1834254 (Refugee)

[2020] AATA 1930

1834254 (Refugee) [2020] AATA 1930 (13 February 2020)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834254

COUNTRY OF REFERENCE:                   Iran

MEMBER:Antoinette Younes

DATE OF DECISION:  13 February 2020

DATE CORRIGENDUM

SIGNED:19 February 2020

PLACE OF DECISION:  Sydney

AMENDMENTS:  The following corrections are made to the decision:

·The words ‘The standard in that section only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk’ at paragraph 40 should be replaced with ‘The standard in that section requires, amongst other things, that the applicant may or might be a risk and is not confined only to a present risk.’

·The words ‘s.116(1)(e) only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk’ at paragraph 50 should be replaced with ‘s.116(1)(e) requires, amongst other things, that the applicant may or might be a risk and is not confined only to a present risk.’

·The word ‘psychologist’s’ at paragraph 52 should be replaced with ‘psychologist.’

Antoinette Younes

Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834254

COUNTRY OF REFERENCE:                   Iran

MEMBER:Antoinette Younes

DATE:13 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 13 February 2020 at 1:23pm

CATCHWORDS

REFUGEE – cancellation – protection visa – Iran – risk to the health or safety of a segment of the Australian community – sexual assault convictions – risk during custodial sentence – presumption of innocence – double jeopardy – mental health issues – continued fear of return to Iran – impact on family relationships – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 36, 46, 48, 116
Migration Regulations 1994, Schedule 2

CASES

Gong v MIBP [2016] FCCA 561
Ibrahim v MHA [2019] FCAFC 89
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that presence of the applicant in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 27 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s current partner.  The Tribunal hearing was conducted with the assistance of an interpreter in the Farsi (Persian) and English languages.

4. The applicant was granted time to provide post-hearing submissions, the last of which were received on 20 January 2020.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(e).

8. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(e) - risk to Australian community or individual

9. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

   BACKGROUND

10. The applicant arrived in Australia [in] September 2012, having left Iran [in] August 2012.

11. On 2 March 2017, the applicant was granted a Safe Haven Enterprise (Subclass 790) visa) on the basis that he feared returning to Iran as he would be killed by the Basij (an Iranian paramilitary group) and other agents of the Iranian authorities.

12. The delegate’s cancellation decision record, a copy of which the applicant provided to the Tribunal has a summary of the events that led to the cancellation of the applicant’s visa.

13. In the course of the hearing, the Tribunal discussed with the applicant relevant information contained in the delegate’s decision record namely that:

    i)   The Department received information that the applicant had allegedly engaged in non-consensual sexual intercourse and had committed unwanted sexual acts against a woman in the Australian community whom he had met via an online dating website. The information indicates that [in] July 2018, the [Police] arrested and charged the applicant with the offences of “Sexual intercourse without consent… Assault with act of indecency”.  

    ii)     Police information indicates that the alleged offences occurred [in] December 2017 when the applicant met the alleged victim in person after having conversations with her using an online dating website. On [that day in] December 2017 at the alleged victim’s residence, the applicant is alleged to have engaged in intimate physical contact and continued to do so despite the alleged victim’s request to stop. The applicant allegedly stopped his actions when the alleged victim’s housemate entered into the room.  The alleged victim reported the incident to the police and the applicant was subsequently arrested on [in] July 2018.

14. The delegate concluded that the applicant’s alleged conduct indicated that his continued presence in Australia may pose a risk to the safety of a segment of the Australian community, namely women and accordingly the delegate decided that the ground for cancellation existed. Upon consideration of all the relevant discretionary grounds, the delegate decided that the applicant’s visa should be cancelled.

15. The Departmental file contains a [Police] Facts Sheet in relation to the incident of [July] 2018. The Tribunal notes that the delegate’s summary is consistent with the information contained in the Facts Sheet.

    Notice of Intention to consider Cancellation (NOITCC)

16. On 5 October 2018, the Department sent to the applicant a NOITCC setting out the grounds for consideration of cancellation.

17. In submissions of 30 October 2018, the applicant’s representative outlined the grounds for cancellation and the applicant’s denial of those allegations. In essence, the representative argued that:

    ·The allegations against the applicant have not yet been proven and the applicant has not been convicted. The principal of the presumption of innocence is cardinal in our system of justice. The applicant has been granted bail by [Court 1] and in making the order, the Court would have considered that the applicant was not a bail concern. This indicates that the Court’s grant of bail is an implicit finding that the applicant would not endanger the safety of individuals or the community.

    ·In case of a finding that the ground for cancellation exists, on discretionary grounds, the visa should not be cancelled. The applicant travelled to Australia fleeing from Iran and he was found to be owed protection by the Australian authorities. There is no evidence to suggest that the applicant has not complied with visa conditions in the past.

    ·In case of cancellation, there would be a degree of hardship to the applicant and to his family. The applicant has had mental health issues and the risk of detention would result in a re-trigger of the mental health issues from which the applicant suffers. The applicant is at a high risk of suicide.

    ·Despite their physical separation, the applicant has maintained a close personal relationship with his daughter in Iran. There would be a risk in being indefinitely separated from his daughter due to the risk of harm he faces on his return to Iran. He would be unable to visit her in a third country. The impact on the applicant’s daughter would be severe. She has not seen her father for several years due to the applicant’s inability to go to Iran and to sponsor her to come to Australia.  The applicant’s current partner, [Ms A] is an Australian citizen and she would suffer severe hardship.

    ·The applicant could face indefinite detention and his potential removal from Australia would amount to a breach of Australia’s international obligations under the Refugees Convention and other international instruments. It would be in the best interests of the applicant’s daughter for the visa not to be cancelled.

    ·The applicant has made valuable contributions to the Australian community particularly through his employment.

18. In a Statutory Declaration of 29 October 2018, the applicant provided an outline for his reasons in coming to Australia. He referred to the following matters:

    i)   After his arrival in Australia he was detained for a long time and while in detention, his mental health which was largely triggered by his experiences in Iran deteriorated. He continues to struggle with mental health issues and the separation from his family has been a major factor. He has no close family in Australia.

    ii)     When he left Iran in 2012, his daughter was just over [age] years old. For a long time he had trouble talking to her because he was in detention and minimised contact with his family to avoid them being harmed by the authorities in Iran due to their association with him. In the last year and a half, he has been in more regular contact with his wife and daughter in Iran. He has found ways to contact them which are more difficult for the Iranian government to monitor, for example through the encrypted messaging application [named]. He has been able to contact his daughter about once a week and they have established their relationship. He had hoped to see his daughter in July 2018 and had applied to travel to [a third country] to see her there. He applied for a visa to [that country] and bought plane tickets.

    iii)   Subsequent to his arrest, he did not call his daughter as he could not access [the messaging service] in prison. He also thought it would be harmful for her to have to answer telephone calls from prison. He called his daughter subsequent to his release and his daughter is upset with him. She is disappointed that she could not see him in [the third country] as had been planned. He knows that the separation has caused her considerable stress and he fears that further prolonged separation could have a long-lasting harmful impact on his daughter. Despite the physical separation, he has been able to build a relationship with his daughter through regular telephone contact.

    iv)   He has been in a relationship with an Australian citizen, [Ms A] for approximately three years and they have lived together since around August 2016. The relationship has not always been smooth but she has been a great support to him and she has helped him manage. His family is aware that he is in a relationship with [Ms A]. Although he is married, the family understands the support and help that [Ms A] has provided to him. It is an unusual situation which has arisen largely out of the “unusual and difficult circumstances I have faced”.  [Ms A] has been particularly supportive facilitating communication with his family in Iran after he was arrested. Through the support of [Ms A], his housemates and employer, he believes he can settle, integrate and contribute to the Australian community.

19. In support of the response to the NOITCC, the applicant provided bail documents, Certificate of Acknowledgement from the [Correctional Centre 1], Certificate of Attendance at [a welfare] Program, letters of support from [two friends], and [his employer].  He also provided a report of [October] 2018 from [Psychologist A] who referred to the applicant’s diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD).

    Material provided to the Tribunal prior to the hearing

20. The representative provided the following documents:

    a.   In submissions dated 26 November 2019, the representative indicated that:

    ·[In] October 2019, the applicant was convicted of the charges of sexual intercourse without consent and two counts of assault and act of indecency, and was sentenced to an aggregate term of imprisonment of 4 years, 3 months to commence [in] July 2019 and expire [in] October 2023 with a non-parole period of two years, 10 months - being eligible for parole [in] May 2022. [In] November 2019, the applicant lodged a Notice of Intention to Appeal in relation to the conviction and the sentence.

    ·The applicant continues to deny the allegations made against him although he does accept that he has been convicted of serious offences and consequently it is open to the Tribunal to find that the convictions support a conclusion that the ground for cancellation under s.116(1)(e) arises.

    ·The likelihood of the applicant reoffending is low as there is no pattern of offending and the convictions relate to one episode of events within a very narrow timeframe rather than a history or pattern of offending. The sentence of imprisonment also provides a powerful deterrent.

    ·Regardless of the intentions of cancellation, the applicant’s experience of having his visa cancelled and the prospect of being detained or refouled provide additional deterrence to reoffending that would not apply to others convicted of similar offences. The absence of a pattern of offending and the existence of a powerful deterrent decrease the risk of the applicant reoffending.  The risk is far lower than his convictions or sentence would suggest at first glance.

    ·The applicant is a refugee and he came to Australia seeking protection. He has been able to start a new life in Australia finding work to support him and new friendships. Had he arrived in Australia a month earlier, he would have been eligible to apply for and might have held a permanent protection visa. 

    ·The applicant has complied with visa conditions and bail conditions.

    ·The applicant would suffer significant personal and economic hardships due to the cancellation, including adverse impact on his mental health, and on his Australian citizen partner [Ms A] with whom he has been in a relationship since August 2015. The applicant has always demonstrated good behaviour towards the Department.  There are adverse legal consequences including becoming unlawful, being involuntarily removed from Australia, and being barred under s.46A and s.48A from making further applications for any visas. Iran is currently not accepting people removed involuntarily and the applicant has no intention of returning to Iran and consequently he could be subject to indefinite detention.

    ·Australia’s international obligations would be breached in case of cancellation. In the decision in Burton (Migration) [2018] AATA 4220 [113], the Tribunal set aside the cancellation decision where the potential consequences were less serious than the current situation. The cases affirmed in the AAT are “often for multiple serious convictions that are accompanied by history of criminal activity and convictions”. The applicant has no prior criminal history.

    b.   [Court 2] Advice of Court Result dated [in] November 2019 indicates that [in] October 2019, the Court sentenced the applicant to an aggregate term of imprisonment of 4 years, 3 months to commence [in] July 2019 and expire [in] October 2023 with a non-parole period of 2 years, 10 months. The applicant is first eligible for parole [in] May 2022 and no sentence discount is recorded.

    c.   Notice of Intention to Appeal or Notice of Intention to Apply for Leave to Appeal filed [in] November 2019, in relation to conviction and sentence.

    d.   Report dated [in] October 2018 from [Psychologist A], psychologist (previously provided to the Department).

    e.   Statutory Declarations of 2 October 2013 and 22 January 2016 outlining the applicant’s claims for protection. Essentially, the applicant’s claims relate to his and his father’s membership of the Basij, including both of them becoming commanders. The applicant claimed that due to expressing dissatisfaction with certain activities of the Iranian regime, he and his family were threatened. He claimed to fear that if he were forced to return to Iran, he would be killed.

    f.      Report of [Psychologist A], psychologist dated [in] October 2018 referring to the applicant’s clinical condition and that due to the applicant psychological and other history, “indefinite detention is likely to cause a relapse to his Major Depressive Disorder and Post-Traumatic Stress Disorder, and place him in a high risk of suicide”.

    g.   Report of [Psychologist A], psychologist dated [in] November 2019 concerning the applicant’s mental health.  [Psychologist A] reiterated his earlier diagnoses but noted that the applicant’s “condition had significantly deteriorated since last year, with increasing suicidal ideations (thoughts).  He was also developing psychosis, including delusions and hallucinations…”.

    HEARING

21. The applicant gave evidence via video link from [Correctional Centre 2].  He was tearful at times particularly when giving evidence about his daughter.  The Tribunal has given regard to the applicant’s mental health as outlined by [Psychologist A].  The applicant was represented by a migration agent who is also a legal practitioner.  The Tribunal is satisfied that the applicant has had a meaningful and proper opportunity to participate in the hearing and put his case in full before the Tribunal.

22. The applicant told the Tribunal that he came to Australia [in] September 2012, on Christmas Island as he feared harm in Iran.  He explained that he was a commander in the Basij and was reluctant to be involved in the 2009 demonstrations in Tehran.  He said he came to Australia leaving his wife and daughter in Iran.  The Tribunal asked him if he is still married and he stated that customary religious rules meant that the marriage is automatically nullified in case of separation.  He stated that he is aware that his wife had approached the Iranian Courts to formalise the divorce but he does not know the outcome.

23. In relation to his current relationship, the applicant stated that he has been in a relationship with [Ms A] for over three years. 

24. The Tribunal asked and the applicant confirmed that in relation to the charges, he entered a plea of not guilty.  He maintains his innocence.  The Tribunal explained to the applicant that the Tribunal has to accept that he has been convicted and it is not the role of the Tribunal to question the conviction.  The Tribunal referred to the Notice of Intention to Appeal or Notice of Intention to Apply for Leave to Appeal filed [in] November 2019 and indicated that it is a matter for the Court to determine the Appeal and even if the Tribunal were to make a favourable decision, it would not have a direct impact on the sentence imposed.

1. [Ms A] gave evidence that she and the applicant have lived together as a couple for three years.  She understood the convictions but stated that the applicant would not engage in such conduct.  She said they planned a life together and that last year she had a miscarriage.  She stated that she has [an age] year old son who lives with his dad, her former husband from whom she has been divorced for over three years.  She stated that her son knows the applicant well and continues to ask about him but she has not told him of the applicant’s current circumstances.  [Ms A] spoke highly of the applicant’s character and of her unconditional support to him.

2. In oral submissions, the representative reiterated earlier submissions and expressed the opinion that although the cancellation process is not intended to be punitive, an unfavourable outcome is punitive and could amount to double-jeopardy.  He argued that an unfavourable outcome in this case is disproportionate as the applicant has already been punished through the conviction and sentencing.  The representative indicated that there is no history of offending so the risk is minimised, as well as the fact that the sentencing acts as a deterrent.  The representative expressed the view that the delegate’s assessment of the discretionary factors was not “genuine” and no proper weight was given to significant matters such as the applicant’s fragile mental health.

3. The Tribunal discussed the documents provided in support and advised that it would consider weight. 

4. The Tribunal expressed concerns about the brevity of [Psychologist A’s] reports and the representative advised that [Psychologist A] is providing pro bono assistance. 

5. The representative requested and was granted two weeks, that is until 11 December 2019 to provide clinical reports in relation to [Ms A]. 

   Material received post-hearing

6. On the due date of the reports for which an extension was granted, the representative wrote to the Tribunal and provided a copy of [Psychologist A’s] report of [September] 2014 relating to the applicant and requested a further extension of time.  The representative also provided a copy of report of [Psychologist A] dated [in] October 2019.  The Tribunal observes that this report was provided for the purpose of the criminal proceedings. The report sets out [Psychologist A’s] skills and experience, his assessments of the applicant and diagnoses, including PTSD, Melancholic Depression, paranoia, sleep disturbances, nightmares and night terrors, and heart palpitations.  [Psychologist A] expressed his opinion that the applicant is a suicide risk.

7. The Tribunal granted a further extension of time and the following documents were received:

   i)   Briefing letter dated 19 December 2019 from the representative to [Psychologist A].

   ii)     Report of [Psychologist A] dated [in] January 2020 relating to [Ms A]. [Psychologist A] noted that he has been seeing [Ms A] since [October] 2018 when she was referred to him by her general practitioner for opinion and management of depression and associated symptomatology. [Psychologist A] outlined his experience and expertise and summarised [Ms A’s] history and diagnoses including Major Depressive Disorder, with anxious distress, severe (mood–congruent psychotic features, moderate…)[1]. [Psychologist A] observed that a significant cause of [Ms A’s] psychopathology is the applicant’s incarceration and that she and the applicant have increasingly become emotionally dependent on one another and planned to have children. [Psychologist A] quoted [Ms A] saying “if he can’t be there, then I don’t want to be here” which prompted [Psychologist A] to identify suicidal ideations and warranted a suicide intervention plan and management.  [Psychologist A] concluded his report by expressing his belief that continued immigration detention for the applicant and the cancellation of his visa would have significantly adverse impacts on [Ms A’s] mental health which is likely to worsen her symptoms and risks.

   iii)   Submissions of the representative dated 20 January 2020. In essence, the representative accepted that on the basis of the convictions, it is open to the Tribunal to find that the applicant may pose a risk to the Australian community, namely women, however he argued that risk is minimal. The representative referred to the fact that the applicant is currently serving a custodial sentence which expires [in] October 2023 and his eligibility for parole [in] May 2022. The representative submitted that while the applicant is in criminal detention, he cannot reasonably be said to be a risk to the Australian community or specifically to women in Australia so the risk would need to be assessed at the time of his release from custody. Assessment of the level of future risk would need to take into account a number of factors including a lack of pattern of offending and the deterrent impact of the sentence. When the applicant’s visa was cancelled, he had not been convicted or sentenced and consequently at the time of the cancellation of his visa, the sentence and its deterrent impact were not available to, or considered by Minister at the time. The applicant would only be a minor risk if any beyond the date of his release from custody. The applicant is supported by [Ms A] which means that the applicant would have crucial support in the community on his release from custody which would lessen the risk of reoffending. In exercising its discretion, the Tribunal must weigh the risk that the applicant may pose to women in the Australian community against a number of serious consequences for the applicant and his partner, including being returned to Iran. The applicant could face indefinite immigration detention which would be highly detrimental to the applicant’s mental health and prognosis. [Ms A] is an Australian citizen with a son the consequences of her mental health deteriorating in the manner identified by [Psychologist A] would no doubt have serious effects on her but her family as well. If removed to Iran, the applicant fears that he would be killed. He was granted the visa on the basis that Australia owed him protection obligations and the situation in Iran has not changed in a material way that would mean that the applicant would not face similar harm on his return to Iran.

   [1] At page 3 of the report.

   FINDINGS AND REASONS

8. [In] October 2019, the applicant was convicted of the charges of sexual intercourse without consent and two counts of assault and act of indecency, and was sentenced to an aggregate term of imprisonment of 4 years, 3 months to commence [in] July 2019 and expire [in] October 2023 with a non-parole period of two years, 10 months - being eligible for parole [in] May 2022. The Tribunal accepts that [in] November 2019, the applicant lodged a Notice of Intention to Appeal in relation to the conviction and the sentence. The convictions relate to incidents that occurred when the applicant engaged in non-consensual sexual intercourse and committed unwanted sexual acts against a woman in the Australian community whom he had met via an online dating website. The applicant was charged [in] July 2018, with the offences of “Sexual intercourse without consent… Assault with act of indecency” relating to an incident that occurred [in] December 2017 when the applicant met the female victim in person after having conversations with her using an online dating website. [In] December 2017 at the alleged victim’s residence, the applicant engaged in intimate physical contact and continued to do so despite the victim’s request to stop. He stopped his actions when the victim’s housemate entered into the room.  The applicant was subsequently arrested [in] July 2018. 

9. As explained in the course of the hearing, the Tribunal accepts that the applicant has been convicted of those charges and that he has been sentenced. 

10. The Tribunal has noted the applicant’s plea of not guilty and his denial of the allegations made against him although he does accept that he has been convicted of serious offences. The Court’s finding is that the applicant had committed the offences with which he was charged. This finding occurred subsequent to a criminal trial. It is not open to this Tribunal to go beyond the findings of the sentencing Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and the sentence imposed as a result of a conviction are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:

    [45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

    [46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.

11. It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. It is established law that the Tribunal must accept those findings as evidence of guilt. Accordingly, the Tribunal finds that the applicant has been convicted of offences which the Tribunal considers to be serious. It has been conceded that it is open to the Tribunal to find that the convictions support a conclusion that the ground for cancellation under s.116(1)(e) arises.

12. There have been submissions concerning risk. The submissions focussed on matters such as the fact that the applicant is currently serving a custodial sentence which expires [in] October 2023 and his eligibility for parole [in] May 2022. The Tribunal appreciates that while the applicant is in criminal detention, it is reasonable to suggest that there is little or no direct risk to the Australian community. The representative’s contentions that the risk would need to be assessed at the time of the applicant’s release from custody are somewhat inconsistent with the provisions of s.116(1)(e) where there does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past[2].  The Tribunal acknowledges that there is a degree of consideration of potential future conduct in the assessment of risk, but it is difficult to see and to be persuaded by such an argument.  Moreover, there could many intervening variables by the time the applicant is released from custody. The Tribunal is of the view that past conduct is a significant factor in the assessment of risk. 

    [2] Gong v MIBP [2016] FCCA 561, at [41].

13. The representative submitted that when the applicant’s visa was cancelled, he had not been convicted or sentenced and that consequently at the time of the cancellation of his visa, the sentence and its deterrent impact were not available to, or considered by the Minister.  The Tribunal does not consider those submissions to be persuasive; the applicant’s visa was cancelled on the basis of the charges indicating that the delegate considered the charges to present a risk.  The fact that the applicant has now been convicted is strong evidence that strengthens the delegate’s assessments. 

14. In relation to the submissions that the applicant is supported by [Ms A] which would lessen the risk of re-offending, the Tribunal observes that the offences occurred at a time when the applicant was in a relationship with [Ms A].  So the relationship, although is of a supportive nature, does not overcome the Tribunal’s concerns about the risk. On the evidence, the Tribunal is satisfied that the applicant’s relationship with [Ms A] is genuine but that the relationship with, and the support of [Ms A], did not deter the applicant from approaching another female and committing serious offences of a sexual nature.  The Tribunal is not satisfied that the relationship with [Ms A] would lessen the risk of re-offending.  It is also relevant that the applicant was granted the subclass 790 visa on 2 March 2017 which means that the offences occurred about 4 months after the grant.  Being afforded the privilege of the grant of a protection visa did not deter the applicant from committing significant offences.

15. The Tribunal gives regard to the submissions that the risk of reoffending is minimised as there is no history or pattern of offending, the sentence imposed provides a deterrent, the visa cancellation and its consequences act as deterrents.  The evidence is that the applicant did commit serious offences, indicating a capacity of a particular conduct relevant to the assessment of risk. 

16. On balance, the Tribunal is satisfied that the seriousness of the offences, the convictions, and the significant sentence imposed support a finding that the applicant may be a risk to the community or individuals such as women, as contemplated by s.116(1)(e). The standard in that section only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk.

17. On the evidence, the Tribunal is satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community, and consequently the ground under s.116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    ·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

19. The applicant came to Australia as an unauthorised maritime arrival seeking Australia’s protection. The applicant’s claims for protection were assessed and a delegate decided that the applicant engaged Australia’s protection obligations.  On 2 March 2017, he was granted a Safe Haven Enterprise subclass 790 visa based on those findings.  This is a temporary visa, due to expire on 2 March 2022.  The applicant maintains that he continues to fear harm at the hands of the Iranian authorities and that he continues to seek Australia’s protection.

20. The Tribunal accepts that the applicant was granted the visa on a determination that he engaged Australia’s protection obligations.  The Tribunal gives regard to the applicant’s claimed continued fear of returning to Iran and that there is a compelling need for him to remain in Australia. Currently, the applicant is serving a term of imprisonment in Australia as a consequence of the convictions.

21. The Tribunal is satisfied that the applicant’s travel and stay in Australia are consistent with the objectives of the visa which he was granted.  The Tribunal also gives weight in the applicant’s favour in relation to the plans to have children with his current partner, [Ms A], which is also a compelling reason.

22. The Tribunal gives this consideration weight in the applicant’s favour.

    ·the extent of compliance with visa conditions

23. There is no evidence before the Tribunal of non-compliance with visa conditions on the part of the applicant.

24. The Tribunal gives this aspect weight in favour of the applicant.

    ·degree of hardship that may be caused (financial, psychological, emotional or other hardship)

25. In submissions, the representative expressed the opinion that although the cancellation process is not intended to be punitive, an unfavourable outcome is punitive and could amount to double-jeopardy.  He argued that an unfavourable outcome in this case is disproportionate as the applicant has already been punished through the conviction and sentencing. 

26. The Tribunal does not wish to take those comments out of their context and the Tribunal acknowledges the representative’s concession that although the cancellation process is not intended to be punitive, there is a punitive or an unfavourable outcome.  The contention that cancellation could amount to double-jeopardy is a moot point and academic opinions might differ.  In the Tribunal’s view, the implicit analogy between cancellation and the doctrine of double-jeopardy is not well-founded; the purpose of cancellation is not punitive but essentially aimed at the protection of the Australia community.  Cancellation has broader implications beyond the personal interests of an applicant.  The doctrine of double-jeopardy is related to a specific criminal procedure, arguably unrelated to administrative law.  The Tribunal in a case such as this can consider any relevant material.  In the Tribunal’s opinion, taking into account the convictions in assessing cancellation and its consequences does not amount to double-jeopardy.  The legislation sets out the parameters; s.116(1)(e) only requires that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk. To elevate the legal test and bring into the cancellation decision-making doctrines such as the doctrine of double-jeopardy is not persuasive. Cancellation is intended by the legislature if there are grounds such as those under s.116(1)(e). The Tribunal does not give weight to those submissions in the applicant’s favour.

27. The applicant came to Australia.  His wife and daughter remained in Iran.  The Tribunal accepts the evidence that over the years, he maintained contact with his family and that he feels particularly saddened and concerned about the fact that he has not seen his daughter for many years.  In relation to that marriage, the applicant gave evidence that customary religious rules mean that the marriage is automatically nullified in case of separation.  He told the Tribunal that he is aware that his wife had approached the Iranian Courts to formalise the divorce but he does not know the outcome. 

28. The applicant has provided multiple reports from [Psychologist A], a psychologist’s who in a report [in] November 2019 provided a history of the applicant including psychological treatment since 2014. [Psychologist A] indicated that since 2014 to the date of the report, he has seen the applicant for over 40 sessions. [Psychologist A] referred to the applicant’s history of “heightened paranoia, severe sleep disturbances including nightmares and night terrors for years, heart palpitations in the absence of physical exertion, excessive crying for several hours per day (including for a significant portion of our sessions), heightened feelings of guilt for feelings of abandoning his wife and child. These symptoms resurface upon the relapse of his condition which is often caused by a significant live stressor. [The applicant’s] condition had significantly deteriorated since last year, with increasing suicidal ideations (thoughts). He was also developing psychosis, including delusions and hallucinations, in addition to the above-mentioned symptoms which had increased in intensity… He meets the diagnostic criteria for Melancholic Depression, comorbid with Post-Traumatic Stress Disorder…[3]”

    [3] Report [in] November 2019.

29. [Psychologist A] provided an opinion that indefinite detention beyond the period of incarceration would very likely be detrimental to the applicant’s psychological health and prognosis with a significant increase in the risk of suicide. The Tribunal is concerned about an opinion that appears to be speculative in nature in that given that the period of incarceration is substantial (the applicant was sentenced to an aggregate term of imprisonment of 4 years, 3 months to commence on [in] July 2019 and expire [in] October 2023 with a non-parole period of two years, 10 months - being eligible for parole [in] May 2022), it is difficult to see how the psychologist is able to predict the likelihood of the applicant’s psychological health and well-being subsequent to serving the sentence. The Tribunal acknowledges that [Psychologist A] is qualified to provide the opinions that he has provided, however, the Tribunal finds it challenging to accept uncritically some of the comments made by [Psychologist A].

1. On the evidence, the Tribunal accepts that the applicant is vulnerable psychologically and that he suffers from conditions that could worsen with indefinite detention. The Tribunal is particularly concerned about the applicant having suicidal ideations but as noted in the material provided to the Tribunal, namely the [Court 2] Advice of Court Result[4], the Court ordered that the psychological report of [Psychologist A] of [October] 2019 be sent to Corrective Services to assist in the applicant’s treatment whilst in custody. The Tribunal is satisfied that it is reasonable to suggest that while in custody, the applicant’s mental and psychological well-being are given consideration. As to what could occur once released from prison, as there could be multiple variables, it is inappropriate for the Tribunal to predict or speculate about what could or would happen upon release. Currently the applicant is serving a substantial prison term and the Tribunal accepts that he suffers from mental health conditions that make him a vulnerable person. The Tribunal has empathy for the applicant and appreciates that he is in a position where he does not want to be. The Tribunal gives significant weight to the applicant’s mental health in his favour.

   [4] Folio 81 of AAT file.

2. The applicant has been in a relationship with [Ms A] since 2015 and the Tribunal accepts that this relationship is genuine and that [Ms A] is highly supportive of the applicant.  [Psychologist A] provided opinions about [Ms A’s] mental health.   The Tribunal accepts [Psychologist A’s] assessments and diagnoses of [Ms A], including suicidal ideations, Major Depressive Disorder, with anxious distress, severe (mood–congruent psychotic features, moderate…)[5].  The Tribunal accepts [Psychologist A’s] observations that a significant cause of [Ms A’s] psychopathology is the applicant’s incarceration and that she and the applicant have increasingly become emotionally dependent on one another and planned to have children. The Tribunal acknowledges the hardship in case of cancellation to [Ms A], who despite the convictions, expressed an opinion that the applicant would not engage in such a criminal conduct.  The Tribunal gives regard to the couple’s stated plans of a life together as a family and to have children.  The Tribunal acknowledges [Ms A’s] sadness about the miscarriage. The Tribunal has given those aspects weight in the applicant’s favour.

   [5] At page 3 of the report.

3. The Tribunal appreciates that cancellation of the applicant’s visa can result in personal and economic hardships, including not being able to work in Australia.  Naturally the applicant does not want his visa to be cancelled and in case of cancellation, he would personally be impacted.  The Tribunal has given those aspects weight in the applicant’s favour.

4. There are adverse legal consequences including becoming unlawful, being involuntarily removed from Australia, and being barred under s.46A and s.48A from making further applications for any visas. Although those are intended legislative consequences, they do present particular hardship to the applicant given his psychological vulnerability and the position that Iran does not normally accept returnees who have been removed.  However, it would be open to the applicant to request Ministerial Intervention seeking a lift of the relevant bars.  The Tribunal recognises that the Minister’s powers are non-reviewable and non-compellable but that is a potential option.  By saying so, the Tribunal is not underestimating the potential consequences outlined here but the Tribunal recognises that there could be other potential avenues.

5. The Tribunal gives the consideration of hardship weight in favour of the applicant.

   ·circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

6. When the applicant’s visa was cancelled, the applicant was facing charges which gave rise to the ground for cancellation under s.116(1)(e)(i). The applicant has now been convicted of the offences which the Tribunal considers to be serious and significant involving a victim. Although the applicant has claimed that he recognises the seriousness of the convictions, he has continued to assert his innocence, as arguably he is entitled to do. The Tribunal notes that there is a pending appeal and it is not for the Tribunal to make any comments in this regard. As explained earlier, it is not open to the Tribunal to criticise or make comments about the conviction. The Tribunal respects and gives significant weight to the fact that the applicant has been convicted by an Australian Court.

7. The Tribunal considers sexual assault to be a violent and serious offence impacting on another person.  The seriousness is reflected in the custodial sentence.  The Tribunal is of the view that it is reasonable to suggest that there has been a significant adverse impact on the victim whom the applicant had met via an online dating website.

8. The Tribunal is satisfied that the applicant’s conduct was not beyond his control.

9. The Tribunal gives this consideration significant weight in favour cancellation.

   ·past and present behaviour of the visa holder towards the department;

10. The applicant has been cooperative with the Department and responded to the NOITCC. 

11. The Tribunal gives this aspect weight in the applicant’s favour.

    ·whether there would be consequential cancellations under s.140;

12. There is no evidence of any consequential cancellation.

13. The Tribunal gives this aspect neutral weight.

    ·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention;

14. The Tribunal has dealt with this issue under the consideration of hardship.  There are adverse legal consequences including becoming unlawful, indefinite detention, being involuntarily removed from Australia, and being barred under s.46A and s.48A from making further applications for any visas.  As mentioned, it would be open to the applicant to request Ministerial Intervention seeking a lift of the relevant bars.  The Tribunal is of the view that any such request would be dealt with in accordance with established guidelines.

15. Those consequences are intended legislative consequences to give power to detention and removal from Australia.

16. The Tribunal gives this aspect neutral weight.

    ·whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

17. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).  “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

18. Article 33 of the Refugees Convention is relevant in this instance.  Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    • there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in or
    • the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community.

19. The Tribunal has considered whether the applicant’s circumstances may engage ‘non-refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s.36 of the Act.  The applicant has been found to be owed Australia’s protection obligations and he was granted a temporary visa on that basis.  He remains to be a person in respect of whom Australia has protection obligations.  In this regard and given that Australia is a signatory to the Refugees Convention, the Tribunal is satisfied that there are non-refoulement obligations.  However, those obligations need to be considered in the context that the visa which the applicant held is a temporary visa, which would have expired on 2 March 2022, had it not been cancelled. 

20. The representative submitted that had the applicant arrived in Australia a month earlier, he would have been eligible to apply for and might have held a permanent protection visa.  This submission does not assist the applicant’s case in terms of cancellation; he was granted a subclass 790 visa which is a temporary visa as the law applied in his case.  He held a temporary visa with an expiry date of 2 March 2022 when and if relevant he might have applied for another visa where any protection claims would have been determined in accordance with the law, including the application and relevance of any current independent country information.  The Tribunal is of the view that the grant of a temporary visa was intended by the legislature to be a scheme to enable Australia to fulfil its international obligations and those under the Migration Act, and provide temporary protections to those who met the criteria.  The Tribunal gives weight in favour of cancellation to the fact that this is a temporary visa that has an expiry date and legally, there is no basis for a personal expectation of permanency for the holder of this visa.  Nevertheless, the Tribunal gives weight in favour of the applicant on the basis that he has been assessed and found to be owed Australia’s protection and consequently there are non-refoulement obligations.  This however needs to be considered in the current context - the applicant is serving a custodial sentence which expires [in] October 2023 and parole eligibility [in] May 2022.  Unless a different outcome results from the pending criminal appeal, he will not be deported from Australia until at least after May 2022, assuming a successful parole outcome.

    Convention on the Rights of the Child (CROC)

21. As a signatory to the Convention on the Rights of the Child (CROC), Australia has an obligation concerning children in Australia.  The CROC applies to children under 18 years of age.  By being a signatory, Australia has agreed to act in a manner consistent with the Convention, recognising the best interest of the chid.

22. The CROC sets out the rights of children in 54 Articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival, to develop to the fullest, to protection from harmful influences, protection against abuse and exploitation, to participate fully in family, cultural and social life. The four core principles of the Convention are non-discrimination, devotion to the best interests of the child, the right to life, survival and development, and respect for the views of the child. The CROC sets out standards in relation to health care, education, legal and civil rights.

23. Article 3 of the CROC states:

    In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

    States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

    States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

24. [Ms A] gave evidence that she has [an age] year old son who lives with his father, her former husband from whom she has been divorced for over three years.  She stated that her son knows the applicant well and continues to ask about him but she has not told him of the applicant’s current circumstances.  The applicant has a daughter who lives in Iran with her mother.  Although she is not in Australia, the Tribunal considers it appropriate to consider her needs.  It is reasonable to assume that it is in the best interests of children to be with their parents, however that assumption must be considered in the context and nature of the relationship that the applicant has with his own daughter.  He has not seen her in many years as he has been in Australia.  He was planning to see her but he has been in custody.  The Tribunal recognises the importance of the applicant seeing his daughter and the fact that he has not is due to a number of factors, including the visa cancellation but this does not mean that Australia has been or would be in breach of its obligations under the CROC.  The daughter has never been in Australia and she has been separated for many years.  Under these circumstances, the Tribunal gives this aspect neutral weight.

25. [Ms A] has [an age] year old son who lives with his father.  [Psychologist A] reported that [Ms A] advised that the applicant has become a “father figure to her son”[6].  The Tribunal accepts that the son has a relationship with the applicant but in consideration of the evidence as whole, the Tribunal is not satisfied that there is a strong parental connection or any other kind of a relationship between the applicant and [Ms A’s] son to weigh heavily against cancellation.  The Tribunal does not wish to sound harsh or unkind, however, the Tribunal has serious doubts about the applicant’s capacity to be a role model for the child given the convictions and the Tribunal is not satisfied that it is in the child’s best interests that the visa is not cancelled. In these circumstances, the Tribunal is not satisfied that Australia would be in breach of the CROC in case of the cancellation.

    ·Other matters

    [6] Report of [Psychologist A] dated [in] January 2022 at pg3.

26. The representative referred to the decision in Burton (Migration) [2018] AATA 4220 [113], where the Tribunal set aside the cancellation decision where the potential consequences were less serious than the current situation. The cases affirmed in the AAT are “often for multiple serious convictions that are accompanied by history of criminal activity and convictions”.  The Tribunal respects other decisions of colleagues in the Tribunal.  The Tribunal acknowledges the importance of consistent decision-making, however each case is decided on its own merits as often each case is unique with its own set of circumstances.  The applicant has been convicted of serious offences involving a victim.  The applicant provided documents such as Certificate of Acknowledgement from the [Correctional Centre 1], Certificate of Attendance at [a welfare] Program, letters of support from [two friends], and [his employer].  The Tribunal has given some weight in favour of the applicant to that material as the documents demonstrate community ties and contribution to the Australian community, albeit limited.

27. The Tribunal has carefully considered the material before it individually and cumulatively.  The Tribunal acknowledges that there are aspects in the applicant’s favour, such as hardship to both the applicant and [Ms A], and protection obligations.  On balance, the Tribunal is however satisfied that the evidence weighs heavily in favour of cancellation.

28. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. On the evidence, the Tribunal is satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community, and consequently the ground under s.116(1)(e)(i) exists. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that on balance, the visa should be cancelled.

    DECISION

29. The Tribunal affirms the decision to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

    Antoinette Younes

    
    Senior Member