1923490 (Refugee)
[2023] AATA 4751
•20 December 2023
1923490 (Refugee) [2023] AATA 4751 (20 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Noeline Dilhara Balasanthiran Harendran (MARN: 1680817)
CASE NUMBER: 1923490
COUNTRY OF REFERENCE: Sri Lanka
MEMBER:Antoinette Younes
DATE:20 December 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
Statement made on 20 December 2023 at 2:43pm
CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – risk to safety of individual – criminal offences, charges and convictions – continued claim of innocence, and intention to appeal to High Court – discretion to cancel visa – unauthorised maritime arrival and protection claims – financial hardship and physical and mental health – mandatory legal consequences and international obligations – no real prospect of removal in reasonably foreseeable future – lengthy term of imprisonment – circumstances could give rise to cancellation on character grounds – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 45AA, 116(e)(ii), 189(1), 196(1), 424A
Migration Regulations 1994 (Cth), r 2.08F
Administrative Appeals Tribunal Act 1975 (Cth), s 2ACASES
Al-Kateb v Godwin (2004) 219 CLR 562
Gong v MIBP [2016] FCCA 561
NZYQ v MICMA [2023] HCATrans 154Any 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 29 July 2019 made by a delegate of the Minister to cancel the applicant’s Subclass 785 (Temporary Protection) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(e)(ii) of the Act on the basis that the applicant has been charged with a number of offences under Queensland laws.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Since January 2021 and on multiple occasions, this matter has been listed for hearings. The applicant requested adjournments essentially on the basis of the criminal matter not being finalised, including an appeal. In those circumstances, the Tribunal considered it fair to postpone the hearings. The applicant has now been convicted. The Criminal Court of Appeal has upheld the convictions.
The applicant appeared before the Tribunal 30 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse in Sri Lanka. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
PROTECTION CLAIMS
By way of background, the applicant was born in [Town], Batticaloa District, Eastern Province, Sri Lanka. He was married [in] 2004. He has [Children] who are living with their mother in Sri Lanka. The applicant left Sri Lanka in May 2012 and arrived in Australia [in] June 2012, as an unauthorised maritime arrival (UMA). He applied for a protection visa, Subclass 866. The delegate accepted that the applicant has a well-founded fear of being persecuted for reasons of his race, imputed political opinion (being perceived to be a supporter of the Liberation Tigers of Tamil Eelam (LTTE)), and membership of a particular social group of Tamils from the north or east of Sri Lanka.[1] The delegate recommended that, subject to other criteria being met, a protection visa be granted.
[1] Delegate’s decision record, dated 31 January 2012.
However, on 5 February 2014, a delegate determined that the applicant did not meet cl 866.222, and the Subclass 866 visa was refused. The Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 amended Schedule 2 by inserting a new time of decision criterion, namely cl 866.222 which was introduced in December 2013. It stated that asylum seekers would not be eligible for a permanent Protection (Class XA Subclass 866) visa if they arrived in Australia by boat without a visa, or arrived in Australia by plane but were not immigration cleared at the airport, or did not have a valid visa when they last arrived in Australia.
On 27 March 2014, the Migration Amendment (Unauthorised Maritime Arrival) Regulation2013 was disallowed by the Senate. As the applicant did not have a valid visa when he entered Australia by boat, he was a UMA within the meaning of s 5AA of the Act. On review, the then Refugee Review Tribunal (RRT) determined that due to the fact that in March 2014, the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 was disallowed by the Senate, the applicant met cl 866.221(2).
Further legislative amendments[2] meant that the application for a protection visa was not valid and that the application was for a Temporary Protection (Class XD) Subclass 785 visa, which was granted to the applicant on 6 January 2017, and it is the cancellation of that visa which is the subject of the review.
[2] Section 45AA of the Migration Act and regulation 2.08F.
VISA CANCELLATION
Under s 116 of the Act, the Minister may cancel a visa if 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?
Section 116(1)(e) – risk to the Australian community or individual
Section 116 provides:
Power to cancel
116(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
…
(ii) the health or safety of an individual or individuals.
Therefore, a visa may be cancelled under s 116(1)(e)(ii) 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 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].
Information in the delegate’s decision record, a copy of which the applicant provided to the Tribunal, indicates that the Department received information that the applicant was charged in May 2019 with the below offences pursuant to the Criminal Code 1899 (Qld) (‘CC’) and the Domestic and Family Violence Protection Act 2012 (Qld) (‘DFVPA’). The delegate’s decision record indicates that the charges relate to allegations concerning the applicant’s stepdaughter.
The charges are as follows :
·CC 352(1)(a) sexual assaults (diverse dates between 1/01/2018 and 24/12/2018). It is alleged that the applicant sexually assaulted the victim on numerous occasions between 1 January 2018 and 24 December 2018.
·CC 222(1) incest (diverse dates between 01/03/2018 and 24/12/2018). It is alleged that the applicant touched the victim inappropriately against her requests on numerous occasions, several times a week throughout 2018.
·CC 349(1) rape (between 01/03/2018 and 12/03/2018). It is alleged that the applicant raped the victim between 1 March 2018 and 12 March 2018.
·CC 218(1)(a) precure sexual acts by coercion (between 01/04/2018 and 31/07/2018). It is alleged that the applicant told the victim he had recorded the rape and threatened to release the video if she did not participate in further sexual acts.
·CC 349(1) rape (between 01/04/2018 and 30/04/2018). It is alleged the applicant raped the victim once a week during April 2018.
·CC 349(1) rape (diverse dates between 01/04/2018 and 31/07/2018). It is alleged the applicant raped the victim on numerous occasions between 1 April 2018 and 31 July 2018.
·CC 350(1) attempted rape (between 01/08/2018 and 24/12/2018). It is alleged that the applicant attempted to rape the victim at his home in August 2018, however, the victim was able to run away.
·CC 335 common assault (on 07/04/2019). It is alleged that the applicant slapped the victim three times on the face on 7 April 2019.
NOTICE OF INTENTION TO CONSIDER CANCELLATION (NOICC) AND RESPONSE
The Tribunal has before it a range of material, including [Departmental files] containing the visa application, visa cancellation documents, and the applicant’s identity documents, being a copy of his passport, national identity card and marriage certificate.
In support of the application for review, the applicant provided documents, including a copy of the delegate’s decision record, documents to support his request for fee reduction, and pre‑hearing written submissions from the applicant’s representative.
On 20 June 2019, the Department sent to the applicant a NOICC, to which he responded on 28 June 2019. The NOICC referred to the charges as listed in the above paragraph numbered 16.
In his response, the applicant asked for a chance to sort things out and for the visa not to be cancelled as he is on remand stating that the allegations are false and are motivated by revenge by the victim and her mother. He claimed that he has had no contact with his lawyer so he has been unable to give his side of the story and that he would like time to sort out his property, worth $60,000, which remains at his house in the community.
Subsequent events
Pursuant to summonses issued by the Tribunal on the Commissioner of the Queensland Police Service, the Tribunal obtained information that [in] 2021, the applicant was found guilty of Rape x 3 (under ss 349(1) and 564(3A) of the CC), Common Assault – Domestic Violence x 2 (under ss 335 and 564(3A) of the CC), and Assault With Intent To Commit Rape – Domestic Violence (under ss 351 and 564(3A) of the CC).
In September 2021, the applicant’s representative advised the Tribunal that the applicant is appealing the convictions and that evidence has come to light that was not available at the time of the trial.
Section 424A invitation
On 15 June 2021, the Tribunal wrote to the applicant pursuant to s 424A of the Act inviting him to comment on or respond to certain information which it considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were the applicant’s charges and convictions in Queensland as outlined in Queensland Police Service documents provided to the Tribunal under Summons on 11 June 2021. A copy of the documents was attached to the s 424A invitation.
The s 424A invitation stated that this information is relevant to the review because it could suggest that the applicant’s presence 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. The s 424A invitation further stated that if the Tribunal relies on this information in making a decision, it may affirm the decision under review to cancel the XD 785 visa.
The applicant was invited to provide comments or a response in writing by 29 June 2021. The s 424A invitation was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant. The applicant did not provide a response to the s 424A invitation within the prescribed period and he did not request an extension of time.
Notwithstanding, the Tribunal considered it appropriate in the circumstances to invite the applicant to give evidence and present arguments at a hearing.
At the Tribunal hearing on 27 July 2021, the applicant stated he did not receive the s 424A invitation that was sent to him by email on 15 June 2021 and he explained that he does not have email access at [Correctional Centre].
Following the Tribunal hearing, on 27 July 2021, the Tribunal wrote to the applicant again pursuant to s 424A of the Act inviting him to comment on or respond to certain information which it considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. The particulars of the information were the applicant’s charges and convictions in Queensland as outlined in Queensland Police Service documents provided to the Tribunal under Summons on 11 June 2021 and 2 July 2021. The s 424A invitation was sent to the applicant by email at the email address provided in the application for review on 27 July 2021.
The applicant responded to the s 424A invitation through his representative on 8 August 2021. The following documents were provided as part of the response:
·Email correspondence from the representative dated 8 August 2021 advising that the applicant has appealed his convictions on the basis of fresh evidence. She also advised that the applicant had applied for bail.
·Stamped Form 38 Application for Leave to Adduce Evidence dated 21 July 2021, filed in the Court of Appeal, Supreme Court of Queensland on an unknown date.
·Affidavit of the applicant setting out his version of events, sworn on 19 July 2021, and pre-hearing written submissions dated 3 September 2021.
In the written submissions of 3 September 2021, it was noted that the applicant was a child soldier in the LTTE and that he denies the allegations made against him. It was noted that the applicant was in the process of lodging an appeal relating to his convictions on the basis of fresh evidence which was obtained following the conclusion of the criminal proceedings.
Affidavit of the applicant, dated 19 July 2012
In the affidavit, the applicant reiterated his protection claims and indicated that:
A.When he was [age] years of age, an army officer put a gun to his head. The army officer then detained his cousins who were 14 to 15 years old and murdered them in front of the whole village.
B.He was recruited as a child soldier in the LTTE when he was [age] years old. He was taken to a training camp, where he was ill-treated. The training was brutal and he was forced to witness and videotape murders and go into battle alongside other LTTE soldiers. He could not try to escape because he had heard what had happened to others who tried to escape.
C.After a month at the training camp, he was told by ‘this guy’ that his father had been shot dead by the army because they became aware that he had joined the LTTE and they wanted his father to surrender him to them.
D.In or around April 2009, he joined a group of civilians and went to the army. He then escaped the army camp before he was identified as a former LTTE solider and went to [City], where he obtained documentation to go to [Country]. He stayed in [Country] for one year and returned to Sri Lanka due to health issues. His brother-in-law helped him get smuggled through the Sri Lankan airport. He was identified by army officers after about 21 days, so he fled Sri Lanka and got in a boat to seek asylum in Australia.
E.He has not been able to reunite with his wife and child since leaving Sri Lanka. He only lived with his wife for about six months and his child less than four months in total before fleeing Sri Lanka. As a result, he was very lonely and he has never had the opportunity to be in love or have love in his life.
F.The claimed victim (Ms X) reached out to him on [Social media] and he subsequently became emotionally attached to her. They were in a consensual sexual relationship and he denies that he raped her. He was only involved with her mother because he was afraid that she would kick him out of the house if he refused, and he wanted to stay in order to continue his relationship with Ms X.
G.He has been accepted as a refugee in Australia. He never left Sri Lanka to remarry and his wife has never been unfaithful to him.
HEARINGS
The previous Member who had conduct of the matter first listed the matter for an in‑person hearing on 8 January 2021. On 21 December 2020, the applicant wrote to the Tribunal requesting postponement of the hearing on the basis that he needs to obtain legal assistance and that his criminal proceedings have been listed for trial commencing on 26 April 2021. The applicant requested that the Tribunal postpone the hearing until such time as his criminal proceedings are concluded. The hearing was postponed at the applicant’s request.
On 27 April 2021, the Tribunal wrote to the applicant requesting an update on the progress of his criminal proceedings. That correspondence had not been returned from the applicant. The Tribunal received no response. On 7 May 2021, the applicant returned a telephone call from a Tribunal Officer. During this telephone call, the applicant advised that his trial was still ongoing and that it is expected to be finalised by 12 May 2021. The applicant was requested to contact the Tribunal at the conclusion of the trial to notify the Tribunal of the outcome and of any changes to his contact details.
On 14 May 2021, the Tribunal wrote to the applicant by email requesting an update on the progress of his criminal trial. That correspondence had not been returned from the applicant. The Tribunal received no response by way of return email.
On 11 June 2021, a Tribunal Officer attempted to telephone the applicant on his mobile number and received an automated message from [telecommunications company] advising that the mobile number has been disconnected.
On 7 July 2021, the Tribunal received advice from the Department that the applicant’s criminal trial had concluded and that the applicant is currently incarcerated at [Correctional Centre].
The matter was re-listed for hearing on 20 July 2021. This hearing was cancelled and rescheduled to 27 July 2021 due to logistical issues in arranging for the applicant to be transported to the Tribunal’s premises from [Correctional Centre].
The Tribunal conducted an in-person hearing on 27 August 2021. The applicant attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. At the outset of the hearing the Tribunal advised the applicant that it was conducting a review of a decision of the Department to cancel his protection visa under s 116 of the Act. The Tribunal noted that a delegate of the Department had formed a view that the applicant’s presence 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. As a result of this, the applicant was served with a NOICC of his protection visa and given an opportunity to comment on those grounds. The applicant confirmed that he has been convicted and he sought an adjournment on the grounds that he was not ready, he had a pending bail application, and that he has lodged an appeal. Although the Tribunal granted the adjournment, the previous Member expressed concerns about the delays in this matter.
On 12 April 2023, the applicant appeared before the Tribunal via telephone. His representative requested an adjournment on the basis that the appeal has not been determined but ought to be finalised by the end of August 2023. The Tribunal considered it appropriate to adjourn the hearing and not finalise the matter until after the conclusion of the appeal. The Tribunal directed the representative to advise the Tribunal by 31 August 2023 of the progress/outcome of the appeal. This direction was not complied with as the Tribunal did not hear anything.
On 5 September 2013, the Tribunal wrote to the applicant advising him of its intention to list the matter for hearing in early October. The Tribunal requested the applicant to advise the Tribunal by 8 September 2023 of any concerns. On 12 September 2023, the representative advised the Tribunal that ‘verdict for his criminal matter is sue (sic) today. we shall keep the Tribunal updated’.
On 20 September 2023, the Tribunal wrote to the applicant inviting him to a hearing via MS Teams on 12 October 2023. The applicant was requested to respond to the hearing invitation and provide any further evidence in support by 5 October 2023. No response was received by that date. However, at approximately 14.40 pm (AEDT) on 11 October 2023, a day before the hearing, the representative wrote to the Tribunal requesting an in-person hearing, due to the applicant being ‘too distressed, due to the appeal in the CCA being refused’. On the same day, the Tribunal wrote to the representative advising that to request a hearing in person at this stage ‘means that even if so inclined, the Tribunal would not be able to make the necessary arrangements with the relevant authorities. The applicant is also in Queensland [Member in Sydney] so there are significant issues with an in-person hearing. Moreover, there is no supporting clinical evidence for this request ... It is also the Tribunal’s obligation to ensure procedural fairness and if the Tribunal perceives any concerns, the Tribunal will deal with those matters during the hearing’. The Tribunal therefore declined the request.
On 12 October 2023, the Tribunal received confirmation from the representative that an MS Teams hearing is ‘fine, considering the Tribunal is sitting in NSW let’s proceed with a video link’. The hearing on 12 October 2023 could not proceed due to technical issues. The matter was relisted for hearing on 30 November 2023.
On the material before it, the Tribunal is satisfied that an in-person hearing was not necessary in this case and that the applicant had a proper opportunity to put his case in full before the Tribunal. This matter has had significant delays and hearings have been adjourned on multiple occasions, essentially due to the applicant’s requests on the basis of pending legal proceedings. On multiple occasions, the Tribunal had to pursue the applicant and his representative for updates about the criminal matter, rather than the applicant and/or his representative advising the Tribunal of the progress, as requested and directed. The Tribunal is mindful of s 2A of the Administrative Appeals Tribunal Act 1975 stating, among other things, that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism that is ‘fair, just, economical, informal, and quick’.
Hearing on 30 November 2023, via MS Teams
In the course of the hearing, the applicant confirmed that his appeal has been unsuccessful and that the sentence he received is 12 years of imprisonment. He stated that the earliest date by which he would be eligible for parole would be October 2030. He stated that he intends to seek leave to appeal to the High Court, and that he has been granted Legal Aid. However, the applicant’s representative advised that Legal Aid is still considering whether to grant aid. The applicant said that Legal Aid is assisting him in relation to both conviction and severity. The representative stated that she believed that Legal Aid has funded counsel advice but no decision has been made as to whether Legal Aid will be acting for him in any further appeal. The applicant confirmed his understanding that Legal Aid has sent his ‘file’ to counsel for an opinion. The applicant stated that he has sent a copy of a letter from Legal Aid to the Tribunal which the Tribunal noted has not yet been received. The Tribunal requested a copy. Post-hearing, the Tribunal made further contacts with the applicant and the representative about the copy of the letter from Legal Aid. Subsequently, the Tribunal received the letter from Legal Aid confirming that funding has been granted for Counsel’s advice about prospects.
The applicant gave evidence outlining his version of events, including the help he provided to the family, and engaging in intimate sexual conduct with both the victim and her mother, but not at the same time. In essence, the applicant stated that although he engaged in intimate sexual activities with the victim, this was consensual and when the victim was over 18 years old. He gave evidence that he engaged in intimate sexual conduct with the victim when the mother was not around at home, although the mother became suspicious. The applicant reiterated that he is innocent and that all of this happened to him because of his ‘skin colour’. He said a great injustice has been done in his case. The Tribunal explained to the applicant the role of the judiciary, including independence, impartiality, and the equal treatment of all before the law. He said there was no evidence but there were allegations against him. He later apologised for stating that his ‘skin colour’ played a part in the criminal proceedings and the outcome. He said he will prove his innocence.
The Tribunal advised the applicant that the Tribunal does not have the power to overturn the convictions, or make different factual findings, or release him from imprisonment, as those are matters for the courts.
The applicant claimed that he continues to fear harm in returning to Sri Lanka, and that the authorities in Sri Lanka are continuing to look for him. His wife gave evidence that the family is in a difficult situation in Sri Lanka and that they are suffering financially. She stated that the applicant’s life would be threatened in case of his return to Sri Lanka. She stated that the Sri Lankan authorities continue to ask about the applicant. In closing submissions, the representative contended that the applicant continues to fear harm.
The Tribunal explained to the applicant that although his visa was cancelled under s 116(1)(e), there would appear to be grounds for cancellation under s 501 of the Act for failure to meet the character test, due to the custodial sentence being 12 months or more.
Does the ground for cancellation exist?
The applicant’s visa was cancelled on the basis of the applicant being charged with the following offences:
·CC 352(1)(a) sexual assaults (diverse dates between 1/01/2018 and 24/12/2018).
·CC 222(1) incest (diverse dates between 01/03/2018 and 24/12/2018).
·CC 349(1) rape (between 01/03/2018 and 12/03/2018).
·CC 218(1)(a) precure sexual acts by coercion (between 01/04/2018 and 31/07/2018).
·CC 349(1) rape (between 01/04/2018 and 30/04/2018).
·CC 349(1) rape (diverse dates between 01/04/2018 and 31/07/2018).
·CC 350(1) attempted rape (between 01/08/2018 and 24/12/2018).
·CC 335 common assault (on 07/04/2019).
The delegate’s decision record indicates that the victim is the daughter of the woman with whom the applicant was in an intimate relationship, and that the victim considered the applicant to be her stepfather. Although now the applicant has been convicted, the convictions did not form the basis for the cancellation. The convictions have been upheld by the Criminal Court of Appeal. The applicant has told the Tribunal that he intends to seek leave to appeal to the High Court of Australia. The Tribunal cannot predict the outcome of any further appeal, nor does the Tribunal consider it to be necessary to wait for the outcome of any further appeal for the purpose of s 116(1)(e).
The applicant has continued to claim to be innocent. However, the Tribunal must accept that unless overturned on appeal, the convictions are lawful and are further evidence supporting a finding that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. Even without the convictions, the Tribunal views the applicant’s conduct to be a risk to both the mother and the victim. The applicant was in a position of trust and, on his own evidence, he engaged in intimate sexual conduct with members of the same household, the mother and the victim, although he claims that it was not concurrent. This is not about morality; engaging in intimate sexual conduct with females of the same household suggests, among other things, lack of judgement, insight, and self-control. The fact that the applicant was charged indicates that problems arose due to that conduct. The Tribunal considers the offences with which the applicant has been charged to be serious and abhorrent. The charges involve rape and sexual assault of a person who considered the applicant to be her stepfather.
For those reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) 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
There are no matters specified in the Act or the Migration Regulations 1994 (Cth) 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
The applicant arrived in Australia [in] June 2012 as a UMA seeking protection. He applied for a protection visa, and on 7 January 2017, he was granted a Temporary Protection (Subclass 785) visa which, had it not been cancelled, would have ceased on 4 January 2020.
The applicant is currently serving a term of imprisonment and the earliest date that he is eligible for parole is 2030.
The Tribunal is satisfied that the applicant’s travel to Australia is consistent with the purpose of seeking protection, and as such he was granted the Subclass 785 visa. The applicant continues to make protection claims and he has a compelling need to remain in Australia to complete serving his sentence and/or to pursue any further appeal.
The Tribunal gives this consideration some weight against cancellation.
The extent of compliance with visa conditions
The Subclass 785 visa was subject to conditions 8503 (No Further Stay), 8565 (Notify new Address), and 8570 (Restricted Travel).
There is no evidence that the applicant has not complied with the conditions of the visa.
The Tribunal views compliance with visa conditions to be a lawful expectation and as such, the Tribunal gives this consideration neutral weight.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has previously claimed to have been in a relationship with an Australia citizen. However, in response to the NOICC, the applicant referred to her as an ex-partner, indicating that the relationship has ceased, as well as his relationship with the victim who is the child of the ex‑partner.
There is no evidence before the Tribunal that the applicant has family in Australia who would be impacted by the visa cancellation.
In response to the NOICC, the applicant claimed that he had approximately $60,000 worth of property in his house in Australia which needed to be sorted out. Since responding to the NOICC, the applicant was granted bail and lived in the community and had access to his property and an opportunity to sort things out.
The applicant gave evidence that there would be significant financial hardship in the case of cancellation. He stated that he has [dependants], his wife and [children], all of whom live in Sri Lanka. He stated that his family has been suffering, and that prior to being incarcerated, he used to work and send money to his family in Sri Lanka. The applicant stated that his children are going to school without underwear as the family cannot afford to buy the children adequate clothing.
The applicant stated that he has been getting worse in prison, including mentally. He gave evidence that he takes about 10 tablets a day for diabetes, cholesterol, and high blood pressure.
The Tribunal accepts that the applicant was employed prior to his incarceration, and that to a degree, he had established himself in the Australian community. The Tribunal accepts that the applicant used to send money to his family in Sri Lanka which assisted the family with the purchase of food, clothing, and other household expenses. In the case of cancellation, the applicant’s financial position and that of his family are likely to be adversely impacted leading to financial hardship.
The Tribunal accepts that the applicant’s mental and psychological wellbeing would be adversely impacted in the case of cancellation.
The Tribunal gives this consideration weight against cancellation.
Circumstances in which ground of cancellation arose
The ground for cancellation arose as a result of the applicant being charged with a number of serious offences, including rape, over an extended period of time. The applicant has continued to claim to be innocent and that the allegations are untrue. He claimed that the allegations are made by his ex-partner and her family in a case of revenge. The applicant has been convicted and his appeal was dismissed by the Criminal Court of Appeal. The applicant has claimed that he intends to seek leave to appeal to the High Court. The Tribunal cannot predict the outcome of any further appeal, nor does the Tribunal consider it to be necessary to wait for the outcome of any appeal for the purpose of s 116(1)(e).
As mentioned earlier, even without convictions, the Tribunal views the applicant’s conduct to be serious, and well within his control. On his own evidence, he engaged in intimate sexual conduct with members of the same household, the mother and the victim, although he claims that it was not concurrent. As mentioned earlier, this is not about morality; engaging in intimate sexual conduct with females of the same household suggests, among other things, lack of judgement, insight, and self-control. The fact that the applicant was charged indicates that problems arose due to that conduct.
The Tribunal gives this consideration significant weight in favour of cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence of adverse conduct towards the Department.
The Tribunal gives this consideration neutral weight.
Whether there would be consequential cancellations under s 140
There is no evidence of consequential cancellation under s 140.
The Tribunal gives this consideration some weight in favour of cancellation.
Mandatory legal consequences and international obligations
The applicant confirmed during the hearing that he has no children in Australia and that there are no children in Australia who would be impacted by the visa cancellation.
The Tribunal accepts that the applicant has been found to be owed Australia’s protection. He has continued to claim to fear serious harm if returned to Sri Lanka on the basis of his Tamil ethnicity, membership of a particular social group, namely Tamils from the north/east of Sri Lanka, imputed political opinions, unlawful departure from Sri Lanka, and a failed asylum seeker. In the delegate’s statement of reasons for the cancellation, the delegate accepted that the applicant’s claims give rise to engagement of non-refoulement obligations and that the applicant must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of his protection status.
In the case of cancellation, the applicant will be subject to a bar and as such he would not be able to apply for another visa whilst in Australia, including a protection visa, unless the Minister lifts the relevant bar using personal non-compellable powers. Moreover, in the case of cancellation, the applicant will become an unlawful non-citizen and will be liable for immigration detention under s 189 and removal under s 198 of the Act, subject to the principles in the recent High Court decision in NZYQ.[3]
[3] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154.
Relevance and impact of NZYQ
On 8 November 2023, the High Court of Australia handed down a judgment in NZYQ by pronouncing orders. The Court declared that, by reason of there being and continuing to be no real prospect of the removal of NZYQ from Australia becoming practicable in the reasonably foreseeable future:
·NZYQ’s detention was unlawful as at 30 May 2023; and
·NZYQ’s continued detention is unlawful and has been since 30 May 2023.
A writ of habeas corpus was issued requiring the defendants to release NZYQ forthwith.
The Court published the reasons on 28 November 2023.
NZYQ is of relevance for its interpretation of ss 189(1) and 196(1) of the Act and overruling of one of the holdings in Al-Kateb v Godwin[4] (Al-Kateb). The judgment alters the legal consequences of affirming a cancellation decision where there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision. Prior to the judgment, a likely consequence of cancellation for such persons was indeterminate detention.
[4] Al-Kateb v Godwin (2004) 219 CLR 562.
The High Court in NZYQ overruled the Constitutional holding of Al-Kateb and held, among other things, that a Commonwealth law which authorises the detention of a person, other than through the exercise by a court of the judicial power of the Commonwealth in the performance of adjudging and punishing criminal guilt, will contravene Ch III of the Constitution unless the law is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. The High Court also held that the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia comes to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future.
The Tribunal is satisfied that the effect of NZYQ is that, where pursuant to s 198 of the Act, the statutory duty to remove a non-citizen has arisen, the detention of the non-citizen will no longer be supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future, and the non-citizen must be released from immigration detention. In this case, there is a protection finding, and as such there are non-refoulement obligations. The Tribunal is satisfied that there is no real prospect of removal of the applicant from Australia becoming practicable in the reasonably foreseeable future, and although he may be detained for a period until his immigration status is resolved such as being granted another visa, following NZYQ, he is not likely to face indeterminate detention. Moreover, the applicant is currently serving a lengthy term of imprisonment, and unless any appeal to the High Court is successful, he will remain in prison until at least 2030 when he is eligible for parole. As such, prior to that date, he will not be removed from Australia or detained in immigration detention. It is only upon his release from prison that removal and immigration detention would become potential consequences.
Whether it is an affirm or not, the Tribunal’s decision has no bearing on the applicant’s serving a term of imprisonment, which he must serve, unless and until the High Court determines otherwise.
Although the applicant is not likely to be removed from Australia or detained indeterminately, given that he would face a degree of uncertainty about his migration status, the Tribunal gives this consideration some weight against cancellation.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 785 is a temporary visa.
The Tribunal gives this consideration neutral weight.
Other relevant matters
There are no other relevant matters.
CONCLUSION
For the purpose of this cancellation, the Tribunal has not relied on the convictions, and for the stated reasons, the Tribunal has found that the ground for cancellation under s 116(1)(e) arises. As discussed with the applicant during the hearing, unless and until overturned, the convictions however could give rise to cancellation under s 501 of the Act as the applicant would not meet the character test of s 501(6)(a) of the Act which relevantly provides that a person does not pass the ‘character test’ if, among other things, the person has a ‘substantial criminal record’ such as ‘the person has been sentenced to a term of imprisonment of 12 months or more’.[5] The Tribunal recognizes that it is determining a review of a cancellation decision under s 116(1)(e) and not s 501 where Ministerial Direction 99 would be applicable. It is however noteworthy to mention this to highlight the seriousness of the applicant’s offending.
[5] Section 501(7)(c).
The process of a visa cancellation is complex and is not intended to be a formulaic, or a simple aggregation of the relevant considerations. On balance, although there are aspects against cancellation, the aspects that are in favour of cancellation outweigh those against. The cumulative weight against cancellation does not outweigh the significant cumulative weight in favour of cancellation.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
Antoinette Younes
Deputy President
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