Decision
The decision under review is affirmed.

I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

................[sgnd]....................................
Legal Administrative Assistant

Dated: 7 September 2022

Date of hearing: 23 & 29 August 2022

Advocate for the Applicant:

Mr Nicholas Poynder

Frederick Jordan Chambers

Advocate for the Respondent:
Ms Mia Donald

Sparke Helmore Lawyers

Annexure A – List of Exhibits

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions filed 14 August 2022

2

Respondent

Statement of Facts, Issues and Contentions filed 18 August 2022

3

Respondent

G-Documents filed 6 July 2022

4

Respondent

Tender Bundle filed 18 August 2022

5

Applicant

Applicants Revised Statement of Facts Issues and Contentions filed 25 August 2022

6

Respondent

Summons Material (Department of Communities and Justice) filed on 26 August 2022

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Bankstown Local Court

04/05/2018

Common assault – T2

Dismissed S 10

Bankstown Local Court

13/06/2018

Never licensed person drive vehicle on road – first offence

Fine: $300

Fairfield Local Court

12/12/2018

Assault occasioning actual bodily harm (DV) – T2

Dismissed S 10

Fairfield Local Court

12/12/2018

Common assault (DV) – T2

Dismissed S 10

Fairfield Local Court

12/12/2018

Destroy or damage property <=$2000 (DV) – T2

Conditional release order without conviction: 6 months

Bankstown Local Court

02/12/2019

Common assault – T2

Imprisonment: 12 months

Bankstown Local Court

02/12/2019

Assault occasioning actual bodily harm – T2

Imprisonment (Aggregate): 12 months

Bankstown Local Court

02/12/2019

Stalk/intimidate intend fear physical etc harm (domestic) – T2

Taken into account on Form 1

Bankstown Local Court

02/12/2019

Common assault (DV) – T2

Taken into account on Form 1

Bankstown Local Court

02/12/2019

Destroy or damage property (DV)

Imprisonment (Aggregate): 12 months

Bankstown Local Court

02/12/2019

Common assault (DV) – T2

Imprisonment (Aggregate): 12 months

Bankstown Local Court

02/12/2019

Assault occasioning actual bodily harm (DV) – T2

Imprisonment (Aggregate): 12 months

Bankstown Local Court

02/12/2019

Contravene prohibition/restriction in AVO (Domestic)

Community Correction Order: 2 Years

Bankstown Local Court

02/12/2019

Destroy or damage property <=$2000 (DV) – T2

(Call Up – Breach) Conditional Release Order – Conviction: 12 months

Bankstown Local Court

01/09/2020

Contravene prohibition/restriction in AVO (Domestic)

Imprisonment (Aggregate): 12 months

Bankstown Local Court

01/09/2020

Assault occasioning actual bodily harm (DV) – T2

Imprisonment (Aggregate): 18 months

Bankstown Local Court

01/09/2020

Contravene prohibition/restriction in AVO (Domestic)

(Call Up – Breach) Imprisonment (Aggregate): 18 months

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions filed 14 August 2022
2	Respondent	Statement of Facts, Issues and Contentions filed 18 August 2022
3	Respondent	G-Documents filed 6 July 2022
4	Respondent	Tender Bundle filed 18 August 2022
5	Applicant	Applicants Revised Statement of Facts Issues and Contentions filed 25 August 2022
6	Respondent	Summons Material (Department of Communities and Justice) filed on 26 August 2022

Court	Court Date	Offence	Court Result
Bankstown Local Court	04/05/2018	Common assault – T2	Dismissed S 10
Bankstown Local Court	13/06/2018	Never licensed person drive vehicle on road – first offence	Fine: $300
Fairfield Local Court	12/12/2018	Assault occasioning actual bodily harm (DV) – T2	Dismissed S 10
Fairfield Local Court	12/12/2018	Common assault (DV) – T2	Dismissed S 10
Fairfield Local Court	12/12/2018	Destroy or damage property <=$2000 (DV) – T2	Conditional release order without conviction: 6 months
Bankstown Local Court	02/12/2019	Common assault – T2	Imprisonment: 12 months
Bankstown Local Court	02/12/2019	Assault occasioning actual bodily harm – T2	Imprisonment (Aggregate): 12 months
Bankstown Local Court	02/12/2019	Stalk/intimidate intend fear physical etc harm (domestic) – T2	Taken into account on Form 1
Bankstown Local Court	02/12/2019	Common assault (DV) – T2	Taken into account on Form 1
Bankstown Local Court	02/12/2019	Destroy or damage property (DV)	Imprisonment (Aggregate): 12 months
Bankstown Local Court	02/12/2019	Common assault (DV) – T2	Imprisonment (Aggregate): 12 months
Bankstown Local Court	02/12/2019	Assault occasioning actual bodily harm (DV) – T2	Imprisonment (Aggregate): 12 months
Bankstown Local Court	02/12/2019	Contravene prohibition/restriction in AVO (Domestic)	Community Correction Order: 2 Years
Bankstown Local Court	02/12/2019	Destroy or damage property <=$2000 (DV) – T2	(Call Up – Breach) Conditional Release Order – Conviction: 12 months
Bankstown Local Court	01/09/2020	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment (Aggregate): 12 months
Bankstown Local Court	01/09/2020	Assault occasioning actual bodily harm (DV) – T2	Imprisonment (Aggregate): 18 months
Bankstown Local Court	01/09/2020	Contravene prohibition/restriction in AVO (Domestic)	(Call Up – Breach) Imprisonment (Aggregate): 18 months