GCL v Commissioner of Victims Rights [2024] NSWCATAD 200 | Case summary

NCAT Administrative and Equal Opportunity|2024-02-02

Introduction

The applicant has made claims seeking recognition payments under the victims of crime scheme. The applicant asserts that he is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (the Act).
In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Act in order to receive benefits under the scheme. In the current matter, the applicant has established that he is eligible to receive a victims recognition payment in claims before the Tribunal.
These proceedings concern whether the applicant in each of his claims has established that he was a victim of a violent crime (the statutory term being 'act of violence') in accordance with the Act, and is entitled to a recognition payment.

Background

The applicant has lodged three applications for administrative review with the Tribunal. Initially only one application was lodged because the Commissioner of Victims Rights made a joint decision on the three applications lodged by the applicant. However, prior to the final hearing the applicant attended to the filing of two further reviews to address the second and third claim in the Commissioner's joint decision. Each application concerns an administrative review of how the respondent has dealt with his initial applications and internal reviews for Victims Support. The applicant in these proceedings before the Tribunal is referred to as 'GCL'.

Summary of the claims

Below is a summary of the alleged violent conduct perpetrated against GCL for each of the three claims. 1. Proceedings no. 2023/00424691 (NCAT) 475141 (Victims Services) 1. A sexual assault allegedly perpetrated by a person with the nick name 'Big Fella' at Villawood in the State of New South Wales. 1. Proceedings no. 2024/00152575 (NCAT) 475221 (Victims Services) 1. A sexual assault allegedly perpetrated by a person named 'L.B' (identified) at Villawood in the State of New South Wales. 1. Proceedings no. 2024/00152567 (NCAT) 475228 (Victims Services) 1. A sexual assault allegedly perpetrated by a person with the nick name 'Ratu' at Villawood in the State of New South Wales. All three incidents are alleged to have occurred on 16 November 2017.
Because of the number of claims, I believe that it is appropriate to set out briefly the key elements of the scheme and how the matters have been decided prior to the applications for administrative review.

Legislation

As the Tribunal has previously observed, the Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replaced the former Victims Support and Rehabilitation Act 1996 (repealed) (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an 'act of violence'. The relevant current provisions are set out in the following sections of the Act: 5 Meaning of "victim of crime" (1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence… (2) A person suffers harm if, as a result of such an act - (a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or (b) the person's property is deliberately taken, destroyed or damaged. (3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part. (4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights. …. 19 Meaning of "act of violence" (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons - (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. 2) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because - (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner - (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given. (7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. … 20 Meaning of "primary victim" (1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act. (2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of - (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act.
The Act provides for a number of areas of support for victims of violent crime. These three reviews concern an area of support referred to as a Recognition Payment. Section 34 of the Act defines the term Recognition Payment. 34 Definitions … recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence. …
Prior to accessing a Recognition Payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an 'act of violence'. The section has been amended since the Act commenced. The section currently provides: 39 Documentary evidence (1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form. (2) Without limiting subsection (1), the documentary evidence to be required - (a) for an application for financial assistance for immediate needs under section 26 - is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment - is - (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. … (Emphasis added)
These pathways or preconditions under the Act which lead to a recognition payment are a threshold issue to an applicant accessing the benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.
In the initial three applications, the initial decision maker dismissed the claim that the behaviour amounted to sexual assaults and made a finding that the actions of the three perpetrators satisfied the criteria for an act of violence, but determined under s 19(4) (as set out at [8] above), that those actions constituted a series of related acts comprising one act of violence. The senior assessor on review reached the same conclusion as the initial decision maker. Like these reasons, both earlier decision in the three applications were covered in one set of reasons for decision.
The relevant part of GCL's version of events contained in the decision under review is as follows: On 16 November 2017…. As I approached the room door I noticed a detainee standing near my room's door. This detainee was involved in an incident prior to lunch in the compound so I felt something bad and rushed to open my room door. As I opened the room door he pulled me and pushed me away. At this time 'L.B.' from nowhere came near me and punched my face many times and I fell on the floor. As I feel to the floor 'L.B.' with his shoes heel stepped on to my hand palm and the second time I took my hand away then he kicked on my face but I dodged with my hands and began to yell for help. Then I crawled to reach the main entrance door I saw a detainee with a beard entering thorough the main entrance door, he pulled down my pants and beat on to my buttock and said, 'This c,,, got a sexy ass'. I felt embarrassed and I heard them laughing and felt like a man with no manliness. Then I pulled up my pants and continued to crawl quickly towards the entrance door and that is when he started to kick me which left shoe marks…. He kicked me many times which left shoe mark on me. Yelling for help I managed to get my body half way out of the main entrance door and that's when I saw emergency response team (ERT) staffs running towards me and helped to get me up.
The Tribunal notes that the version of events subsequently before the Tribunal was more detailed and elaborate than that outlined above. However even before the assessor the version of events had expanded from the initial description, where the reference to pulling GCL's pants down and smacking or slapping him on the bare buttock while making suggestive remarks was added two weeks later by way of an amended description.
When the matter was before the Tribunal GCL identified that there were three different claims relating to three different acts of violence. As noted at [6] above in contrast to the matters outlined above at [13], GCL submitted that each claim was identified and distinguished by the involvement of one discrete perpetrator.
In all three claims the senior assessor determined that GCL was the victim of an act of violence on 16 November 2017 at Villawood. The senior assessor then determined: 'After careful consideration of the evidence, I have found that that the violence perpetrated by the three offenders constitute a series of related acts. In making this finding I refer [GCL] to the 'Report a Crime' confirmation email from the Australian Federal Police (AFP) dated 8 February 2018, the letter from the Australian Border Force to [GCL] dated 11 July 2018, records form Internal Health and Medical Services (IHMC) between 9 July 2019 and 28 November 2019 and the letter from [GLC] dated 16 January 2018 regarding a meeting with him and an officer at Villawood detention Centre. These documents all appear to refer to a single incident or assault which was perpetrated against him on 16 November 2017.
The senior assessor goes on to make a statement about the evidence before making their final determination on this 'single or series of related acts' issue: The only evidence that I have before me to the violence by three persons being distinct are records made after (GCL's) applications for victims support, made more than five yeas after the act of violence occurred. On the basis of the available evidence I consider that the three alleged offenders listed in applications 00475141, 00475221 and 00475228 forms a series of related acts.
Having found a single act of violence (by adopting a series of related acts as one act of violence), the senior assessor then proceeds to determine what Category of Recognition Payment to award GCL. As noted from s 35 of the Act, Categories of Recognition Payments are identified by reference to the nature of the assault or the injury or impact of the assault. Section 35 relevantly provides: 35 Categories of recognition payment … (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) a sexual assault other than one referred to in subsection (2) (b), (b) an attempted sexual assault resulting in serious bodily injury, (c) an assault resulting in grievous bodily harm, … (4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) sexual touching or sexual act, (b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b), … (d) an assault (not resulting in grievous bodily harm).
The senior assessor determines that the violence against GCL was not sexual in nature. I am not satisfied that the violence that was perpetrated against [GCL] was sexual in nature. I have considered the available evidence and I note that in the documents that were produced in the months following the act of violence there is no reference to any sexual violence being perpetrated against [GCL]. Again, the first reference to any sexual violence occurred after [GCL] made his first application for Victims support. I acknowledge that [GCL] has indicated that he was embarrassed to report the sexual violence that was perpetrated against him. However, the evidence provided by him does not satisfy me on the balance of probabilities that this sexual violence took place.
As a result of this finding the senior assessor does not approve a Category B payment but approved a Category D payment for an act of violence not causing grievous bodily harm. The senior assessor, having made their finding concerning the lack of any sexual violence, would have applied s 35 (4) (d) to make the payment rather than s 35 (4) (a) or (b) as set out at [18] above. As a result, GCL received a recognition payment of $1,500 by way of victims support.
After receiving the notice of determination for the Internal Reviews on 9 November 2023 GCL filed an application for Administrative Review on 23 November 2023. That matter was clearly lodged within time. As discussed above at [4], GCL subsequently filed two more applications for administrative review (effectively by consent) and time for lodgement has been extended by orders detailed above to receive the two later applications 2024/00152567 and 2024/00152575 procedurally.

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear the administrative reviews lodged. Section 51 of the Act provides for administrative review by the Tribunal. 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (ADR Act), which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The Hearing

The matters were heard over two sittings of the Tribunal. The applicant (GCL) gave lengthy evidence in chief and was subject to cross-examination during those hearings. In order to distinguish the evidence before the Tribunal and the different position that it reached on the evidence contrasted with the earlier findings, it is necessary to detail a significant amount of GCL's sworn evidence before the Tribunal.

GCL's evidence

In his applications for Administrative Review GCL stated the following basis for the review requests: The Assessors finding that all incident [sic] are a series of related acts is an error as the documentary evidence provided from the victims services stating that there are more than one act of violence and to submit an application per offender was not considered as part of the internal review. The category of recognition payment decision was not made on application for victims support [sic] instead on a withdrawn application thus the decision in not approving category B recognition payment sought in error.
GCL prepared a statutory declaration (Exhibit 'A-1') declared on 5 January 2024 where he details his reporting of the incidents and the obtaining of legal advice prior to confirming all aspects of the incidents.
GCL also relied upon a Certificate of Injury form for each claim (Exhibit 'A-2'), whereby GCL is given a diagnosis of Post Traumatic Stress Disorder (PTSD) in addition to intrusive thoughts, nightmares, fear of going out and inability to sleep. The incidents were said to compound the symptoms and condition.
GCL relied upon an extract for the Australian Human Rights Report into his treatment in immigration detention, tendering extracts for paragraphs [135] - [181] and [238] - [248]. (Exhibit 'A-3').
GCL relied on much of the material in the Commissioner's s 58 bundle and provided a written reply on 16 April 2024 between hearing dates.

GCL's evidence at hearing

GCL provide evidence that the first incident involved the perpetrator identified as 'Big Fella', the second incident involved 'L.B.' as the perpetrator and the third incident involved 'Ratu' (who had a beard) as the perpetrator. Whilst only 'L.B.'s true identity is known the operator Serco and the Commissioner do not dispute that GCL was assaulted by the other two individuals.
GCL said that he was involved in 'activities' at Villawood on 16 November 2027 after 1:00pm. He said that he was at lunch and then he went back to the Unit at 2:00pm. There are five buildings in the compound where he was held. He went to Unit 4's main entrance door and he walked towards his room where 'Big Fella' was standing in front of his room. GCL said that Big Fella was standing next to the door.
GCL told the Tribunal that he went through the door and inside his room and Big Fella followed him in. Big Fella pushed GCL who fell towards his bed as a result. GCL then sat on the bed and Big Fella asked him for his phone cards and insulted GCL. Big Fella asked for the mattress to be lifted (looking for phone cards). GCL said he lifted the mattress and then got hit in the head with a book belonging to his roommate.
At this point Big Fella allegedly asked GCL to show him his genitals, saying that if he didn't, he would tell others that GCL was a paedophile and that if he did, he would still blackmail him. GCL told the Tribunal that he 'showed' his penis to Big Fella at which time Big Fella put the roommate's book down and pulled GCL's pants down and held onto his penis with his hands and then 'sucked' GCL's testicles. GCL's evidence was that after that Big Fella put GCL's penis in his mouth. At this moment GCL immediately pushed Big Fella away and ran outside of his room. GCL said that when he did this, he was not wearing underpants in the rush.
GCL said that when he did this he immediately went and sat with his roommate 'K' in the common area where the television (TV) was. GCL said that Big Fella left the Unit Block by the emergency exit. After Big Fella had left GCL said that he spent about 10 minutes in the TV area. After that time, GCL said that he went back to his room as his head was hurting. GCL said that he then went to the toilet and washed his genitals and that they were sore and red. GCL's roommate went out to do activities. At this time GCL said that he checked for officers and that none were visible, and he went back to the TV area. After a further two or three minutes GCL said that he went outside to 'have a smoke'.
GCL said that he then went back inside the room to the kitchenette to wash his face. He said that he was bending down washing his face and then 'L.B.' was behind him and pushing his penis into his backside. 'L.B.' pushed GCL towards the room during which time GCL said that he could not move. GCL said that he 'tried to escape' and run towards the exit door but 'L.B.' came again from behind and punched GCL with a fist (GCL said because he would not have sex with 'L.B.'). GCL said that he then collapsed.
GCL said that he woke up some time later and was unable to stand up, so he crawled to the exit door to go out. It was at this time that 'Ratu' came in the exit door. GCL said that 'Ratu' smiled and stomped on GCL's right palm. GCL said that 'Ratu' pulled GCL's pants down and exposed his buttocks. 'Ratu' then beat GCL's buttocks with his hand two times. GCL said that he tried to pull away and pull his pants up and crawl. GCL said that he was on all fours and had managed to get the top half of his body out of the exit door. It was at that time that two officers from the facility came in. After the incident was over GCL said that he had a smoke and spat out some blood.
On day two GCL was cross-examined on some of the logistical matters concerning reporting and obtaining advice. GCL said that there was a free legal advice service that detainees could access at the facility every Tuesday in the Austin Learning Centre. GCL said that each time he went to this service for advice there would be a different lawyer present. GCL said that the lawyers were provided by the firm HBL Ebsworth.
GCL said that he told the lawyers about three physical assaults and later amended the application to one of the offenders engaging in a sexual manner towards him. GCL said that the lawyer had advised him that incidents of violent nature occurring in immigration detention were considered domestic violence incidents at law.
In respect of his Victims Services applications, GCL said that he did the applications online and that he believed that he would obtain the documents that the Commissioner required under s 39 of the Act (Police and health reports detailing the elements of the act of violence) later.
GCL said that he saw the lawyers every Tuesday and eventually after considering advice removed references to domestic violence and characterised his claims as being based on sexual assault. GCL said that he later received a conformation email from Victims Services saying that his applications had been 'accepted'. Later he received an email advising that for his claim to progress the matter 'needed to be reported in accordance with the requirements of s 39 of the Act' (which was explained in the email).
GCL stated that he was new to the application process and when the Commissioner relies on what was written in the application form (at page 80 of the s 58 documents) GCL noted that the form requires only a 'brief description'. GCL referred to his statutory declaration (Exhibit 'A-1') where he declares that on 17November2017 he reported the incidents to Serco staff as 'rape', 'attempted rape' and 'assault'.
Regarding the reporting and description of the incidents, in his statutory declaration GCL states: I have said of each incident to the NSW Legal Aid and asked for advise [sic] prior to signing the report to police form as it has only one option to report an incident or assault. Due to fear others may know the incidents, I tried not to share with others while in immigration detention. Once released into the community I have said to a friend and lawyers from Homeless Persons Legal Service. After lodging initial application, I became aware that rape and attempted rape incidents are also considered sexual assault and then submitted SARO report as sexual assault. I understand that wilfully providing false information and documents is punishable under the law and its consequences. I say that the facts stated in the Applicants Submissions to the Tribunal, victims support applications lodged with victims services, the documentary evidences [sic] providing the Tribunal is genuine and correct according to my knowledge…
GCL was asked about the Incident Report contained within 'A-1'. That report outlines CCTV footage showing GCL entering Unit 4 and followed by another detainee. On the footage, staff later observed the detainee assault GCL by striking him five or six times with a closed fist to the upper body area and GCL falls to the ground. The detainee then kicks GCL at least once whilst he is on the ground.
GCL said that he did not sign the Police Reporting form given to him by the Serco officer but described the incident to the officer.

Commissioner's submissions

The Commissioner submitted that the matter was initially considered by the Australian Federal Police (AFP) following GCL signing a notification for Police investigation form in November 2017. However, after referral to the AFP the referral was rejected on 26 March 2018 on the basis of being low priority and the availability of resources.
The Commissioner submitted that there had been inconsistent reporting by GCL about the incidents with the initial report to Victims Services being that three men assaulted him as he refused to hand over phone cards. The Commissioner submitted that this version was consistent with the contemporaneous evidence of the matter. Significant reliance was placed by the Commissioner on the specifics and terms of the wording of the initial application to them.
The Commissioner submitted that in email correspondence GCL initially advised that the assaults were related and not separate incidents involving three persons acting independently.
The Commissioner referred to the Sexual Assault Reporting Option (SARO) submitted by GCL to NSW Police on 22 June 2023. Reliance was placed on this report being submitted more than four years after the incident. Further references were made to inconsistencies between what was referred to in the initial application and what was referred to in the SARO. Other inconsistences were referred to in submissions by the Commissioner.

GCL's submissions

GCL submitted that there were valid reasons for the inconsistencies in some of his reports. GCL submitted that he did provide the necessary details to Serco officers at the time of the incidents. He submitted that their incident reports are full of error and illustrated this by reference to the incident report which sets out CCTV footage (at [44] above). GCL submitted that the reference to CCTV in that report is an error and he does not know how that version of events was concocted. GCL relied on his Exhibit 'A-3' which detailed aspects of the Australian Human Rights Commission Report. At [168] of that report the following is set out: 168. … A Facility Operations Manger [sic] witnessed a detainee punch Mr VA (GCL) five or six times with a closed fist to his 'upper body' (which appears to have included his face). Mr VA then collapsed to the ground and was kicked twice by the same detainee. A post-incident report suggested that the incident was captured in CCTV, but the Department later told the Commissioner that this was an error and that there was no CCTV camera in the location where Mr VA was assaulted and that therefore no CCTV footage ever existed.
GCL also submitted that each one of his entries or reports referred to the desire to provide further information and more complete information at a later time. GCL referred to the fact that he was never contacted by the AFP and as a result was not given an opportunity at that time to provide further information as they never followed up his report. GCL maintained that it is entirely open to the Tribunal to apply the most complete and most recent evidence of what transpired, not just what was initially recorded with an ongoing wish to elaborate and qualify matters.
GCL submitted that each incident has enough evidence to show that they were perpetrated by one person. In respect of submissions that one incident had never been referred to earlier as a sexual assault type incident, GCL submitted that was because of what he said in an email to Victims Services on 14 April 2023, being that he was assaulted mainly in the face in that particular incident so he did not identify it as being possibly characterised as a sexual assault.

Consideration

The main contest in these applications appears to concern the position that: (a) different versions of events have been provided by GCL at different times, (b) the recent evidence is far more detailed than much of the initial evidence, and (c) whilst GCL had provided detailed evidence now, which appears to meet all of the requirements of s 39 of the Act, the explanations for holding back on some of the earlier evidence are either illogical or otherwise do not make sense. Arising from all of this is the separate acts / related acts question.
I note that both the initial assessor and the senior assessor on review found that GCL was the victim of an act of violence and neither assessor had any argument with GCL's contention that he was assaulted by three different men.
Dealing with the applications in the manner required by the Act, the first matter to address is s 19 concerning act of violence. This aspect of GCL's claims is the most straightforward. On the earlier evidence both assessors were able to find that the crucial threshold of s 19 had been met. On my assessment the elements of s 19 are met on the earlier evidence but also on the more recent and more detailed evidence given at the hearing. Big Fella assaulted GCL predominantly in his room. 'L.B.' assaulted GCL in the kitchenette area and the common areas of the Mackenzie Centre. 'Ratu' assaulted GCL in the common area and towards the exit of that area.
Section 39 (2) (b) (i) criteria has been met (Police report). This is established from the evidence considered by the Assessor in respect of the report to the AFP in 2018, and the follow up SARO reports on each application also as referred to by the assessor.
There is also a requirement under s 39 (2) (b) (ii) that there be a medical or dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. Those words arise directly from the Statute and the operation of ss 39 (2) (b) (i) and (ii) is conjunctive. (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. (Emphasis added)
As in previous determinations of this Tribunal I take the meaning of the words at the end of s 39 (2) (b) (ii) 'as a result of an act of violence' to mean: as a result of the act of violence upon which the relevant claim being assessed is based.
Whilst I might find that on the available evidence s 19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s - 18: injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.
Reading s 39 (2) (b) (ii) and 19 (1) (c) together, it is clear that the legislature requires that a recognition payment to be only made when there is independent professional evidence indicating that injury has arisen as a direct result of the violence.
On my assessment of the evidence, there is relevant evidence of injury. Initially there is the Liverpool Hospital records which show physical injuries to the face and head. Additional physical injuries to the hand are also noted. Psychological evidence identifies trauma, fear, anxiousness and difficulty sleeping. Other records record: paranoia and fear. Symptoms of vertigo and mental health concerns are also recorded.
There are other medical records referred to in the decisions under review. These records refer to Victims Services approved counselling. It appears that in those records the incidents in November 2017 are somewhat conflated with other stressors relating to GCL's immigration status and the immigration detention process generally.
There are however Certificates of Injury (being a Victims Services proscribed form or document) which victims of violent crime may complete to navigate in part s 19 (1) (c) and s 39 (2) (b) (ii) of the Act.
These certificates of Injury were received as Exhibit 'A2'. For the claim relating to 'Big Fella' the Certificate completed 1 February 2024 records: [GCL] states that he was stunned by the physical attack. Then he became shocked and froze when he was being sexually assaulted. He eventually found the strength to push the offender away and ran out of the room into the lounge. He noted that he felt disgusted, extremely distressed and fearful. He continues to relive this event via thoughts, feelings and memories. He is fearful of going out. Under provisional diagnosis the clinician records: Chronic Post Traumatic Stress Disorder [GCL] continues to experience the symptoms of PTSD even after 6 years. Panic attacks as part of the reliving symptoms of PTSD. He has moral trauma because the offender has not been charged.
For the claim relating to 'L.B.' the Certificate completed 1 February 2024 records: [GCL] states that he was shocked by this event, especially as he had just been sexually and physically attacked. He felt intense distress, excruciating pain and thought he would be raped. This incident compounded the traumatic stress from the previous one that day. He stated that he could not sleep, had nightmares, felt that he would be attacked again so avoided being alone in his room. Under provisional diagnosis the clinician records: Chronic Post Traumatic Stress Disorder [GCL] continues to experience the symptoms of PTSD even after 6 years. Panic attacks as part of the reliving symptoms of PTSD. He has moral trauma because the offender has not been charged.
For the claim relating to 'Ratu' the Certificate completed 1 February 2024 records: [GCL] states that he was shocked by this event, especially as he had just had 2 sexual and physical assault incidents. He felt intense distress, excruciating pain and ashamed at being exposed. The incident compounded the traumatic stress from the 2 previous ones that day. He stated that he could not sleep, had nightmares, felt that he would be attacked again so avoided being alone in his room. Under provisional diagnosis the clinician records: Chronic Post Traumatic Stress Disorder [GCL] continues to experience the symptoms of PTSD, depression even after 6 years. Panic attacks as part of the reliving symptoms of PTSD. He has moral trauma because the offender has not been charged.
I note that these Certificates were all completed on the same date. However, I also note that the Counsellor has had a therapeutic relationship with GCL for some time and has provided a number of prior treatment sessions.
Whilst the Commissioner placed significant weight on matters relating to changes in GCL's evidence about what occurred, and changes in the nature of the medical evidence and diagnosis, for the purposes of considering claims under the Act, I note the prior findings of act of violence. In doing so I note that both of the Commissioner's Delegates made findings that GCL was the victim of three acts of violence, which for the purposes of s 19 (4) of the Act, were grouped as a series of related acts of violence thereby constituting one grouped act of violence to become a single act for the purposes of the provision in the statute.
In order to find an act of violence for each claim (albeit ultimately concluded that they were a series of related acts) the delegate was required to establish that all of the discrete elements of s 19 (1) of the Act were met.
Because of the types of categories of injury that GCL was or is seeking, for the purpose of determining Category, the nature of the trauma or impact of the matters on him are of less significance than the circumstances of the assaults. The central question is whether they should be considered a series of related acts. That is because s 35 of the Act is more focused on the circumstances or nature of what occurred rather than the impacts in the majority of the descriptors.
Section 35 provides: 35 Categories of recognition payment (1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide. (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) a sexual assault other than one referred to in subsection (2) (b), (b) an attempted sexual assault resulting in serious bodily injury, (c) an assault resulting in grievous bodily harm, (d) physical assault of a child that is one of a series of related acts. (4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) sexual touching or sexual act, (b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b), (c) a robbery involving violence, (d) an assault (not resulting in grievous bodily harm).
Only a part of s 35 (2) (b) or s 35 (3) (c) is a reference made to the impact of the act of violence on the victim. All other references are to the nature and circumstances of the act of violence.
Whilst the assessors ultimately confirmed a Category D Recognition Payment, in respect of medical evidence, the only matter established by them was that GCL did not sustain injury equating to grievous bodily harm as a result of the acts of violence. Other than that finding (by choice of category of Recognition Payment), there is no current need nor was there any earlier need to scrutinise the medical evidence any further having established the injury component of s 19 (1) (c) of the Act.
I note that in finding injury, because of the findings that they made, both assessors have determined that GCL sustained injury as a direct result of each (related) act of violence, being injury that was of some significance.
I note that psychological harm is of a low threshold and the guidance on the term 'harm' (under the former Act) comes from a guideline under s 65 of that Act. The reference is that the injury (to constitute harm) must be something more than transient or trifling.
As the Tribunal has previously observed, the case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling". Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.
On my assessment of the medical evidence GCL has suffered psychological harm arising from all three assaults, and there is medical evidence of physical harm from a least two of the assaults and possibly all three. That evidence is more than something that is merely transient or trifling.
I therefore make a finding that the applicant (GCL) is the victim of an act of violence suffering psychological or mental harm / trauma and physical harm / injury as a result of assaults at Villawood in the State of New South Wales on 16 November 2017.
Having regard to the totality of the evidence, and noting the beneficial nature of the scheme as set out in Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA 185 and by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54, I find that the elements of s 39 (2) (b) (ii) are made out on the available evidence. The reports verify that GCL has been injured by the acts of violence and I so find.
On the question of whether the assaults constitute separate acts of violence or a series of related acts, I find as follows.
In my view the first assault involving the perpetrator 'Big Fella' is a discrete matter. The assault effectively occurred in GCL's room. It involved both sexual touching and a sexual assault as well as at least one instance of a physical assault.
I note that in the decision under review the assessor appears to rely in the currency of the records pointing to the matters being separate. The assessor says the following in respect of the acts being related. 26. … I acknowledge [GCL]'s submissions, however his assertions are not supported by the available contemporaneous evidence. 27. In making this finding I refer [GCL] to the 'Report a Crime' confirmation email from the Australian Federal Police (AFP) dated 8 February 2018., the letter from The Australian Border Force to [GCL] dated 11 July 2018. Records from Internal Health and Medical Services (HMS) dated 28 November 2007, the Mental Health Consultation records from HMS between 9 July 2019 and 28 November 2019 and the letter from [GCL] dated 16 January 2018 regarding a meeting with him and an officer at Villawood Detention Centre. These documents appear to refer to a single incident or assault which was perpetrated against him on 16 November 2017. 28. The only evidence that I have before me to the violence by the three persons being distinct are records made after [GCL]'s applications for victims support more than five years after the act of violence. 29. On the basis of the available evidence I consider that the violence perpetrated by the three alleged offenders listed in applications 00475141, 00475221, and 00475258 forms a series of related acts. (Emphasis added)
I have had the benefit of more evidence from GCL on this issue. In his submissions and evidence before the Tribunal (both written and oral) GCL has given logical and cogent responses to the questions raised by the Commissioner and their representative about how he has previously particularised matters. In my view the explanations are valid. GCL is a lay person. He was at the relevant time a person who was being held in immigration detention.
GCL availed himself of free legal assistance and as that resource came to terms with the somewhat complex situation, the nature of both his instructions and the advice received changed. In accepting the general nature of the act of violence (as accepted by the assessors) I note that little of the facts were actually in dispute, other than the descriptors of how and the full context of where the assaults occurred.
Having had the benefit of the better evidence where GCL gave evidence on oath and that evidence was tested by cross examination, I find that the assault by 'Big Fella' is a separate act of violence. The only matters linking that act with the others is that GCL was the victim, and that it occurred at the same address and was perpetrated on the same day by other detainees. In the best available evidence, the reference to the phone cards only arises with 'Big Fella'. As noted, this incident predominantly occurs in GCL's room when the roommate was absent. I note that generalised references to seeking phone cards as recorded elsewhere in the records, but I place little weight on that matter having heard GCL's own evidence.
In making this finding in respect of the category of Recognition Payment I note that the circumstances of the offences would appear to meet the criteria of Category C Recognition Payment as defined at s 35 (3) (a) of the Act. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) a sexual assault other than one referred to in subsection (2) (b), … (Emphasis added)
In respect of the other two incidents involving 'L.B.' and 'Ratu', there is more to potentially link these incidents than the earlier one. Both incidents on the best evidence occur or predominantly occur in the common area in the Mackenzie Unit. After the earlier incident GCL goes and sits with his roommate in the TV area and later goes outside to have a cigarette. He then goes to the toilet and is then washing his face. It is at this time that 'L.B.' comes up behind him and attempts to have sex with him (in GCL's own words) and that 'L.B.' is behind him and pushing his penis into his backside.
Then GCL said that 'L.B.' pushed him towards the room during which time GCL said that he could not move. GCL said that he 'tried to escape' and run towards the exit door but 'L.B.' came again from behind and punched GCL with a fist (GCL said that action was because he would not have sex with 'L.B.'). GCL said that he then collapsed. By the time of the third assault by 'Ratu' GLC appears to be still in the common area as when he woke up (being unable to stand) he 'crawled' to the exit door, so it would appear from his evidence in an attempt to get outside.
This third incident begins with 'Ratu' coming in the exit door and stomping on GCL's right palm. GCL said that 'Ratu' then pulled GCL's pants down and exposed his buttocks. 'Ratu' then beat GCL's buttocks with his hand two times and commented as outlined at [13] above. GCL said that he tried to pull away and pull his pants up and crawl. GCL said that he was on all fours and had managed to get the top half of his body out of the exit door. It was at that time that two officers from the facility came in and the incident ended.
In my view these incidents are related in that they both deal with attempts by the perpetrators to sexually assault or engage in sexual touching or a sexual act in the context of physical assaults. They predominantly occur in the common area (Ratu's assault appears to do so in its entirety). The similarities with the first matter are only that GCL was assaulted earlier that same day.
Having regard to section 19 (4) of the Act it is clear that they were committed against the same person, and in my opinion, they were also related having regard to s 19 (4) (b) (ii) being that: they were, for any other reason, related to each other. This is because of the nature of what actually transpired as outlined at [89] and [90] above. I therefore find that the assaults by 'L.B.' and 'Ratu' are a series of related acts of violence for the purposes of s 19 (4) of the Act.
In making this finding in respect of the category of Recognition Payment I note that the circumstances of the offences would appear to meet the criteria of Category B Recognition Payment as defined at s 35 (2) (b) of the Act. (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (Emphasis added)
I find that the actions of 'L.B.' constitute attempted sexual assault involving violence, and that the action of 'Ratu' comprise sexual touching that involves violence. Collectively because of the earlier finding that I have made at [91] they each constitute an act that is one of a series of related acts for the purposed of s 19 but also s 35 (2) (b) of the Act.
Section 36 of the Act sets out how recognition payments (as described in s 35) are payable: 36 Recognition payments (1) Recognition payments are payable as follows: (a) a category A recognition payment of an amount prescribed by the regulations is payable - (i) to each family victim (other than a child referred to in subparagraph (ii)) who, immediately before the death of a primary victim as a result of an act of violence described in section 35 (1), was financially dependent on the primary victim, and (ii) to each child of a primary victim who, immediately before the death of the primary victim as a result of an act of violence described in section 35 (1), was under the age of 18 years, (b) a category A recognition payment of an amount prescribed by the regulations is payable to the following who were not, immediately before the death of the primary victim concerned, financially dependent on a primary victim who died as a result of an act of violence described in section 35 (1): (i) a parent, step-parent or guardian of the primary victim, (ii) any person who, immediately before the death of the primary victim, was the victim's spouse or de facto partner as referred to in section 22 (3) (b), (c) a category B recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (2), (d) a category C recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (3), (e) a category D recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (4). (2) Only one recognition payment is payable to a single victim in respect of a series of related acts of violence against the victim. (Emphasis added)
Clause 14 of the Victims Rights and Support Regulation 2019 provides the following amounts payable for the various categories of recognition payments: 14 Recognition payments The following are the prescribed amounts of recognition payment for the purposes of section 36 of the Act - (a) for a category A recognition payment referred to in section 36(1)(a) of the Act - $15,000, (b) for a category A recognition payment referred to in section 36(1)(b) of the Act - $7,500, (c) for a category B recognition payment - $10,000, (d) for a category C recognition payment - $5,000, (e) for a category D recognition payment - $1,500. (Emphasis added)
Having regard to the nature of GCL's concerns about his fellow detainees, matters relating to intimidation, coming to harm, and retribution, I accept why the initial AFP report was made in the manner that it was, and that much of the evidence was particularised and clarified after GCL was released from immigration detention. In addition, GCL has given logical and reasoned evidence as to why his case has been presented over the last six or so years in the manner that it has. I do not place any greater weight on the earlier records over the more recent records for those reasons.
I note that the Commissioner's delegates seem to have drawn some adverse inference at GCL's evidence which was only placed in an admissible form after the Victims Support claims were lodged (see [82] above). If such a view is being put, then I do not share that view. I do not believe that there is any statutory basis to rank evidence based on the date it was adduced. All evidence of probative value should, where necessary, be tested and weighed accordingly. That is what I have done with the evidence before the Tribunal. The Commissioner being required to deal with all matters without a hearing does not have the same abilities to test evidence in this manner.
Therefore, having regard to the provisions of s 44 of the Act, I decline to not approve or reduce the giving of support by way of a recognition payment.
On the basis of the above findings above, the correct and preferable decision is to set aside the decisions of the respondent. The applicant (GCL) will be entitled to a Category C Recognition Payment in respect of proceedings 2024/00424691. In addition, a Category B Recognition Payment is administratively awarded against application 2024/00152575. As a result of that finding, claim 2024/00152567 will need to be administratively dismissed, as it and claim 2024/00152575 collectively form an act of violence based on a series of related acts.
As a result, GCL is entitled to a Recognition Payment in the total amount of $15,000 comprising a $10,000.00 Category B Recognition Payment and a $5,000.00 Category C Recognition Payment.
Thus, the total amount of $15,000.00 will be payable to GCL less any amount of $1,500.00 that may have already been paid (if applicable).
There remains one minor matter that was raised in GCL's applications to the Tribunal. GCL submitted that the Tribunal has power to consider and grant his applications for financial assistance.
Financial Assistance like Recognition Payments are a form of Victims Support under the Act. Eligible persons may apply for a range of Victims Support comprising Victims Recognition, Financial Assistance and Approved Counselling under the Act. However pursuant to s 51 of the Act the Tribunal only has power to Administratively Review decisions of the Commissioner concerning Recognition Payments.
Section 51 provides: 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
There is no power under the Act for the Tribunal to conduct an Administrative Review of any decision other than a decision concerning a Recognition Payment. During the hearing whilst GCL was adamant that the Tribunal could deal with that aspect of his application he was unable to point to any legislative authority or basis to confer jurisdiction on the Tribunal.
I therefore reject that aspect of GCL's application for the reasons outlined at [103] - [105] above.

Conclusion

For the reasons outlined above, the decision of the respondent will be set aside in all three claims but in substitution of the decision in proceedings 2024/00152567, the proceedings will be dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 as that matter is captured by the Category B Recognition Payment award.

Orders

The Tribunal makes the following orders: 1. In proceedings 2023/00424691, the decision of the respondent dated 9 November 2023 is set aside. The applicant, GCL, is eligible for a Category C Recognition Payment in accordance with s 35 (3) (a) and s 36 (1) (d) of the Victims Rights and Support Act 2013. 2. In proceedings 2024/00152567: 1. time to lodge the application is extended to 24 April 2024 pursuant to s 41 (1) of the Civil and Administrative Tribunal Act 2013. 2. The application is dismissed pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013. 1. In proceedings 2024/00152575: 1. time to lodge the application is extended to 24 April 2024 pursuant to s 41 (1) of the Civil and Administrative Tribunal Act 2013. 2. The decision of the respondent dated 9 November 2023 is set aside. The applicant, GCL, is eligible for a Category B Recognition Payment in accordance with s 35 (2) (b) and s 36 (1) (c) of the Victims Rights and Support Act 2013.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 06 August 2024 - In regards to reference to section 35 (3) (a) in order 3 (ii) it is amended to 35 (2) (b) pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 (NSW) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2024

GCL v Commissioner of Victims Rights

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Judgment (15 paragraphs)

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Legislation Cited (1)

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