2003206 (Refugee) - [2022] AATA 4523

2003206 (Refugee) [2022] AATA 4523 (11 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Navid Koushke Baghi (MARN: 1681603)
CASE NUMBER: 2003206; 2003479

COUNTRY OF REFERENCE:                   Iran
MEMBER:Alison Murphy
DATE:11 October 2022
PLACE OF DECISION:  Melbourne
DECISION IN 2003206:  The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 785 (Temporary Protection) visa.
DECISION IN 2003479:  The Tribunal does not have jurisdiction in this matter.

Statement made on 11 October 2022 at 3:29pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – applicant convicted of multiple offences – religion – conversion to Christianity – serious mental health issues – drug dependence – non-refoulement obligations – indefinite detention – family and community support – decision under review set aside
LEGISLATION
Migration Act 1958, ss 46, 48, 116, 119, 140, 189, 196-199
Migration Regulations 1994, Schedule 2, cl 050.212; r 2.43
CASES
CSV15 v MIBP [2018] FCA 699
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Jayasinghe v MIEA (1997) 76 FCR 301
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
SZASP v MIAC [2007] FCA 771
SZBWJ v MIAC [2008] FMCA 164

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 dependants.
STATEMENT OF DECISION AND REASONS
application for review

Before the Tribunal are two applications for review of a decision dated 4 February 2020 made by a delegate of the Minister for Home Affairs 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)(g) on the basis that a prescribed ground for cancelling the visa applies to the applicant. The prescribed ground in this case is that set out in r 2.43(1)(oa), being that the Minister is satisfied the applicant has been convicted of an offence against a law of the Commonwealth, a State or Territory. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The first review (2003206) was lodged with the Tribunal on 19 February 2020 and the second review (2003479) was lodged on 23 February 2020. Both review applications attach copies of the department’s decision record and notification in respect of the decision to cancel the applicant’s protection visa on 4 February 2020. Both matters were constituted to the same Tribunal member and listed jointly for hearing.
The applicant appeared before the Tribunal on 21 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, [Father A].
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2003206 (Refugee)

Details

AGLC: 2003206 (Refugee) [2022] AATA 4523
Case: [2022] AATA 4523
Decision Date: 11 October 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the temporary protection visa of an Iranian national. The applicant, who arrived in Australia in 2012, was granted a temporary protection visa in 2017. The Department of Home Affairs issued a notice of intention to consider cancellation due to the applicant's convictions for multiple offences. The applicant responded, detailing his struggles with mental health issues, drug dependence, and isolation in Australia, and expressing fear of returning to Iran due to his parents' conversion to Christianity and his own religious interests.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) was made out, and if so, whether the discretion to cancel the visa should be exercised. The prescribed ground under regulation 2.43(1)(oa) of the Migration Regulations 1994 (Cth) applies if a temporary visa holder has been convicted of an offence against Commonwealth, State, or Territory law. The Tribunal also had to consider the applicant's response to the notice of intention to cancel and any other relevant circumstances in exercising its discretion.

The Tribunal found that the ground for cancellation was established, as the applicant had been convicted of offences against Victorian law. However, the cancellation was discretionary. In considering whether to cancel the visa, the Tribunal weighed the seriousness of the applicant's offending against other factors. These factors included the applicant's compelling need to remain in Australia due to his parents being recognised refugees with a well-founded fear of persecution in Iran, and his severe mental health conditions, including depression, anxiety, and PTSD. The Tribunal noted that indefinite detention would cause significant hardship and exacerbate his mental illness, particularly given his dependence on his parents, who could not return to Iran with him.

The Tribunal concluded that the factors weighing against cancellation were significant and outweighed the grounds for cancellation. Accordingly, the Tribunal set aside the decision to cancel the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside in respect of AAT proceeding 2003206 and the Tribunal has no jurisdiction in respect of AAT proceeding 2003479.background The applicant is [an age]-year-old male Iranian national who arrived in Australia [in] September 2012 as an irregular maritime arrival aged [age]. On arrival in Australia he was placed in immigration detention. He was granted a subclass 449 (temporary humanitarian) visa on 29 May 2014 and then a series of bridging visas before being granted the temporary protection visa on 24 June 2017 as a member of the family unit of his father, [Father A]. On 14 October 2019 the Department sent the applicant a Notice of Intention to Consider Cancellation of the temporary protection visa (the s 119 notice). That notice set out that the Department had received information indicating that the applicant had been convicted of a number of offences with the following results: The notice invited the applicant to comment on that information and give reasons why his visa should not be cancelled. The applicant responded to the notice on 29 October 2019. In that response he stated that he arrived in Australia in 2012 with his family. During the 7 years he had been in Australia he had experienced a difficult time in detention after being separated from his relatives and friends and disconnected from his culture and hometown. He went to English language college in 2013 and then to high school, where he felt isolated and anxious. He started using drugs and was sometimes aggressive towards his parents. The applicant stated that he regretted his bad behaviour and hadn’t used drugs for 4 months and was trying to find a job and get involved in the community. He cannot return to Iran because of his parents’ conversion to Christianity and his own interest in Jesus Christ. He sees a psychologist and psychotherapist for depression and fears being returned to detention where he will become more depressed. He has recorded some songs with the assistance of his youth services caseworker and wants to pursue a career in [specified fields]. The applicant attached to his response a number of supporting documents including photographs with family and friends; his educational results and support letters from his parents and a number of persons at the [Church 1]. He also provided a letter from his GP dated 20 October 2019 advising that the applicant suffers from chronic mental health conditions including depression, anxiety, panic attacks and post-traumatic stress disorder for which he was being treating by a psychologist and had been referred to a psychiatrist. On 4 February 2020, the delegate decided to cancel the applicant’s temporary protection visa, finding the ground for cancellation was made out. In concluding that the visa should be cancelled, the delegate noted that he had resided in Australia continuously since September 2012 and that he had travelled to Australia with his family to seek protection.

Evidence

Evidence Before The Court

Following the cancellation of the visa, the applicant was placed in immigration detention for a period before being granted a bridging visa on 31 March 2021. consideration of Claims and evidence Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist?s 116(1)(g) - prescribed ground A visa may be cancelled under s 116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Migration Regulations 1994. In the present case, the ground in reg 2.43(1)(oa) is relevant:(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)). The Notice of Intention to Consider Cancellation of the applicant’s visa given to him under s 119 of the Act (and replicated in the delegate’s decision provided to the Tribunal by the applicant) alleges that on [dates in] December 2018 and [June] 2019 the applicant was convicted of the offences specified above. The delegate’s decision also notes that further charges were pending determination by a court, relating to family violence and related offences that occurred on [a day in] July 2019. There is no dispute that the applicant has been convicted of the offences specified in the notice and the Tribunal finds accordingly. As the applicant is the holder of a temporary visa (other than a bridging visa or a special category visa) and he has been convicted of offences against the laws of the State of Victoria, the prescribed ground applies to the applicant. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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 As the Tribunal has decided that the prescribed ground for cancelling the visa applies to the applicant, it is necessary to consider whether the visa should be cancelled pursuant to s 116(1)(g). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 116. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 119 notice about the non-compliance and have regard to any prescribed circumstances. Currently there are no prescribed matters to which a decision maker must have regard in considering whether to cancel a visa under s 116, but the Department’s policy guidelines ‘General Visa Cancellation Powers (s 109, s 116, s 128, s 134B and s 140)’ provides a list of the matters that should be considered. The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia

Decision

Reasons for decision

The applicant now has a number of supports in the community that he did not have at the time the visa was cancelled. He has a community corrections caseworker who is in contact with his GP and has also suggested programs for him. He has been reviewed regularly by a psychiatrist at [Health Service 2] and his care is in the process of being transferred to [Health Service 4].CONCLUSIONS I consider the applicant’s criminal offending to be serious and long standing, although it appears to have ceased since commencing treatment in July 2022. However I consider that the other factors to which the Tribunal must have regard weigh against cancelling the visa. In particular the Tribunal must also have regard to the very serious consequences to the applicant of the decision to cancel the visa.[6] [6] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 (17 December 2018) (Allsop CJ, Markovic and Steward JJ); 267 FCR 628; Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 Firstly, the Department has assessed the applicant’s parents as refugees with a well-founded fear of persecution if returned to their home country of Iran for reasons of their Christian religion. The applicant was granted the protection visa as a member of his father’s family unit and is not himself the subject of a protection finding for the purposes of s 197C(3). This means that in the absence of the grant of another visa he must be detained and removed from Australia as soon as reasonably practicable. The applicant suffers from a serious mental illness and is currently dependent on family in all facets of his life. The only place to which the applicant has a right of return is Iran and his parents cannot return there to care for him as they have a well-founded fear of persecution in that country. As a consequence the Tribunal considers it is unlikely he will voluntarily return even if he faces indefinite detention in Australia. Nor will Iran accept any attempts to involuntarily return the applicant to that country.[7] As the Act provides that unlawful non-citizens must be kept detained in immigration detention until removal, the potential impact of cancellation is that the applicant may be liable to prolonged or indefinite detention.[7] DFAT DFAT Country Information Report: Iran 14 April 2020 at 5.27 Secondly, ongoing detention will cause significant hardship to the applicant, who lives with a serious and chronic mental illness. [Psychiatrist A] reports that indefinite detention has consistently been linked with high rates of depression, anxiety and PTSD with the harm increasing the longer the detention. She notes that the indefinite nature of detention is particularly damaging and that given the applicant’s predisposition to psychosis he is at risk of relapse and a worsening of his illness. Similarly the Royal Australian and New Zealand College of Psychiatrists identifies people with mental illnesses as a group that should not be detained in immigration detention, noting that harm to well-being accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[8] The serious hardship to the applicant is exacerbated because he will be separated from his parents who are identified by [Psychiatrist A] as the greatest protective factor in terms of his mental illness. [8] M. von Werthern, K. Robjant, Z. Chui, R. Schon, L. Ottisova, C. Mason and C. Katona, The impact of immigration detention on mental health: a systematic review BMC Psychiatry (2018) 18:382; Aamer Sultan and Kevin O’Sullivan Psychological disturbances in asylum seekers held in long term detention: a participant-observer account; The Royal Australian and New Zealand College of Psychiatrists Position Statement 46: The provision of mental health services for asylum seekers and refugees September 2017

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) 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 As the Tribunal has decided that the prescribed ground for cancelling the visa applies to the applicant, it is necessary to consider whether the visa should be cancelled pursuant to s 116(1)(g). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 116. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 119 notice about the non-compliance and have regard to any prescribed circumstances. Currently there are no prescribed matters to which a decision maker must have regard in considering whether to cancel a visa under s 116, but the Department’s policy guidelines ‘General Visa Cancellation Powers (s 109, s 116, s 128, s 134B and s 140)’ provides a list of the matters that should be considered. The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia As noted above, the applicant travelled to Australia by boat with his family in September 2012. He was granted the temporary protection visa on 24 June 2017 as a member of the family unit of his father, [Father A]. While the protection finding in relation to [Father A] does not appear to be subject to a formal written decision record, case notes dated 27 April 2017 indicate that a Departmental delegate assessed him to be a refugee as a Persian Muslim who had converted from Islam to Christianity. The applicant’s immediate family reside in Australia and the department has found his parents have a well-founded fear of persecution if returned to Iran. As detailed below, the applicant is diagnosed with severe mental health conditions that have impacted on his education, employment and social functioning. He is dependent on his family and in particular his father and in these circumstances the Tribunal accepts he has a compelling need to remain in Australia. The Tribunal gives this factor significant weight against the cancellation of the visa.The circumstances in which the ground for cancellation arose It is acknowledged by the applicant and his representative that the applicant has been convicted of a number of offences, including in the period following the cancellation of his visa. All of those offences relate to, or arise out of, family violence incidents between 2016 and 2021. They commenced in 2016 when the applicant was [age] years old and continued until September 2021. For the most part they relate to the applicant’s conduct towards his father, but on occasion his mother and brother. Information provided by Victoria Police indicates that as well as the offending referred to in the s 119 notice, the applicant has been convicted of the following offences: