2006935 (Refugee)

[2022] AATA 1442

2006935 (Refugee) [2022] AATA 1442 (17 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006935

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Alison Murphy

DATE:17 March 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 March 2022 at 10:12am

CATCHWORDS
REFUGEE – cancellation – protection visa – Sri Lanka – applicant convicted of an offence – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam links – protection obligations – severe mental illness – illegal departure – indefinite detention – access to Medicare – decision under review set aside

LEGISLATION
Migration Act 1958, ss 35, 48, 116, 119, 140, 189, 195, 197, 360
Migration Regulations 1994, r 2.43; Schedule 2; Schedule 4, PIC 4013

CASES
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise) visa (SHEV) under s 116 of the Migration Act 1958 (Cth) (the Act).

2. 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 reg 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (the Regulations), being that the Minister is satisfied the applicant has been convicted of an offence against a law of the Commonwealth, or 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.

3. The applicant was represented in relation to the review. In addition to the material on the Departmental file, further submissions and documents were provided to the Tribunal on 7 March 2022.

4. Having reviewed the material before it, the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it pursuant to s 360(2)(a) of the Act. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   BACKGROUND

5. The applicant is [an age]-year-old Sri Lankan national who arrived in Australia [in] September 2012 as an irregular maritime arrival. On 21 February 2013 he was granted a [humanitarian] visa which expired a week later. He was subsequently granted a series of bridging visas until he was granted the SHEV on 7 April 2017.

6. On 26 November 2019, a delegate of the Minister sent the applicant a Notice of Intention to Consider Cancellation of the SHEV (the s 119 notice). That notice set out that the Department had been advised by Victoria Police that [in] October 2019 the applicant was convicted of a number of criminal offences relating to cannabis for which he was sentenced to a period of 134 days’ imprisonment. The notice invited the applicant to comment on that information and give reasons why his visa should not be cancelled.

7. The delegate’s decision records that the notice was sent via registered post to the applicant’s last known address but was returned without being collected. As a result the applicant did not respond to the notice.

8. On 4 February 2020, the delegate decided to cancel the applicant’s SHEV, finding the ground for cancellation was made out. In concluding that the visa should be cancelled, the delegate noted that the applicant had travelled to Australia to seek protection and that cancelling the visa would likely cause him a degree of hardship. The delegate noted that as the applicant had not responded to the notice, there was no information to suggest there were any extenuating circumstances in relation to the applicant’s criminal offending. The delegate recorded that there was no information to suggest the applicant had not complied with the conditions of his visa, nor was there any information suggesting the applicant had been uncooperative with the Department or Departmental staff.

9. The delegate set out the legal consequences of the cancellation of the visa (as they were at the time of the delegate’s decision). It was noted that the applicant had been found to engage Australia’s protection obligations with the result that Australia had non-refoulement obligations. The delegate recorded that if his visa is cancelled, he will become an unlawful non-citizen and liable for detention and removal including to Sri Lanka, although the Minister has a personal and non-compellable power to grant him a visa if he considers it is in the public interest to do so. If the visa is cancelled, the applicant would also be subject to a 3‑year exclusion period as a result of public interest criterion 4013. After considering the available information, the delegate decided to cancel the visa.

10. The Departmental file indicates the notice of decision was sent to the applicant by registered post and returned to sender by Australia Post marked ‘unknown’.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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?

    Section 116(1)(g) – prescribed ground

12. 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 Regulations. 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)).

13. 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 [in] October 2019, the applicant was convicted of one count of possessing cannabis, one count of cultivating cannabis, one count of trafficking cannabis and one count of theft. He was sentenced to a period of 134 days’ imprisonment.

14. However it is apparent that the notice is incorrect in that the offences set out in the notice are those with which the applicant was initially charged, not those of which he was convicted. It does not appear that a criminal record check was obtained by the delegate, rather the delegate relied on email communications with officers of Victoria Police.

15. The Departmental file contains conflicting advice by Victoria Police about the offences of which the applicant was convicted. [In] October 2019 Victoria Police advised that the applicant had been convicted of all four offences. Later on the same date Victoria Police emailed through an amended advice, stating that the applicant had been convicted only of cultivating cannabis and attaching the court’s order in respect of that charge. That changed advice did not find its way into the s 119 notice and in any event it also appears to be only partially correct. The AFP National Police Certificate submitted by the applicant and dated 1 March 2022 indicates that [in] October 2019, the applicant was convicted of one charge of cultivating cannabis and one charge of theft.

16. A statutory declaration from the applicant’s legal representative states that in discussions with the court registrar she was advised that the other charges of trafficking and possessing cannabis were struck out (withdrawn).

17. On the basis of the AFP National Police Certificate and the sworn evidence of the applicant’s legal representative, the Tribunal is satisfied that [in] October 2019 the applicant was convicted of one charge of cultivating cannabis and one charge of theft, all other charges being withdrawn. As the applicant was the holder of a temporary visa at the time he was convicted of the offences against the laws of the State of Victoria, the prescribed ground applies to the applicant.

18. 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

19. 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.

20. 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.

21. As noted above, the applicant did not respond to the s 119 notice. It is apparent from the court documents and submissions to this Tribunal that this was because the notice was sent to the address the applicant had been living at the time of his arrest. As this property was the location at which the illegal cannabis crop was grown and its occupants were arrested and the crop confiscated, the applicant did not return to that property after being released from custody. Therefore he did not receive the s 119 notice and was not aware of the cancellation of the visa until he was advised by Centrelink that his visa had been cancelled and his payments stopped.

    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

22. The applicant travelled to Australia by boat in September 2012 where he sought Australia’s protection. An officer of the Department subsequently assessed him to be a refugee and he was granted the SHEV on 7 April 2017.

23. While the protection finding does not appear to be subject to a formal written decision record, case notes dated 24 January 2017 indicate that a Departmental delegate assessed the applicant had a well-founded fear of persecution for the essential and significant reason of his political opinion on the basis of his imputed links to the Liberation Tigers of Tamil Eelam (the LTTE). The case notes indicates that in making that assessment the delegate accepted that the applicant is a Tamil male from the [named] district; that he was badly injured during a shelling attack in March 2008 suffering extensive scarring and [a permanent disability]; that he was detained at [Camp 1] Internally Displaced Persons camp following the end of the war in 2009 during which time he was repeatedly interrogated on suspicion of being an LTTE combatant due to his injuries; and that he was monitored by Sri Lanka’s CID following his release from [Camp 1].

24. The delegate cited country information indicating that the Sri Lankan state still had an active interest in tracking down former LTTE members, that the applicant would be closely monitored on his return to Sri Lanka and would be subject to the legal consequences of his illegal departure from Sri Lanka, including detention. The delegate considered that enquiries may be made in the applicant’s home town which would reveal his previous interment at [Camp 1] and that there was a real chance he will suffer serious harm during interrogation and detention if returned to Sri Lanka.

25. As a result the applicant is assessed to be a person to whom Australia has protection obligations and he has a compelling need to remain in Australia. I consider this factor weighs significantly against the cancellation of the visa.

    The circumstances in which the ground for cancellation arose

26. The ground for cancellation arose when the applicant was convicted of one charge of cultivating cannabis and one charge of theft [in] October 2019 at [a named] Magistrate’s Court and sentenced to a period of 134 days’ imprisonment for those offences (being time already served).

27. The Victoria Police correspondence indicates that the offending was discovered during an investigation relating to a power bypass and possible cannabis crop growing at an address in [a named town in] Victoria. Upon execution of a warrant, the police located a number of mature cannabis plants and seedlings along with [an amount] of cannabis. The applicant and his co-accused are reported to have been cooperative with police and to have no previous criminal offences. The conviction for theft relates to the theft of electricity from the illegal electrical bypass connection at the property.

28. The applicant suffers from very serious physical injuries and mental health conditions. As set out above, he was badly injured during a shelling attack in March 2008 and medical evidence shows he suffered very severe wounds to his [specified body parts and a permanent disability]. The extent and severity of his wounds have resulted in both emergency and longer-term medical interventions in Sri Lanka and Australia. His GP, [Dr A], reports the impact of his injuries has meant the applicant has been unable to find employment in Australia. Since his visa was cancelled he has been dependent on borrowing money from friends and support from [two welfare agencies], experiencing severe financial stress.

29. As set out in the report [Dr B], psychiatrist, dated 6 March 2022 and the applicant’s statutory declaration dated 4 March 2022, the applicant’s role as a crop-sitter occurred in the context of financial hardship and mental illness. The applicant explains he was living in a share house and receiving Centrelink payments after a long period of trying unsuccessfully to find employment when he met a man called [Mr C] who offered him free accommodation in the crop house if he watered the cannabis plants and put the electricity bill in his name. He was there for 6–7 months before the warrant was executed and he was remanded in custody. [Dr B] reports that the applicant is experiencing post-traumatic stress disorder, major depressive disorder and alcohol use disorder for which he is currently untreated.

    The degree of hardship that may be caused; the mandatory legal consequences to the cancellation decision and Australia’s international obligations

30. In this case the degree of hardship that may be caused by the visa cancellation is extremely high. As set out in [Dr A]’s report, the functional impact of the applicant’s physical injuries has rendered the applicant unable to find ongoing employment in Australia. When his visa was cancelled, he lost access to social security payments and Medicare.

31. He was identified as being at risk of homelessness in March 2020 and that risk materialised in August 2020. He was provided with crisis accommodation by [Agency 1] but experienced a deterioration in his mental health as a result of his homelessness and the impact of the COVID-19 pandemic. In May 2021 he received financial assistance for a private rental tenancy, ongoing support for basic necessities and access to a foodbank. He has since been diagnosed with post-traumatic stress disorder, major depressive disorder and alcohol use disorder for which he is currently untreated. His [Agency 1] caseworker assesses him as highly vulnerable and at imminent risk of homelessness without ongoing assistance from [Agency 1].

32. [Dr B], psychiatrist, reports that the applicant requires treatment including antidepressant medication, psycho-therapeutic interventions and engagement with drug and alcohol services to reduce his anxiety and depressive symptoms and manage his suicidal thoughts and cravings for alcohol. He states that without treatment, the applicant is at high risk of a further deterioration of his mental state and in the absence of a visa, Centrelink payments and stable accommodation, the effectiveness of medication and psychosocial rehabilitation are significantly reduced. If the applicant’s SHEV remains cancelled, he will be unable to access Medicare and will remain untreated.

33. If the applicant’s SHEV remains cancelled, he will be unable to make a further application for a protection visa without the Minister’s intervention.[1] Section 48 further limits the kinds of visas for which persons in the applicant’s position can apply and there is no obvious substantive visa available to the applicant while he is onshore. While s 48 of the Act theoretically allows the applicant to make an application for a partner visa, there is no evidence that he is in a relationship with an Australian citizen or permanent resident that would make him eligible to apply for that visa.

    [1] Sections 48A and 48B of the Act

34. In the absence of the grant of another visa, the applicant will continue to be an unlawful non-citizen subject to detention under s 189 of the Act. The delegate’s decision records that the applicant will be liable for removal to Sri Lanka, irrespective of Australia’s non-refoulement obligations, unless the Minister exercises his discretionary powers to grant him another visa.

35. However there has been a significant change to the law since the delegate’s decision in February 2020 with the insertion of a new s 197C(3). The effect of s 197C(3) in this case is that the applicant cannot be removed from Australia because he is the subject of a protection finding for the purposes of s 197C(3). This arises because he made a valid application for a protection visa on 2 August 2016 (noting that the SHEV is one of the class of visas which are protection visas as set out in s 35A(3A)) and that application was finally determined when a delegate made a ‘protection finding’ in respect of the applicant’s SHEV application on or about 24 January 2017 as evidenced by the Departmental case notes referred to above.

36. In these circumstances s 197C(3) does not require or authorise the applicant’s removal from Australia unless the decision finding that he engages Australia’s protection obligations has been quashed or set aside, the Minister is satisfied the non‑citizen no longer engages protection obligations under the new provision set out in s 197D(2) and that decision is complete within the meaning of s 197D(6), or the non‑citizen requests removal. As none of these circumstances presently apply, the existing protection finding will ensure that the applicant is not removed in breach of those obligations unless and until the Minister makes a determination under s 197D(2) or the applicant requests removal to Sri Lanka.

37. A detainee may apply for a visa after being detained under s 195 of the Act and the Minister may grant a visa under s 195A if he or she thinks it is in the public interest to do so. Such a decision is not reviewable or compellable and would appear unlikely in circumstances where the applicant’s visa has already been cancelled by the delegate of the Minister in the circumstances that arise in this case.

1. The consequence for the applicant is that he is liable to be indefinitely detained with no realistic avenue to regularise his immigration status or depart Australia unless he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution.

2. I accept that detention will cause significant hardship to the applicant. In the opinion of [Dr B], psychiatrist, being placed in detention will increase the severity of the symptoms of his mental health conditions and reduce the effectiveness of treatments. There is also significant amount of psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm. In particular 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 wellbeing accumulates during detention with the risk of worsening mental health increasing the longer the person is held in detention.[2] The serious hardship to the applicant is exacerbated because he is separated from his family in Sri Lanka and cannot return there because of his well-founded fear of persecution.

   [2] 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

3. I consider this factor weighs significantly against the cancellation of the visa.

   The extent of compliance with visa conditions; the visa holder’s past and present behaviour towards the Department and whether there are persons in Australia whose visas would, or may, be cancelled under s 140

4. The delegate’s decision indicates there is no information to suggest that the applicant has not complied with his visa conditions and there is no record of any adverse behaviour towards the Department by the applicant. I consider this factor weighs slightly against the cancellation of the visa.

5. It is not in dispute that there are no persons in Australia whose visas would be cancelled under s 140 and therefore this factor is not relevant to my consideration.

   Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation, including whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations

6. As noted above, the applicant has been assessed as a person to whom Australia has protection obligations under the Refugees Convention and this prevents his involuntary removal from Australia except in the very limited circumstances discussed above.

7. If his visa remains cancelled, the applicant is liable to be detained with no avenue to regularise his immigration status or depart Australia unless a determination is made under s 197D(2) that he is no longer a person in respect of whom a protection finding would be made or he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution. While those potential outcomes are hypothetically possible, nothing in the material before me indicates that they are currently under consideration. Therefore I cannot discount the possibility that the applicant will face indefinite detention if his visa remains cancelled.

8. I consider this factor weighs significantly against the cancellation of the visa.

   CONCLUSIONS

9. The applicant’s criminal offending cannot be lightly dismissed. He acknowledges that he moved into the crop house knowing that he would be looking after the cannabis plants, although he claims not to have known this was a serious criminal offence in Australia. He lived there and looked after those plants for 6–7 months before being arrested by police.

10. However, it is apparent that the offending occurred in the context of his significant physical and mental health conditions leading to sustained financial hardship and these are significant mitigating factors. The Tribunal must also have regard to the very serious consequences to the applicant of the decision to cancel the visa.[3]

    [3] 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

11. I consider that the other factors to which the Tribunal must have regard weigh against cancelling the visa.

12. Firstly, if the applicant’s SHEV remains cancelled, he will be unable to access Medicare and will remain untreated for his significant medical conditions. His war-related physical injuries have prevented him finding ongoing employment and becoming economically self-sufficient. He requires treatment with antidepressant medication, psycho-therapeutic interventions and engagement with drug and alcohol services to reduce his anxiety and depressive symptoms and manage his suicidal thoughts. Without treatment, he is at high risk of a further deterioration of his mental state and in the absence of a visa, Centrelink payments and stable accommodation, the effectiveness of medication and psychosocial rehabilitation are significantly reduced.

13. Secondly, the Department has assessed the applicant as a refugee who has a well-founded fear of persecution if returned to his home country of Sri Lanka for reasons of his Tamil ethnicity and his imputed political opinion. The delegate who assessed the SHEV application  accepted the applicant was detained at the [Camp 1] Internally Displaced Persons camp following the end of the war in 2009. The delegate accepted he was repeatedly interrogated on suspicion of being an LTTE combatant due to his injuries and that he was monitored by Sri Lanka’s CID following his release from [Camp 1]. As a person to whom Australia has non-refoulement obligations, the applicant has a compelling need to stay in Australia.

14. Thirdly, as a consequence of the applicant’s assessment as a refugee, he is the subject of a ‘protection finding’ for the purposes of s 197C(3) which means he cannot be removed from Australia except in very limited circumstances which do not currently apply. The consequence is that if the applicant’s visa remains cancelled, he is liable to be indefinitely detained with no apparent avenue to make a further visa application or to depart Australia unless he elects to voluntarily return to Sri Lanka where he faces a well-founded fear of persecution. Even such a voluntary return would be a breach of Australia’s non-refoulement obligations.

15. Finally, ongoing detention will cause significant hardship to the applicant. In the opinion of [Dr B], psychiatrist, being placed in detention will increase the severity of the symptoms of his mental health conditions and reduce the effectiveness of treatments. [Dr B]’s opinion is consistent with other psychiatric research on the impact of immigration detention on mental health which concludes that asylum seekers and refugees detained in immigration detention consistently demonstrate severe mental health consequences and detention related harm as discussed above

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

    DECISION

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

    Alison Murphy
    Member