1935626 (Refugee)

[2020] AATA 502

1935626 (Refugee) [2020] AATA 502 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1935626

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Michael Hawkins

DATE AND TIME OF

ORAL DECISION AND REASONS:         31 January 2020 at 3:10 pm (QLD time)

DATE OF WRITTEN RECORD:                6 February 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 06 February 2020 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – cancellation – Sri Lanka – criminal conviction and imprisonment – discretion to cancel visa – factors for and against cancellation – nature and seriousness of criminal conduct – assault within peer group, after argument affected by alcohol – not principal offender, did not strike victim – remorse and plea of guilty – treatment for mental health and alcohol consumption – good work record with offer of ongoing employment – close ties to community – statements of support from brother, friend and victim of assault – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(g)
Migration Regulations 1994 (Cth), r 2.43(1)

CASE

Botha v Minister for Immigration and Border Protection [2017] FCA 362

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.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 December 2019 to cancel the applicant’s protection visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 January 2020 the Tribunal made an oral decision and gave an undertaking to provide a statement of decision and reasons within 14 days of the hearing date. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. 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, the regulations stipulate the circumstances that enliven s116(1)(g). The relevant regulation provides:

   2.43 (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

   (oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any))

   Background

4. The applicant was born in Sri Lanka on [Date]. He is [age] years old.

5. He has lived in Australia since [August] 2012.

6. [In] September 2015, the Applicant received a grant of a Temporary Protection (Subclass 785) visa.

   Criminal Charges and Visa Cancellation

7. [In] December 2017, the Applicant was charged with the following:

   ·One (1) count of Enter Dwelling With Intent At Night In Company,[1] and;

   ·One (1) count of Assaults Occasioning Bodily Harm Whilst Armed/In Company.[2]

   [1] Criminal Code 419 (1) & (3) (A) & (3) (B).

   [2] Criminal Code 339 (1) & (3).

8. The charges were in relation to a single incident [in] December 2017.

9. [In] December 2017, the Applicant was taken into police custody.

10. On or around May 2018, the Applicant was released on bail.

    Outcome of Charges

11. [In] October 2019, the Applicant was convicted of the following charges:

    ·      One (1) count of Enter Dwelling With Intent At Night In Company, and

    ·      One (1) count of Assault Occasioning Bodily Harm Whilst Armed/In Company.

12. In regards to the charge of ‘Enter Dwelling With Intent At Night In Company’, [a District Court judge] sentenced the Applicant to imprisonment for 11 months, suspended after serving 67 days.

13. In regards to the charge of ‘Assaults Occasioning Bodily Harm Whilst Armed/In Company’, [the District Court judge] sentenced the Applicant to imprisonment for 9 months, suspended after serving 67 days.

14. [In] November 2019 the Applicant received a Notice of Intent to Consider Cancellation further to Section 116 of the Migration Act 1958 (Cth) (‘the Act’)

15. [In] December 2019, the Applicant received by hand a Notice of Cancellation further to Section 116. On this date he was taken into Brisbane Immigration Transit Accommodation.

    Criminal History

16. The applicant has no outstanding criminal charges. The applicant has no criminal history.

    Cancellation

17. In the absence of a response by the applicant to the NOICC in the specified 14 day window, the Delegate of the Minister (‘the Delegate’) proceeded to cancel the applicant’s visa.

    Does the ground for cancellation exist?

    s.116(1)(g) and Regulation 2.43(1)(oa) – conviction for an offence

18. The combined operation of s.116(1)(g) and r.2.43(1)(oa) provides a discretion to the Minister to cancel a temporary visa should the Minister be satisfied that the visa holder has been convicted of any offence under a Commonwealth or State/Territory law.

19. The Tribunal discussed with the Representative that it appeared not to be in contention that the applicant had been convicted of an offence against a law of the State of Queensland.

20. The Tribunal is satisfied that the ground for cancellation exists.

    Evidence at the review hearing

21. The applicant had provided an extensive written statement prior to the hearing together with multiple written witness statements. The Tribunal is satisfied that the applicant has been sentenced and that there are no pending criminal charges in relation to the applicant.  

22. The applicant appeared at the Tribunal in the company of his Representatives, being a registered migration agent. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

23. The Tribunal noted that the applicant had not responded to the Department’s NOICC. It suggested that the applicant may have given the Delegate no alternative than to cancel the visa in the absence of any submission as to why the visa ought not be cancelled, given that the grounds for cancellation had been made out under s.116(1)(g). The Tribunal inquired of the applicant why he did not respond to the NOICC.

24. The applicant replied that he had received the NOICC as it had been handed to him personally whilst he was in prison. When asked again why he didn’t respond to it, he explained that he couldn’t understand what the document was and that there were no interpreters present at the time he was in prison.

25. The Tribunal asked the applicant about his family. He replied that he had [a] brother in Australia whom he was presently living with. He said he also had [other siblings] in Sri Lanka. His parents were also still in Sri Lanka.

26. He then added that he has a wife and [age] year old [child] living in Sri Lanka who he provides for.

27. The Tribunal asked the applicant about his protection claims. He replied that he sought protection to save his life from the authorities and army in Sri Lanka. He explained that he was helping the freedom fighters in Sri Lanka. His [brother] was a freedom fighter. He was accused of supporting them and was requested by the authorities to “sign in” every three days. Then they wanted to transfer him to Colombo. He feared being interrogated and harmed. He said the trip to Colombo was notorious for torture. He stated that his brother escaped first, but then got caught and was delayed a month. The applicant escaped but was able to secure direct passage to Australia, and hence beat his brother to Australia.

28. The Representative intervened to explain that the applicant was on the pathway to permanency. The Tribunal commented that it was therefore even more extraordinary that the applicant should take the risk he did in being involved in the activities he was and to risk arrest and cancellation of his visa.

29. The Tribunal discussed the events of [December] 2017. It asked the applicant why he should happen to have a knife in his hand. He replied that he really didn’t know as he was intoxicated at the time. He doesn’t deny what happened, just accepts the circumstances as have been explained to him. He accepts that he did wrong, that he was convicted and punished.

30. The Representative then offered that the police did not find a knife at the scene, and the only evidence of a knife was the victim’s statement. There were no injuries consistent with the use of any knife and there was no evidence of the applicant having assaulted anyone.

31. The Tribunal asked the applicant what the judge had said to him. He said the judge warned him not to do anything like this again. He went on to state that he had not touched alcohol since. The Tribunal asked the applicant whether he had any history of violence, noting that he supported the freedom fighters in Sri Lanka and suspected that may have been a violent environment. He agreed it was, but stated that his role was one of support only, recovering injured fighters and digging bunkers. He said he was not a violent person at all. He reiterated he was only involved with the freedom fighters was because his brother was one.

32. The Tribunal asked the applicant about his job prospects. He replied that he was a good worker and enjoyed working in the [workplace]. He said that [Employer] had agreed to take him back if he was released from detention.

33. The Tribunal asked the applicant what he has learned from the experience. He replied that he shouldn’t ever drink. He should support his family, and he can only do that by working and not being in trouble. He said he had learned a lesson.

34. The Tribunal noted the witness statements in support of the applicant.

35. [Mr A] has known the applicant for 8 years and spoke to the applicant’s contribution to local [City] sporting communities and his fund raising efforts for them. He also spoke of support he affords friends and neighbours with [a practical task].

36. The applicant’s brother [Mr B], provided an impassioned defence of his brother stating that he understood the assault charges did not arise by reason of malicious intent, rather excessive alcohol. He spoke of the applicant remaining friends with the victim of the assault and spending significant time with him. He spoke of the applicant’s remorse and of the applicant not being a violent person. He then addressed the impact of his brother being removed, both on the applicant and on himself.

37. [Mr C], the victim of the crime, also proved a statement in support. He stated that he did not believe the applicant had any intent to harm him, believing an argument broke out as a result of too much alcohol. He states that at no time did the applicant strike him. He does not believe the applicant is a risk to anyone in the community. He also states that he remains friends with the applicant.

    Consideration of discretion

38. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, is considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

39. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled.  In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit:  see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

40. The Tribunal considered the representative’s submission as follows:

    Representative’s Submission

41. Neither the Act nor the Regulations specify any mandatory considerations that should be taken into account when exercising the discretion under s.116(1)(g).

42. The Minister has not issued any directions about the factors to be considered but the Department has developed guidelines in ‘PAM3 –‘General visa cancellation powers (s 109, s 116, s 128, s 134B & s 140)’. These guidelines enumerate the following considerations:

    (1)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;

    (2)the extent of compliance with visa conditions;

    (3)the degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    (4)the circumstances in which the ground of cancellation arose;

    (5)past and present conduct of the visa holder towards the Department;

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

    (7)whether there would be consequential cancellations under s.140 of the Act;

    (8)whether any international obligations would be breached as a result of the cancellation, and

    (9)any other relevant matters.

    Purpose of visa and whether there is a compelling reason to remain in Australia

43. The Applicant’s purpose for remaining in Australia is to seek protection from his country of reference, Sri Lanka. The Applicant has no right to enter and reside any third country. Consequentially, the Applicant has a compelling need to remain in Australia.

44. We note that the delegate gave this consideration “some” weight in her decision. We submit that significant weight should be placed on this consideration.

    The Extent of Compliance with Visa Conditions

45. There is no evidence the Applicant has behaved inappropriately towards the Department nor has previously failed to comply with his relevant visa conditions.

46. We note that the Delegate gave this consideration “little” weight in her decision. We consider that in the absence of other adverse evidence as to the Applicant’s character and compliance history, that the appropriate measure exceeds “little” weight.

    The Degree of Hardship That May Be Caused (Financial, Psychological, Emotional or Other Hardship

    Emotional or Other Hardship

47. Cancellation of the Applicant’s visa would cause the Applicant either the acute hardship of indefinite detention, or alternatively, the hardship of forcible removal from Australia to his country of reference, Sri Lanka.

48. The Applicant has resided in the Australian community for almost eight years and has significant and close ties to the community.

49. We submit that the consequence of indefinite detention or removal would exceed every category of financial, psychological and emotional hardship.

50. The Australian Human Right Commission has noted that the objective of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) was to enable the Australian Government to manage risks posed to the Australian community by non-citizens who have committed crimes. However, AHRC notes that the community expectation of proportionality and reasonableness in the cancellation regime may be violated where a cancellation decision entails more serious hardship consequences, noting:

    [W]here a visa decision has more serious consequences — such as possible refoulement, prolonged immigration detention and separation from family — the limitations on human rights caused by the decision may not be reasonable or proportionate, even if they have a legitimate objective. What is required is an assessment of the seriousness of the potential consequences against the importance of the objective sought to be achieved to determine whether the limitation on human rights is reasonable and proportionate.

    The nature of the conduct that gave rise to a visa cancellation is also relevant to assessments of reasonableness and proportionality. For example, where a visa is cancelled on the basis of a criminal charge, suspected criminal conduct or a relatively minor offence, there is a higher risk that any consequent limitations on human rights may be disproportionate in the circumstances.[3]

    [3] Australian Human Rights Commission Submission To The Joint Standing Committee On Migration, Review processes associated with visa cancellations made on criminal grounds, 27 April 2018 at [103]

51. We refer to the submissions below and note that the Applicant’s offences are on the lower end of seriousness for offences of that nature.

52. The delegate stated:

    The visa holder did not respond to the NOICC. I am therefore unaware of any specific hardship that may be caused to the visa holder or his family members as a result of the cancellation of this visa… I acknowledge that a cancellation outcome may cause some degree of hardship to the visa holder and his family.

53. We refer to the statements and support letters lodged in support of this submission and note that the cancellation of this visa would cause significant hardship in the following categories:

    Emotional Hardship.

    The Applicant has close ties to the [City] Tamil refugee community including to his biological brother who also resides in [City] and provides him with considerable emotional support.

    Psychological Hardship.

    The Applicant states that he suffers from symptoms consistent with a potential diagnosis of PTSD as a consequence of his experiences in Sri Lanka. The Applicant states (and is supported by the support statements) that forcible return to Sri Lanka would cause significant psychological deterioration.

    Financial Hardship.

    The Applicant would lose his employment in the [workplace] and consequentially lose his capacity to support both himself and his family.

54. We submit that in this case, there will be considerable psychological, emotional and financial hardship to the Applicant if his visa remains cancelled and he is necessarily removed. We further submit, the significant level of hardship that the Applicant will face significantly outweighs the risk actual to the Australian community and necessarily violates both the community expectation of proportionality and reasonableness.

55. Consequently, we submit that cancellation in this instance is inconsistent with the purpose of the exercise of the discretion under s116.

56. We note that the delegate gave this consideration “some” weight in her decision. We submit that significant weight should be placed on this consideration.

    How the Circumstances in Which the Ground of Cancellation Arose;

57. The convictions under the Criminal Code Act 1899 (Qld) (‘the Criminal Code’) that form the basis of the immediate circumstances which are the grounds for the exercise of the discretion to cancel the Applicant’s visa.

58. While the PAM does not specify what is to be taken into account in considering the “circumstances” of the grounds for cancellation, we submit that ‘circumstances’ should be read with reference to the ‘circumstances’ that are considered under an analogous cancellation that could be considered pursuant to s501 and s116(e). This necessarily includes extenuating and mitigating factors that inform the wider context of the relevant grounds.

59. We submit that it is open to the Tribunal to consider the following wider circumstances:

    ·The Applicant’s claimed mental health;

    ·The nature and seriousness of the conduct leading to the offence;

    ·Whether there is an ongoing risk to the safety of any identifiable segment of the Australian community; and,

    ·The broader risk the Applicant person may engage in criminal conduct in Australia.

1. We now address each factor independently.

   Applicant’s Mental Health

   We refer to the Statutory of the Applicant dated 24 January 2020 and note that at Paragraph 20 and onwards the Applicant provides further background to his mental health. From Paragraph 27, the Applicant discloses the particular effects that his experiences of harm (as claimed and accepted in his Protection visa application of 8 September 2015) has had on his mental health.

   We note that a forensic psychologists report for the Applicant has been sought and is anticipated.

   Irrespective of the forthcoming report, we submit that the Tribunal is in a position to accept that the Applicant is in a class and cohort of individuals whose claimed and accepted experiences of harm lend significant likelihood to a diagnosis of Post-Traumatic Stress Disorder.

   We refer to the text Social Work with Refugee Survivors of Torture and Trauma by STARTTS (NSW Service For Treatment & Rehabilitation Of Torture & Trauma Survivors) which relevantly notes:[4]

   [4] Robiun Bowles, Social Work with Refugee Survivors of Torture and Trauma, 2005.pdf.

   Many survivors of torture and trauma experience chronic symptoms that continue for many years, including hyper-arousal (causing, for example, sleep problems, irritability, poor memory, and concentration); re-experiencing the traumatic events (traumatic nightmares, intrusive memories, and flashbacks); and numbing and dissociation (avoiding thinking about the past, avoiding people or places that are a reminder of the past, being unable to remember aspects of the traumas, general social withdrawal, inability to feel certain emotions, and restricted sense of the future). Herman (1992) describes this condition as the ‘dialectic of trauma’ in which the survivor vacillates between a constant re-experiencing of the trauma, and trying to block out the unbearable memories. It appears that in the early period following the trauma hyper-arousal and re-experiencing the trauma predominate, whereas later numbness and dissociation seem stronger.

   We submit that this is supportive of the proposition that unresolved or untreated trauma experienced by the Applicant may be a contributing factor of anti-social and substance abuse behaviours.

   The Applicant does not speak English and resides in a remote and regional area. The Applicant has not had access to psychological support and counselling (nor interpreting) services that would assist him addressing his experiences of harm.

   The STARTTS report cited specifically addresses the effect of trauma on refugee males in the Australian contexts, noting the prevalence of isolation behaviours and alcohol dependency:

   Refugee men are more likely to have experienced longer terms of imprisonment and lengthier, extreme forms of torture. Many have been soldiers. They are more likely to have bullets or shrapnel embedded in their bodies, and to have poorly set broken bones and other injuries. Many TPV holders are young men who have left their families overseas; approximately half the men in the Refugee and Humanitarian Program in 2002–03 were under the age of 20. Often they spend long periods of isolation in Australia. If they have a permanent visa they may wait for lengthy periods for applications to sponsor their families to Australia to be processed. Some suffer from drug-, alcohol- and smoking-related problems, and from sexually transmitted diseases (other than HIV/AIDS for which there is offshore screening). Other problems include unemployment;  and

   poor self-confidence due to their loss of status in the family as the breadwinner and traditional head of the family. Men are less likely to seek support from groups or from counsellors, or to attend general health services.

   We note that the Applicant acknowledges that the offences were committed in conjunction with the Applicant’s substance abuse patterns, particularly alcohol abuse.

   We refer to the Applicant’s statement and note that since the offences, the Applicant has drastically reduced if not ceased his alcohol consumption and has indicated his willingness seek intervention and treatment for his mental health concerns.

   Consequentially, we submit that the Member should consider the following:

   1.The Applicant’s claimed and accepted history of torture and trauma,

   2.The Applicant’s claimed mental health concerns,

   3.The exacerbating factor of the Applicant’s relative social isolation,

   4.The well-documented link between untreated trauma and substance abuse,

   5.The exacerbating factor of the absence of treatment or mental health support for individuals in the Applicant’s particular circumstances.

   We further submit that these considerations should be considered as mitigating factors in favour of the Applicant in considering the nature and seriousness of his offences.

   The nature and seriousness of the conduct;

   The First Offence:

   In regards to the charge of ‘Assaults Occasioning Bodily Harm Whilst Armed in Company’ under the Criminal Code Section 339 (1) & (3(a) & 3(b)(iii), [the District Court judge] sentenced the Applicant to imprisonment for 9 months, suspended after serving 67 days. The Maximum sentence for this offence is 10 years.

   We extract the full relevant provision below:

   339    assaults occasioning bodily harm

   (1) Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime, and is liable to imprisonment for 7 years.

   (3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons, the offender is liable to imprisonment for 10 years.

   The Statement of Facts summarises the involvement of the Applicant:

   At some point after 10:30pm the defendants were in the house. While in the house [Mr D] picked up a broomstick or similar and [the applicant] was holding a knife.

   [Mr D] moved towards the complainant, who was sitting on a chair in the living room, and insulted him in Tamil. He hit the complainant in the face with the stick a couple of times, causing lacerations to the complainant’s nose and cheek. [The applicant] stood nearby. (Count 2 – both defendants).

   In respect of Count 2, [Mr D] is liable as the principal offender per s 7(1)(a). [The applicant] assisted him (7(1)(b) or (c)) by his voluntary and deliberate presence.

   We refer to the considerations below for further comment on these facts.

   The Second Offence:

   In regards to the charge of ‘Enter Dwelling With Intent At Night In Company’ under the Criminal Code Section 419(1) & (3(a) & 3(b)(iii), [the District Court judge] sentenced the Applicant to imprisonment for 11 months, suspended after serving 67 days. The Maximum sentence for this offence is life imprisonment.

   We extract the full relevant provision below:

   419    Burglary

   Any person who enters or is in the dwelling of another with intent to commit an indictable offence in the dwelling commits a crime.

   Penalty— Maximum penalty—14 years imprisonment.

   If the offender enters the dwelling by means of any break, he or she is liable to imprisonment for life.

   If—

   (a)  the offence is committed in the night; or

   (b)  the offender—

   (i)uses or threatens to use actual violence; or

   (ii)is or pretends to be armed with a dangerous or offensive weapon, instrument or noxious substance; or

   (iii)is in company with 1 or more persons; or

   (iv)damages, or threatens or attempts to damage, any property;

   the offender is liable to imprisonment for life.

   Any person who enters or is in the dwelling of another and commits an indictable offence in the dwelling commits a crime.

   Penalty— Maximum penalty—imprisonment for life.

   The Penalties and Sentences Act 1992 , section 161Q also states a circumstance of aggravation for an offence against this section.

   An indictment charging an offence against this section with the circumstance of aggravation stated in the Penalties and Sentences Act 1992 , section 161Q may not be presented without the consent of a Crown Law Officer.

   We note that the heading for this Criminal Code item indicates the offence is in relation to ‘burglary’. Item 419 is found in Chapter 39 of the Criminal code which is entitled: “Burglary— Housebreaking—And Like Offences”.

   It is unclear why QLD state prosecutors charged the Applicant with a Criminal Code item directed primarily towards burglary. It is further unclear why the terminology of the charge was reconfigured to ‘Enter Dwelling With Intent At Night In Company’.

   While the factual elements of this offence were not specified in the statement of facts provided to the jury in this matter, it is understood on the basis of the content of the statement of facts that the elements were made out by the Applicant (1) being in the dwelling of another (2) with an intent to commit an indictable offence in the dwelling, along with the aggravating factors of it being; (3) at night (4) in the company of another person. Precisely, these elements appear to have been factually established by (1) the presence of the Applicant in the premises of [Mr F]’s house (2) with the intent to commit assault against the victim [Mr C] (3) at night (4) along with the co-convicted party members of [Mr E] and [Mr D].

   The Statement of facts state that the Applicant was present in the home of [Mr F] by invitation.

   On enactment, Section 419 of the Criminal Code originally made provision for the offence of burglary to be established by the elements of “breaking and entering the dwelling house of another with intent to commit an indictable offence.” Amendments in 1997 arranged the provisions to simply provide that an offence is committed when an offender “enters or is in a dwelling house with intent”. The court has held that the new construction was not designed to create a new offence of being in unlawfully in premises with intent as this was covered elsewhere, and furthermore, the relevant chapter of the Criminal Code was wholly directed towards “Burglary—Housebreaking—And Like Offences”.

   Specifically, White AJA of the Supreme Court Of Queensland held:

   To the extent that the legislature wished to punish a person for being without lawful excuse in the yard associated with a building or dwelling there were the various provisions of the Vagrants Gaming and Other Offences Act 1931.[5]

   [5] R v Smith [2008] QCA 406 at [23].

   Likewise, it is quite clear the legislative intent of the 1997 amendments did not contemplate an offence of burglary arising in the circumstances of an assault by an invited guest at a house party. It is germane to statutory interpretation that the offence name, relevant chapter name, legislative history, legislative intent and caselaw is relevant to the correct interpretation of the elements and the mischief sought to be remedied by the creation of a particular offence.

   Irrespective of the legal defense the Applicant received in respect of this charge, he has nonetheless been convicted on this count and the limitation date for review has elapsed.

   It is open to the Tribunal to consider whether this second offence merely restates the elements of the first offence relating to assault.

   Considerations Relevant to Nature and Seriousness of the Offence

   The instrument “Direction no. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (the Directions) sets out principles that sho uld be taken into account in considering whether to exercise the discretion to refusal or cancel a visa under that Section. While these Directions are not applicable in a policy-based assessment under a cancellation pursuant to s116, we consider that they raise important considerations that are relevant in an assessment of “nature and seriousness’ of an offence.

   Further to the Directions we note:

   (a)  The offence was a violent incident, which is conceded to weigh against the Applicant.

   We note in regards to this consideration that the facts (contained in the Statement of Facts and the victim’s contemporaneous statement) indicate that at no point did the Applicant strike or physically make contact with the victim.

   The principal offender, [Mr D], was involved as the agent that primarily struck and harmed the victim.

   (b)  There is no evidence the offences were committed against vulnerable members of society.

   We note that the offence was committed against a peer of the Applicant. We refer to the Statutory Declaration made by the victim, [Mr C], in support of this Application noting that the victim did not consider the Applicant to hold any malicious intent against him.

   (c)   the offences were not committed in relation to immigration detention,

   (d)  the Applicant has no present criminal conduct or past or present general conduct,

   (e)  the sentence was notably low, with regard to the maximum sentencing available to [the District Court judge],

   (f)    in regards to frequency, the Applicant only committed a single incident, the relevant facts of which form the basis for both the first and second offence.

   (g)  cumulative effect of the offences was low.

   We refer again to the Statutory Declaration of the victim, [Mr C], who notes that he is willing to be friends with the Applicant, and that he does not consider the Applicant to be a violent person. This is strongly supportive of the proposition that the overall impact on the victim of the present Applicant’s particular involvement in this offence was not considerable.

   (h)  the Applicant has been forthright with the Department in relation to this conviction.

   We note that it is worth addressing that the Applicant pled ‘not-guilty’ to the abovementioned convictions. The Applicant addresses his plea in his statement, noting, that his memory was affected by alcohol, and that it was a good faith plea in respect of his understanding of the event. The Applicant acknowledges and accepts the findings of the court.

   Secondly, it is further worth addressing that the Applicant fled the home once the incident occurred. We submit that the Applicant experienced significant mistreatment by the police in Sri Lanka and holds considerable institutional distrust which is common to the Sri Lankan Tamil community.

   Consequentially, with regard to the above factors, we submit that the “nature and seriousness of the conduct” is on the lower end of the spectrum for offences of this kind.

   Whether there is a risk to the safety of any identifiable segment of the Australian community

   The exercise of the discretion in pursuant to Section 116(1)(e) of the Act in these types of cases, where an Applicant has offended against members of the Australian community, will often necessitate speculation as to the likelihood of future occurrences. It is also understood the Tribunal will likely turn its attention to consider the risk that an Applicant may reoffend in the future and the seriousness of the harm to members of the Australian community should the Applicant reoffend in the future.

   The question of whether the presence of a visa holder is or may be a risk to the safety of the Australian community or a segment of the Australian community is a question of fact (per MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15]).

   In assessing whether the ground is established, the Tribunal must have regard to the information and evidence available at the time of the review decision, including the circumstances of the applicant prevailing at that time (per Shi v Migration Agents Registration Authority [2008] HCA 31)

   There is no definition of 'risk' in the Act or Regulations and as such the ordinary meaning applies, namely the chance of injury, loss or hazard: refer generally, the Macquarie Dictionary, revised 3rd edition, 2001.10

   The expression ‘safety’ has an ordinary meaning which includes ‘freedom from injury or danger’. The relevant risks from which the Australian community, or a segment of the community, are to be protected therefore include ‘injury, danger and other forms of harm (such as physical harm)’.

   The relevant section of the PAM exploring this consideration notes the following:

   Delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community (or the health or safety of an individual(s)). For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses….

   In determining whether there is a risk to the safety of a segment of the community, an individual, or individuals, delegates should attempt to identify the safety of which individual, individuals or segments of the community would be put at risk by the visa holder’s presence.[6]

   [6] POLICY - MIGRATION ACT- Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, 134B and s140) - s116(1)(e) - Risk to community public health, safety or good order - Thresholds for s116(1)(e).

   We note that Departmental policy provides indicative examples the genus of circumstances that ordinarily enliven Section 116(1)(e)(i), which is illustrative for determining a material quantum of risk.

   the person has threatened to cause injury or physical harm to an individual or to a group of people in Australia, or to Australians in general, or

   the person is found to be in possession of child pornography, as this may indicate a higher risk of engaging in child sex offences. It is therefore open to delegates to find that a person in possession of child pornography may present a risk to the safety of Australian children as a segment of the community, or

   the person has been charged with a sexual offence against a minor and the circumstances of the case are such that there is a possibility that they may commit similar offences against minors generally and may present a risk to the safety of a segment of the Australian community.[7]

   [7] POLICY - MIGRATION ACT- Visa cancellation instructions - General visa cancellation powers (s109, s116, s128, 134B and s140) - s116(1)(e) - Risk to community public health, safety or good order - Thresholds for s116(1)(e)

   In each of these indicative examples, it is quite clear that there is a segment of the community at direct risk of the example offender’s behavior.

   We refer to Burton (Migration) [2018][8] which elaborated on how the threshold of a “risk to the safety of a segment of the community” could fail to be established.

   [8] AATA 4220 (27 August 2018).

   Where a visa holder has been convicted of serious violent criminal conduct, particularly if this is repeated, this may establish that there is or may be a risk to the safety of the Australian community or a segment of the Australian community under s 116(1)(e)(i). The safety of the Australian community or a segment of the Australian community speaks of a broad concept which connotes a level of repeated or serious violence that reaches beyond localised or individualised acts of violence. In contrast, s 116(1)(e)(ii) is directed to the risk to the safety of an individual or individuals and contemplates targeted violence, such as domestic violence.[9] (our underline)

   [9] Burton (Migration) [2018] AATA 4220 (27 August 2018) at [51(4)].

   There are no facts which suggest that the Applicant has made threats towards or has indicated that his behavior is a part of a wider pattern towards a segment of the community.

   We note that the convictions were in relation to single incident of violent conduct. The Applicant has no other criminal convictions nor any other matter that would give rise to an adverse finding on character. This is suggestive the offences were both highly localized and individualised.

   There are no facts to suggest that the victim of this offence is at any further risk of harm. Furthermore, we refer to the statement of the victim who specifically identifies that he does not consider the Applicant to be either a risk to him or any other member of the community.

   We submit that it is open to the Tribunal to conclude that there is no ongoing risk to any particular member or sector of the Australian community.

   The broader risk the Applicant person may engage in criminal conduct in Australia

   We refer to the Statement of Facts, the Statutory Declaration of the Applicant, the Statutory Declaration of the brother of the Applicant, the Statutory Declaration of the victim, and the Support Letter from community member, [Mr A], all of whom acknowledge the role that substance abuse played in contributing to the Applicant’s offences. We note the Applicant has demonstrated significant remorse for his actions. Particularly, the Applicant has recognised the role that his substance abuse patterns has caused and taken remedial steps. While the Applicant has language barriers that prohibit his involvement in Alcoholics Anonymous (or equivalent), he has signalled his lifestyle changed in a culturally pertinent fashion; by moving in with his [brother] and seeking his guidance.

   The Applicant has also declared his intention to change the nature of relationship to alcohol and to strive to support his family.

   We note that these acts should be considered in the broader context of the Applicant’s good behaviour and the absence of any adverse information in relation to his character.

   We submit on the basis of these facts it is open to the Tribunal to accept that the risk of the Applicant engaging in criminal conduct in Australia is low.

   Conclusion on “Circumstances in which the ground for cancellation arose”

   The Delegate did not receive a response to the NOICC and accordingly did not take into account any extenuating circumstances nor any particularities of the circumstance that mediated placing significant weight on this factor.

   The Delegate noted:

   “The grounds for cancellation arose when the visa holder’s violent actions resulted in the visa holder being convicted of the above listed offences. I am not aware of any extenuating circumstances beyond the visa holder’s control that led to the existence of the grounds for cancellation. I give this consideration significant weight in favour of cancelling the visa.”

   We submit it is open to the Tribunal to find that mitigating circumstances relating to the offences exist. Furthermore, it is open to conclude that without derogating the seriousness of the Applicant’s conduct, the nature and seriousness of the circumstances leading to the grounds for cancellation are on the lower end of the spectrum for offences of this nature. Lastly, it is open to the Tribunal to conclude that there is no evidence of ongoing risk to any member of sector of the Australian community and that the Applicant’s future risk of engaging in criminal conduct in Australia is objectively low.

   While there is no specific mention in the Departmental policy guidelines of consideration of the expectations or values of the Australian community in the exercise of the discretion to cancel a visa under section 116 of the Act, we note that the overall good behaviour of the Applicant, along with his evident remorse, and the absence of ongoing concern held by the victim is strongly suggestive that he meets the standard of the Australian community for remediation and contrition.

   We submit that appropriately moderated weight should be placed on this consideration.

   Compliance with conditions and past and present conduct towards the Department

   The Delegate noted “(T)here is no evidence that the visa holder has previously been uncooperative with the Department. I give this consideration a little weight against cancelling the visa.”

   We concur with the comments of the Delegate in relation to this consideration.

   Whether there would be consequential cancellations under s.140 of the Act;

   The delegate stated: “There is no evidence before the Department there are persons in or outside of Australia whose visas would be consequentially cancelled due to cancelling the visa holder’s Temporary Protection visa. Therefore I am unable to give any weight for or against a decision to cancel the visa for this consideration.”

   We concur with the comments of the Delegate in relation to this consideration.

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

   Australia has an obligation under Article 33 of the Refugee Convention not to refoule (that is, expel or return) a refugee to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.[10] Australia also has obligations under article 7 of the ICCPR, article 37(a) of the CRC and article 15(1) of the CRPD not to subject anyone to cruel, inhuman or degrading treatment or punishment;[11]and under article 3(1) of the CAT not to return a person to another country if they would be in danger of being subjected to torture.[12]

   [10] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 33(1).

   [11] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 7; Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 37(a); Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) art 15(1).

   [12] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 3(1)

   We note that the Applicant was granted a Temporary Protection (Subclass 785) visa on 8 September 2015. Consequentially, Australia holds a non-refoulement obligation in respect of the Applicant, as recognised in the Cancellation record by the Delegate. It would breach Australia’s international obligations on non-refoulment for the Applicant to be removed from the Australian community.

   Under the Ministerial instructions to delegates in Direction 79, Australia’s non-refoulement obligations are one of the considerations that Delegate must take into account when determining whether to cancel a visa under s 501 or revoke a mandatory visa cancellation under s 501CA. Namely, the relevant portion reads:

   (2) The existence of a non-refoulement obligation does not preclude cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

   …

   (6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non- citizen should continue to hold a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa were cancelled, they would face the prospect of indefinite immigration detention.

   While there is no equivalent direction for cancellations under Section 116, we note that this direction should be accepted as providing the minimum standard of consideration provided to a visa holder to whom Australia holds protection obligations. This is especially pertinent as the Applicant holds a temporary visa that is temporary in only a nominal sense; in practice such TPVs function as periodically renewed permanent visas.

   We note that the standard to “weigh carefully” the seriousness of the visa holder’s criminal offending against the non-refoulement obligation by the decision maker appears to have not been undertaken by the Delegate.

   Specifically, the Delegate made only the following comment in the decision to cancel the Applicant’s visa:

   On 08 September 2015 the visa holder was granted a Temporary Protection visa, and I accept that he must be treated as a person in respect of whom Australia has non-refoulement obligations, subject to any reassessment of his protection status…

   Additionally, if the visa holder’s Temporary Protection visa is cancelled he will become an unlawful non-citizen and will be liable for immigration detention under s189 and removal under s198 of the Act. I am also aware that s197C of the Act provides that for the purposes of s198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   I am mindful that even if I cancel the visa holder’s visa, the Minister has a personal non- compellable power in s195A of the Act to grant a visa to him if he thinks it is in the public interest to do so. I am also mindful that if the Minister does not consider exercising that power, or does not exercise it in the visa holder’s favour, he will be liable for removal as soon as reasonably practicable in accordance with s198 of the Act, including to Sri Lanka, having regard to s197C.

   We submit that this comment is in danger of error on two grounds:

   1.Failure to take into account a carefully weighing of the seriousness of the decision to cancel, and;

   2.Failure to contemplate the specific legal consequences of cancellation of a visa by a visa holder with active non-refoulement obligations.

   Section 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa, if the Minister thinks it is in the public interest to do so. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)).

   Section 198(2A) of the Act which applies to the circumstances of this case relevantly provided that “an officer must remove as soon as reasonably practicable an unlawful non-citizen”.

   Section 197C of the Act provides:

   1. For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   2. An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non- refoulement obligations in respect of the non-citizen.

   Section 189(1) of the Act provides:

   1.     If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

   We note that the Delegate has proceeded on an incorrect interpretation of the effects of s197C. In DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, North ACJ explained the effect of ss 198 and 197C, at [26]:

   The Minister’s reasons disclose that he understood that if the protection visa application was refused, the applicant could be detained in Australia for an indefinite period. In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.[13]

   [13] DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [26].

   Consequentially, North ACJ held that the operation of s197C is that if an application for a protection visa is refused (or by corollary, cancelled), then the person will either be removed to their home country immediately, or, if the Minister has decided to consider “alternative management options”, the person will be detained for a definite period while the Minister considers whether to exercise the power to grant the person a visa under section 195A. Should the Minister decline to exercise the section 195A power, then the person will be removed to her/his home country.

   Therefore, because Section 197C has been introduced into the Migration Act, it can no longer be correctly said that the legal consequences of the refusal of a protection visa include that “Australia will continue to meet its international non-refoulement obligations.”

   This reasoning was affirmed in AQM18 v Minister for Immigration and Border Protection (2018) FCA 944 (21 June 2018) which upheld DMH16, relevantly noting how the Minister should have exercised the discretion to cancel:

   [81] It was not submitted on behalf of the Minister in the present case that DMH16 was wrongly decided or that the above passage does not accurately describe the effect of ss 198 and 197C. Counsel for the Minister accepted that: the effect of s 197C is that international non-refoulement obligations are no longer relevant to the obligation to remove a person under s 198; and the consequence is that, subject to the Minister considering alternative management options such as s 195A, the person must be removed as soon as reasonably practicable notwithstanding that Australia may have non-refoulement obligations in respect of the person…

   [88] I consider that the Minister misunderstood (and therefore failed to take into account) the legal consequences of a decision to refuse the applicant a visa. That had a material bearing on the Decision, as the above discussion indicates. In particular, had the Minister proceeded on the correct basis, it is likely that he would have given detailed consideration to the risk that the applicant faced upon being returned to [redacted] and weighed that risk against other relevant factors.

   It is noteworthy that even the decisions of AQM18 and DMH16 both entailed the requisite ‘careful weighing’.

   Accordingly, these authorities indicate that a decision to refuse or cancel a visa for an applicant with an active non-refoulement must entail a detailed consideration to the ongoing risks. While the Delegate stated that the Applicant ‘must be treated as a person in respect of whom Australia has non-refoulement obligations’ the effect of the cancellation decision is that the Minister

   Accordingly, we submit both:

   1.  The decision is infected by legal error by failing to understand the legal consequences of cancellation, and;

   2.  The Delegate failed to give ‘careful’ consideration to the non-refoulement obligations.

   The Delegate failed to give ‘careful’ consideration to the non-refoulement obligations

   International obligations

   The legal consequences of cancellation may be to cause the Applicant to be subject to mandatory detention as an unlawful non-citizen in the Australian community further to Section 189 of the Act.

   Given the Applicant has no right to enter and reside a third country and cannot return the country from which he fears harm, he has no capacity to transit offshore nor regularize his status should the Minister decline in the immediate to medium term, to exercise his discretion pursuant to s195. The Applicant faces the prospect forcible return to Sri Lanka or indefinite detention.

   (We note that in practice, the legislative framework, particularly s197C, requires an Applicant to be immediately removed from the Australian community, however for the purpose of this consideration it is necessary to consider Australia’s International Obligations apart from the functional effect of its domestic legislation).

   Under the Migration Act there is no time limit on how long a person can be detained.[14] The Applicant must remain in immigration detention until he is removed or granted a visa.

   [14] Migration Act 1958 (Cth), s 196.

   Australia has an obligation under article 9(1) of the International Covenant on Civil and Political Rights (ICCPR) not to subject anyone to arbitrary detention.[15] According to the United Nations Human Rights Committee, ‘arbitrary detention’ includes detention that, although lawful under domestic law, is unjust or disproportionate. In order for the detention of a person not to be arbitrary, it must be a reasonable and necessary measure in all the circumstances.[16]

   [15] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 9(1).

   [16] Human Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988, UN Doc CCPR/C/39/D/305/1988 (23 July 1990) [5.8]. At (viewed 7 December 2016); Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (3 April1997) [9.4]. At (viewed 7 December 2016).

   Once detained, unlawful non-citizens must remain in detention until they are either granted a visa or removed from Australia. In these circumstances, there is a real risk the detention may become arbitrary in violation of Australia’s obligations under the ICCPR.[17]

   [17] See, for example, M.M.M. et al v Australia, Communication No. 2136/2016, UN Doc CCPR/C/108/D/2136/2012 (25 July 2013) [10.3–10.4]; F.K.A.G. et al v Australia, Communication No. 2094/2011, UN Doc CCPR/C/108/D/2094/2011 (26 July 2013) [9.3–9.4].

   The Australian Human Right Commission has also identified that detention will become arbitrary in cases where a protection visa holders’ visa is cancelled, there is no recourse to regularize themselves, and detention becomes ongoing.

   Detention may also become arbitrary in cases where closed detention is disproportionate or not justified in a person’s particular circumstances, such as where a person does not pose a risk to the community, or an identified risk could be managed in a less restrictive or intrusive way. For example, closed detention may be a disproportionate measure in circumstances where a person has been convicted of a crime but received a non-custodial sentence; or where a person has committed a non-violent offence and does not pose a risk to the safety of others. Alternative ways of managing risk include community detention, curfews, travel restrictions, reporting requirements or sureties.[18]

   [18] ustralian Human Rights Commission Submission To The Joint Standing Committee On Migration, Review processes associated with visa cancellations made on criminal grounds, 27 April 2018 at [96].

   Furthermore, it is necessary to consider the costs to the Australia Commonwealth that such a path would entail.

   We submit the costs for the Applicant’s detention, should the Minister not engage his power, would place an unwarranted and unexpected financial burden on the Australian community ranging between AUD 10 088 187 and AUD 46 105 531.

   These figures are based on the estimated annual costs of onshore detention, consumer price index (‘CPI’) increases, and various life expectancies. Annual costs for a single onshore detainee were averaged in the 2017-18 Supplementary budget estimates to be

   $AUD 346 178 excluding capital expenditures. CPI calculations are based on the 1.9% increase to the March 2018 quarter.[19] Life expectancy scenarios are based on 72 years for males from Sri Lanka,[20] and 75 years for non-aboriginal Australian males.[21]

   [19] Australian Bureau of Statistics, 6401.0 – Consumer Price Index, Australia, Mar 2018 (24 April 2018)

   [20] World Health Organization, Sri Lanka (2018) < Ibid.

   Scenario 1 – $AUD8 832 367

   We submit a cost of over $8.8 million would be incurred if the Applicant was detained in an onshore detention facility for 20 years. The figure of 20 years was based on the assumption that Australia’s non-refoulement obligations no longer apply to the Applicant under the conditions that stability has returned to northern Sri Lanka and an International Treaty Obligation Assessment indicates that a non-refoulement obligation no longer exists in respect of the Applicant. The Applicant would continue to experience a risk greater than the one faced by the general population (Migration Act s36(2B)(c)) even after any return to stability within Sri Lanka. The officers who tortured the Applicant would continue to present a personal threat to the Applicant so long as the perpetrators are alive.

   Scenario 2 - $11 770 052

   We submit a cost of over $11 million would be incurred if the Applicant remains detained until the time of his death where that lifespan is around 72 years. The Applicant dying in detention after spending the majority of his life in onshore detention is based on the assumption that he would not be able to be returned to Sri Lanka. This lifespan is based on life expectancy of males born in Sri Lanka which is similar to the lowest male life expectancies in Australia. If detained in 2019, the Applicant would have entered onshore detention at the age of 38 and would, based on these life expectancies, survive for another 34 years in detention.

   We submit these scenarios are not exhaustive but are indicative of the cost range associated with the Applicant’s indefinite detention.

   These costs are not consistent with community expectations for a person who is of minimal risk to the wider community and who has completed a brief custodial period.

   Any Other Relevant Matter

   Until he was detained, the Applicant was working as [an Occupation] in [a Workplace], [City].

   In mid-2019 the Australian Meat Industry Council (AMIC) released a report into the widespread labour shortage for meat processers. The report noted the following:

   Currently, 63% of meat processors are unable to run at full capacity. The sustainability and viability of one of Australia’s largest regional employer groups, which is also the country’s largest trade exposed manufacturing industry, needs government leadership to build a strengthened regional workforce…

   Currently, there are more than 3,780 job vacancies in the red meat manufacturing industry…

   In the last financial year, 73 processing plants advertised for almost 6,500 new workers, which were filled by approximately 4,600 local Australian workers. However, this has failed to fill or even maintain job vacancies, particularly as Australian local workers stay an average of less than six months in the job…

   Sadly, we see an increasing rate of people that cannot work within our industry due to failing to meet the strict WH&S guidelines set by companies and government regulations on illicit drug use and work…. Worryingly, at least 20% of jobs applicants fail to turn up to mandatory drug testing to meet company and government WH&S regulations in manufacturing and a significant number fail the tests.[22]

   [22] AMIC, The Australian Meat Manufacturing Industry: People, Permanency & Profitability, Labour Discussion Paper, May 2019, available here: low retention rate for Australian local workers indicates that this industry sector is increasingly reliant on regionally-settled migrant workers.

   We note that retention of migrant labour in regional areas is a particular area of concern for Australia’s migration program as the net internal migration (NIM) is positive to the major metropolitan areas and negative to regional areas.[23] This suggests many migrant workers spend only a short period in a regional area before migrating internally to a major metropolitan area.

   In mid-2019, a proposed Commonwealth Joint Standing Committee was established ‘particular consideration to how communities and settlement services can best assist migrants to gain successful employment outcomes in regional Australia.’[24] The overarching purpose of this committee is to increased settlement retention amongst migrant workers.

   We note that the Applicant has consistently worked as [an Occupation] since settling in [City]. There is no evidence to suggest that the Applicant has had his employment prospects adversely affected since his conviction nor that he has ever failed to meet the WH&S requirements for his position.

   Consequentially, migrants settled in a regional area consistently working as meat processers satisfies a number of industry and immigration policy outcomes.

   We submit that it is open to the Tribunal to place some weight on the public benefit the Applicant provides to the labour market as a regionally settled, low skill worker, willing to work long-term as [an Occupation].

   Conclusion on the exercise of discretion

   While the seriousness of the offences committed by the Applicant should not be diminished, we submit they are located on the lower end of the spectrum for charges of that type. Notwithstanding, any residual and mitigated risk posed by the Applicant is vastly outweighed by the risk of harm posed to the Applicant through the risk of refoulment or indefinite detention.

   Numerous factors in the Department guidelines weigh against cancellation, in particular the sui generis hardship that will be faced by the Applicant and the cascade of unavoidable consequences of his cancellation.

   CONCLUSION

   On the basis of the current evidence we invite the Tribunal to exercise the power pursuant to section 415(2)(d) of the Act to set the decision of the Delegate aside and substitute a new decision.

   [23] Australian Bureau of Statistics (ABS), Regional Population Growth, Australia, 2016-17, cat no. 3218.0 (revised, August 2018) available at 17?OpenDocument).

   [24] Joint Standing Committee on Migration, ‘Learning from regional migration success stories’ (Media Release, Department of the House of Representatives, 14 August 2019).

   Tribunal Findings

1. The Tribunal commends the Representative on his submission. It concedes that it will not be necessary to address every contention of the Representative in his submission.

2. The Tribunal accepts that there is no evidence of adverse past or present behaviour by the applicant towards the Department of Home Affairs, and that nobody else is attached to his visa who would receive a consequential visa cancellation if his own visa were cancelled.  There are no extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing. 

3. There is a strong submission before the Tribunal that Australia’s non-refoulement obligations would be breached as a result of the visa cancellation.  The Tribunal places some weight on the submission as to these matters and finds that they weigh against cancellation of the visa.

4. The Tribunal accepts that if the applicant’s visa is cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable for removal from Australia and likely face difficulties in obtaining a new Australian visa in the future.  The Tribunal places some weight on the evidence as to these matters and finds that they weigh against cancellation of the visa. 

5. The Tribunal accepts the applicant’s evidence that he has job opportunities in Australia (in any industry which struggles to find competent and willing employees) upon his release from detention.  Some weight is accorded to this evidence and the Tribunal finds that it weighs against cancellation of the visa. 

6. In the view of the Tribunal, the evidence of the applicant strongly supports him having taken ownership and responsibility for his conduct and for the consequences of his behaviour. He shows significant, and in the view of the Tribunal, genuine and sincere remorse for his conduct, the offences themselves and for their impact on others.

7. The Tribunal must balance the factors in favour of and against the cancellation of the applicant’s visa.  One factor that has been found by the Tribunal to weigh against cancellation is the nature of the applicant’s offending which is a matter of grave concern for the Tribunal, given the fact the offence was committed against a friend who quite likely had an element of trust in the applicant, and occurred after dark and that the applicant cannot remember all of the circumstances of the event.

8. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s Subclass 790 visa.  The nature of the applicant’s offending weighs in favour of the visa cancellation.  The Tribunal carefully considered the Trial Judge’s sentencing remarks (limited though they were), giving the applicant a declared jail term of 11 months suspended after 67 days, as against the potential penalties of up to ten years and life respectively. The Tribunal has carefully considered the witness statements of support. It notes in particular the applicant’s strong work ethic and his strong peer group support. His offending arose in a group setting only and stems exclusively from the environment he found himself in and the excessive use of alcohol by that group. The Tribunal notes that the applicant has no outstanding drug or alcohol abuse treatment needs and has no level of criminal versatility. He has accepted responsibility for his wrong-doing. His brother is supportive of him. It noted that the applicant has strong familial and vocational links with Australia and in particular [City], a broad social network, including participation in the sporting community, and a range of employment opportunities. The Tribunal notes particularly the letter of support from the victim of the assault and his support for the applicant. On balance, therefore, the Tribunal finds that the factors in favour against cancellation of the applicant’s visa outweigh those to the contrary.

9. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

10. The Tribunal has also noted that the applicant has served six months of imprisonment before having accessed Legal Aid to support a bail application, and is somewhat sympathetic to the applicant. The Tribunal observes the chance and opportunity being afforded to the applicant by virtue of the strong family support and excellent representation he has had but nevertheless recommends that in the event the applicant does so reoffend, that the department take immediate measures to cancel the applicant’s visa.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Temporary Protection (Subclass 790) visa.

    Michael Hawkins
    Member

    
    
    

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