1916932 (Refugee)

[2021] AATA 838

1916932 (Refugee) [2021] AATA 838 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1916932

COUNTRY OF REFERENCE:                   Iran

MEMBER:Antoinette Younes

DATE:3 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

Statement made on 3 March 2021 at 5:21 pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – risk to the safety of the Australian community – applicant charged and convicted of robbery – character test – suffering domestic violence – victim of sexual abuse – victim in a pending civil matter – compelling need to remain in Australia – non-refoulement obligations – positive rehabilitation prospects – United Nations Convention on the Rights of the Child – hardship on the applicant’s family – decision under review set aside

LEGISLATION
Crimes Act 1900 (NSW), ss 97, 349
Migration Act 1958, ss 46, 48, 116, 501

CASES
DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184
Gong v MIBP [2016] FCCA 561
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Wan v MIMA (2001) 107 FCR 133

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 25 June 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa – ‘SHEV’) 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 the applicant has been charged and convicted of offences. 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 17 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from three witnesses, including the applicant’s mother.

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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. Relevantly, to this case, these include the ground set out in s.116(1)(e). 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

7. 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].

8. During the hearing, the Tribunal discussed with the applicant information contained in the delegate’s decision record, a copy of which the applicant provided to the Tribunal in support of the application for review.  Relevantly, the delegate’s decision record indicates that information from NSW Police refers to charges and a conviction as follows:

   ·In December 2018, while armed with [an implement], the applicant allegedly robbed a male (Person X) of his wallet [at Location 1]. As a result, the applicant was charged by police with the offence of Robbery armed with an offensive weapon, subsection 97(1) Crimes Act (NSW) 1900 (the Crimes Act).

   ·[In] January 2019, it is alleged that the applicant attempted to rob a male (Person Y) of [a possession] in [Location 2]. The applicant was charged by police with the offence of Robbery in company, subsection 97(1) Crimes Act.

   ·The applicant has been convicted of accessory after the fact Robbery armed/in company, subsection 349(2) Crimes Act. The applicant was convicted of this offence [in] March 2019 in relation to an armed robbery [in] July 2017. During the robbery, the applicant held a firearm to the neck of the victim and demanded his phone.

   NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOITCC) & RESPONSE

9. On 23 May 2019, the Department sent to the applicant a NOITCC on the basis of the above charges and conviction which meant that s.116(1)(e)(i) is enlivened. On 13 June 2019, the applicant responded to the NOITCC as follows:

   ·The applicant has one criminal conviction and he has not been convicted for either of the two alleged offences. He has not had the opportunity to defend himself in relation to these alleged offences. The criminal justice system provides an important safeguard to ensure that accused are deemed innocent until found guilty. Using the two alleged offences against the applicant prior to trial runs counter to the presumption of innocence. A far more just and equitable approach would be to stay any decision under s.116 until the conclusion of the trial and it is not the role of the executive to determine guilt.

   ·There are non-refoulement obligations – the applicant has been found to be owed protection obligations and he cannot be returned to Iran.

   ·If the visa is cancelled, the applicant faces indefinite detention in an Australian detention centre and he may be removed despite any non-refoulement obligations.

   ·As a child and teenager, the applicant has experienced severe domestic violence perpetrated against his mother and himself by his father.  The abuse was detailed in the protection claims.  The applicant arrived in Australia as a child and as an unauthorised maritime arrival. He and his family were immediately detained. He did not choose to come to Australia in an irregular manner as that was his mother’s decision. 

   ·The applicant was sexually abused by a Government-contracted carer while in the custody and control of the Department. This has obviously contributed to his levels of trauma and poor self-perception.

   ·The applicant has been detained in Australia since his arrived and he has had limited opportunity to establish a normal life. He is [age] years old and has the chance to lead a normal life. Cancelling his visa would continue the cycle of abuse and detention. His education has been severely disrupted due to administrative detention. He was completing year [level] subjects while studying in [an immigration detention centre]. The applicant has been told that he had not completed year [level]. In the community, there were problems obtaining identification documents, meaning he could not easily enrol. When the applicant was arrested, he had just enrolled in TAFE.

   ·The applicant has a supportive family, partner and network. His support network is committed to assisting him to make sensible decisions regarding education, relationships and positive life choices.  His partner is employed at [a location], has a [named qualification] and is an Australian citizen.

   ·When the applicant is not detained, he has accessed counselling on a regular basis, demonstrating a commitment to improving his mental health and addressing the trauma of his past.

10. The representative relied on earlier submissions of March 2017 and documents, provided in support of the consideration to refuse the Safe Haven Enterprise Visa (SHEV) application under s.501(1) of the Act due to concerns that the applicant may not pass the character test under the Act, based on his criminal history.  The representative provided documents in support such as Transcript, District Court of NSW, Criminal Jurisdiction, Judge [name], [file number], [date], letter of support from [Ms A] dated 26/02/2017, letter of support from [Mr B] dated 8/03/2017, letter of support from [Ms C] dated 27/03/20 17, letter of support from [Dr D], Anger Management Course completion record dated [in 2016], letter from the applicant dated 26/03/2017, AFP Event / Case for the applicant, Letters of support from the applicant’s brother and sister, Teaching and Learning Report dated [in] February 2017, letters from [Agency 1] dated 20 February 2014 and 3 March 2014, Serco letter of [October] 2016 confirming attendance at 5X1 hour of Anger Management sessions, Letter of support from [a named] Church dated 27 March 2017 relating to the family’s involvement in Church activities, letter of support from the applicant’s mother, letter of [a named sport] Trial dated 5 February 2014 confirming evaluation success, letter of support from [Mr B] dated 18 March 2017, Strength Based Cycle strategies and plans, Juvenile Justice Centre Meeting – explanations relating to past offences, letter of support from Juvenile Justice Officer, letter of support from the applicant’s partner, and Report of [Dr E] dated 6 March 2019 .

11. To the Tribunal, the representative provided submissions and documents (some of which were provided to the Department) including, undated letter of support from [Ms A], undated letter of support from [Mr B], NSW Police Event record dated [in] July 2016 referring to an alleged sexual assault [in] May 2016 perpetrated on the applicant, letter of support with attachments including photographs of self-harm from [Dr D], Statement of Claim dated [in] October 2020 filed by the applicant against the Commonwealth and others relating to the alleged sexual assault incident, letter to the Department from [a psychologist] dated 30 August 2017 referring to the diagnoses of PTSD and Panic Disorder, letter to the Department dated 30 August 2017 referring to letter of [the psychologist], photograph of applicant playing [sport], letter of Serco dated [in] October 2016 referring to the applicant’s attendance at an Anger Management Course, [Agency 1] letter dated 3 March 2014, submissions and attachments relating to s.501, video of the applicant playing [sport], photos of self-harm, [detention centre] teaching and learning progress report, and [an agency’s] clinical records.

12. In the course of the hearing, the applicant gave evidence that he has been convicted of the above offences and that he is currently serving a five-year term of imprisonment with a non-parole period of 2 ½ years.  Subsequent to the hearing and as requested, the Tribunal received sentencing information confirming that the applicant has been sentenced to an aggregate term of 5 years commencing [in] May 2019 with a non-parole period of 2 ½ expiring on [date]. 

13. The Tribunal indicated to the applicant that it considered the sentence to be serious with which the applicant agreed.  The Tribunal indicated to the applicant that there appears to be an escalation in his offending conduct, suggesting that there remains to be a risk. 

14. The applicant gave evidence that he accepts his wrongdoing and he expressed his remorse.  He gave evidence that he is now [age] years of age and that he came to Australia in October 1999, with his mother and younger siblings.  He stated that his father who is in Iran subjected the family, including the applicant’s mother to abuse and physical violence.  They came to Australia seeking protection and remained in detention for a few years.  He stated that he was young and easily influenced.  The applicant emphasised that he is not making excuses for his conduct and he understands the seriousness of his behaviour and its impact on the victims.

15. The Tribunal is satisfied on the evidence that the applicant’s criminal conduct has escalated over the years resulting in a serious sentence, reflecting the Court’s determination. The Tribunal acknowledges that the applicant has done courses, including self-development courses, however, given the escalation of his conduct, the Tribunal finds that the ground for cancellation under s.116(1)(e) exists. The Tribunal is satisfied on the evidence that the presence of the applicant in Australia is or may be, or would or might be, a risk to the safety of the Australian community.

16. As the ground under s.116(1)(e) does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

17. 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

18. The applicant arrived in Australia in 2010 as an irregular maritime arrival (IMA) with his mother and siblings.  They came to Australia seeking protection essentially on the basis of abuse and violent behaviour perpetrated by the applicant’s father on members of the family.  On 7 April 2017, the applicant was granted the SHEV which could provide a pathway and assuming he would meet the criteria, to a substantive visa.  The applicant is in Australia with his mother and two siblings

19. The Tribunal is satisfied that the applicant’s travel to Australia is consistent with that purpose.

20. In relation to remaining in Australia, the applicant has a pending civil matter relating to allegations of abuse including sexual assault perpetrated on the applicant.  The applicant provided to the Tribunal a copy of the Statement of Claim relating to that application.  The Tribunal appreciates that those allegations have not been finalised by the Courts but the Tribunal is of the view that it is fundamental that the applicant has the opportunity to see through that civil matter as allegations of sexual abuse are serious and could have adverse consequences including mental health and psychological issues.

21. The Tribunal is satisfied that the applicant’s circumstances mean that there is a compelling need for the applicant to remain in Australia.

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

    ·the extent of compliance with visa conditions

23. There is no evidence of non-compliance with any visa conditions.

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

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

25. The applicant has been granted a SHEV based on findings relating to protection claims.  He gave evidence that he no longer has a partner and that he is close to his mother and siblings.  Both the applicant and his mother spoke of regular contact.  His mother gave evidence of the hardship that the family would face if the applicant were to be returned to Iran where he could face harm at his father’s hands.  The fact that he has a pending civil matter means that there would be hardship in him not being able to pursue that matter.  The applicant has spent his formative teenage years in Australia.

26. In submissions, it was noted that the applicant started to play [sport] in Australia when he was approximately [age] years old. The evidence indicates that he is a good athlete with potential. In 2013, he played with a [sport] club in [a named suburb] and the team invited him to tour overseas with them, but he was unable to travel due to his visa situation.  In 2014, the applicant started playing with [a different sport club] team and he was spotted by talent scouts from [an international club] and various American universities. The American universities were interested in providing him with scholarships to attend university in America, provided successful completion of year 11.  The applicant is intending to complete years 11 and 12.

27. Of particular relevance are [Dr E’s] comments:[1]

    [The applicant] presents as a young man of relatively good cognitive skills despite the difficulties in his life. He has had an extremely difficult life, much more averse than the average person in the justice system. He was exposed to significant violence by his father, including watching his father almost kill his mother. He was exposed to the trials and tribulations that come from being a maritime arrival in Australia and placed in detention, although when he was in detention with his family, he does not appear to have regarded that as a particularly aversive circumstance.

    …

    [The applicant] has had difficulties in his adjustment, which is to be expected given his background and further impacted by the services set up to support him, for instance, [Welfare Agency 1] as well as immigration officers. He has received support through [Agency 2] and he appears to be utilising that support.

    Clearly, [the applicant] is a young person who is undergoing a process of maturation. He reports about having developed some skills in reflection on his life and perceiving his life as a lesson that he can learn from. It appears that he has gained some distance from his former drug using criminal peers and he has deliberately put that distance between himself and them. The concern of course is that in gaol, it would be more difficult to place distance between such nefarious characters.

    [The applicant] is a person who currently appears to be emerging from a period of what would be regarded as adolescent onset criminal behaviour associated with his traumatic past with a psychological cause for his difficult behaviours. He reports a number of strengths and supports, which appear to suggest that a positive rehabilitation outcome is possible in this case. It would be to his advantage if he could resume his positive trajectory in the community, re-engage with [Agency 2], develop and complete his skills, his learning at TAFE and being placed in connection with an employment mentoring program so that he could start to develop prosocial routines and earn money in a legitimate way. Although he has a significant history of drug use over the last four years that no longer appears to be a major concern, although it would be wise for him to continue with [Agency 2], so that it could monitor and assist him in developing any relapse prevention skills should that need arise.

    [1] In report of 6 March 19.

28. The Tribunal accepts that the applicant has had challenges which have had an impact on him psychologically, socially and in other contexts.  Cancelling his visa in those circumstances would be harsh and would result in significant hardship to the applicant and to his supportive family.

29. The Tribunal gives significant weight to this consideration in the applicant’s favour.

    ·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

30. The circumstances in which the cancellation arose as a result of the applicant being charged and convicted of several offences.  The applicant is now serving a sentence. 

31. As outlined above, the Tribunal takes the view that the offences are serious, and the custodial sentence imposed reflects that seriousness.

32. The applicant has expressed his remorse and has acknowledged his wrongdoing.  In response to the Tribunal’s questions, [Dr D] confirmed that in her opinion, the applicant’s remorse is genuine.  She gave evidence that the applicant is shameful of his conduct and takes responsibility for his conduct.

1. The Tribunal also observes that in relation to the s.501(1) process, the applicant expressed his remorse but within a few months, he was arrested for his involvement in the robbery of July 2017.  Although there are potential explanations for the applicant’s conduct, the Tribunal is satisfied that the applicant’s behaviour was not beyond his control. 

2. The Tribunal gives this consideration weight in favour of cancellation.

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

3. The applicant responded to the matters raised in the NOITCC.

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

   ·whether there would be consequential cancellations under s.140

5. There is no evidence of consequential cancellation under s.140.

6. The Tribunal gives this consideration neutral weight.

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

7. The cancellation of the applicant’s visa could result in the applicant’s detention and potential removal from Australia.  The applicant would also be impacted by s.46A and s.48A of the Act which means that he could face difficulties in applying for any further visas in Australia and in being granted an Australian visa, unless the Minister intervenes.  He will also be subject to Public Interest Criterion (PIC) 4013.

8. Although the Tribunal considers potential detention, removal from Australia, the impacts of ss.46A and 48A and PIC 4013 bar to be intended legislative consequences, in the applicant’s case particularly because he has been granted the SHEV based on protection claims, those consequences are significant. 

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

   ·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

10. The applicant has been granted the SHEV on the basis that he is a person to whom Australia has protection obligations.  The Tribunal considers protection obligations to be serious and in line with Australia’s international commitments.

11. The applicant has a sister who is a minor, she is [age] years old (date of birth [specified]).  While the applicant does not have any direct care obligations towards his sister, the Tribunal is satisfied that she is impacted by the cancellation of the applicant’s visa. 

12. Australia is a signatory to several international instruments.  By being a signatory, Australia has a commitment.  The United Nations Convention on the Rights of the Child done at New York on 20 November 1989 (CROC) is relevant.

13. Regarding the CROC, the Tribunal observes that Art. 3(1) provides:

    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.

14. The applicant’s sister is a minor and her interests must be considered in the context of the CROC.  There is substantial judicial guidance on this issue and recently in DXQ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1184, the Court reaffirmed the proposition that the best interest of the child must be given primary consideration. In Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 C.L.R. 273, although the Court noted that the CROC does not have the force of law for Australian domestic purposes, by being a signatory to the CROC, there is an expectation that a decision maker would act in accordance with the provisions of the CROC. That is, in any action concerning children, primary consideration of their interests must be given.

15. The applicant provided to the Tribunal evidence relating to his close relationship with his sister.  Both the applicant and the sister are members of the family unit, headed by their mother.  She is a minor who is attached to her brother and although there is no evidence that she is dependent on him financially, it is reasonable to suggest that the cancellation of his visa would result in emotional hardship and as such it is in her best interest for the applicant’s visa not be cancelled. 

16. On the evidence the Tribunal is satisfied that in case of cancellation, there would be breach of Australia’s international obligations.

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

    ·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

18. The SHEV is not a permanent visa.

19. The Tribunal gives this aspect neutral weight.

    ·any other relevant matters

20. There are no other matters requiring consideration.

    Concluding remarks

21. The Tribunal has carefully considered the material before it independently and cumulatively.  The Tribunal takes the opportunity to express its concerns about the conduct of the applicant which has impacted on victims.  However, the cancellation scheme is not intended to be punitive and the Tribunal must consider relevant aspects, the balance of which in this case weigh in the applicant’s favour.  The applicant acknowledges his wrongdoing and is taking steps to address personal issues to prevent the occurrence of any further criminal conduct.

22. There are aspects in favour of cancellation but on balance, the Tribunal is satisfied that the international obligations, the hardship that the applicant and the family would face, and other matters as discussed above weigh in the applicant’s favour.

23. The Tribunal has decided that there was non-compliance by the applicant in the way described in the NOITCC. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa.

    Antoinette Younes

    
    Senior Member