2014052 (Refugee)

[2023] AATA 995

2014052 (Refugee) [2023] AATA 995 (10 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Galen Jaffurs

CASE NUMBER:  2014052

COUNTRY OF REFERENCE:                   Stateless

MEMBER:Denis Dragovic

DATE:10 February 2023

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) visa.

Statement made on 10 February 2023 at 3:01pm

CATCHWORDS
REFUGEE – cancellation – protection visa – stateless – risk to the Australian community – applicant sentenced to a Youth Supervision Order – intellectual disability – previously subjected to family violence – crime age patterns – adolescent development – power to cancel the visa does not arise – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994, r 2.41

CASES
Gong v MIBP [2016] FCCA 561
Tien v MIMA (1998) 89 FCR 80

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 27 August 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 790 (Safe Haven Enterprise Visa) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is [an age]-year-old ethnic Rohingya who is stateless. He arrived alone in Australia as an unauthorised maritime arrival. At the time he was a minor aged [age]. At the age of [age] he committed rape against another minor and was sentenced without conviction to a Youth Supervision Order.

3. The delegate cancelled the visa under s 116(1)(e)(i) on the basis that the applicant was charged and sentenced without conviction of two counts of rape against a minor alongside other transgressions. As a result, the delegate found that the applicant is or may be a risk to the Australian community.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 22 November 2022 and 13 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages.

6. The applicant was represented in relation to the review.

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

   Mental Health

8. As is detailed further below, the applicant has been assessed at various times with ‘mild intellectual disability’, ‘extremely low range of cognitive ability’ or ‘intellectual disability’. For the purposes of this hearing understanding the applicant’s prior assessments was relevant in the approach taken.

9. Included in the Departmental file was a 2016 assessment by Assessments Australia for the purposes of assisting teachers and parents of students with a disability. In the report the author provides general recommendations for enhancing engagement with the applicant including the following which I adopted at the hearing:

   ·Make sure he is paying attention when starting to speak to him

   ·Check that important instructions are understood

   ·Short meaningful questions

   ·Deal with one issue at a time

   ·When he starts to withdraw or disengages then his capacity has been reached. Take a break.

   ·Provide structure in each session so he knows what it’s about and what happens next

10. Despite the applicant’s impairments I found that throughout both hearings he was engaged and responsive. I note that the assessments were undertaken when he was an adolescent and that he has since matured which has in turn, according to the most recent report from [Agency 1], seen his attention span and ability to engage increase substantially.

    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)(e).

    116. (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i) the health, safety or good order of the Australian community or a segment of the Australian community;

12. 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?

13. A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

14. The expression ‘good order of the Australian community’ is not defined in the Act. Although considering an earlier version of s 116(1)(e), the reasoning in Tien v MIMA (1998) 89 FCR 80 is still relevant. The Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

15. On 16 March 2020, two months after the applicant turned [age], he was provided a copy of the Notice of Intention to Consider Cancellation (NOICC). The NOICC outlined the applicant’s offending:

    1) [In] June 2016, you were spoken to by Victoria Police and charged with the offence of Possess Cannabis. You admitted to the offence, but in the circumstances, Victoria Police did not propose instituting legal proceedings against you. With your consent, you were issued a caution which was officially recorded.

    2) [In] April 2018, you were charged with two counts of rape following an incident that was alleged at the time to have occurred [in] August 2017. Victoria Police alleged that at [Suburb 1] [in] August 2017:

    a) You did intentionally sexually penetrate the victim by introducing your fingers into the victims vagina without her consent and without reasonably believing the victim consented to the penetration; and

    b) You did intentionally sexually penetrate the victim by introducing your penis into the victims vagina without her consent and without reasonably believing the victim consented to the penetration

    [In] September 2018, a psychological assessment was undertaken by a forensic psychologist in relation to your pending criminal justice proceedings. In a report dated [in] October 2018, the forensic psychologist confirmed you did not present with a mental illness and you were fit to stand trial. The psychologist also confirmed that while you were suffering from an intellectual disability at the time of the charges and that you experience general impairments in thinking and reasoning relative to your age peers, your impairment was not significant enough to compromise your ability to understand that sexual assault is wrong. Consequently, you did not qualify for a defence of mental impairment.

    The psychologist noted in the report you denied raping the victim, stating the victim had been smoking cannabis and initiated sexual contact with you. Victoria Police however advised the Department [in] April 2019, that you had provided and smoked cannabis with the [age] year old indigenous victim whist inside the garage of your residential house before suggesting sex.

    When the victim refused you grabbed her and held her down, removed her clothing and tried forcing oral sex. The victim again refused and struggled so you raped her vaginally whilst moving her into different positions. You then forced her to sit with you at the front of the house before allowing her to [leave].

    [In] October 2018 you plead guilty to both charges of rape and [in] December 2018 in [Court 1], you were sentenced without conviction to a Youth Supervision Order for a [period] to [specified date]

    All core Youth Supervision Order conditions were applied and the following special conditions were also applied to the order:

    - To be assessed for and if suitable, to complete the MAPPS program or other offence specific program of counselling and treatment

    - To comply with your disability support plan

    - To be assessed for psychological counselling and if suitable, to engage in that counselling

    - To be referred for appropriate training / skills education

    3) [In] April 2018, you were spoken to by Victoria Police and charged with the offence of Unlawful Assault. It was alleged you grabbed a female staff member at [Agency 2] and threw her to the ground before brandishing a knife at the victim and holding it to her stating “Never tell me what to do again”. You admitted to the offence but Victoria Police did not propose instituting legal proceedings against you. With our consent, you were issued a caution which was officially recorded.

16. The sentencing remarks in the October 2018 case were not available in the Departmental file. Despite efforts to obtain they were not available to the Tribunal. I can only presume that the basis of the rape charge leading to a youth supervision order without any custodial sentence in a youth justice facility was considered carefully by the sentencing judge. For the same reasons, the above information regarding the applicant’s offending which was extracted from the NOICC under 2(a) and (b) must be treated as untested allegations. 

17. On 27 August 2020 the Department made the decision to cancel the applicant’s visa.

18. The applicant applied for review at the Tribunal.

19. In considering whether the ground for cancellation is made out I note submissions made by the representative under the following headings:

    a.The applicant was a minor at the time of the offending

    b.The applicant was subject to family violence while in Australia and in Australian government care

    c.The applicant was identified as having an intellectual disability

    d.The applicant has had a traumatic journey to Australia

20. These matters are relevant in considering whether there are grounds for cancellations. This is not because any mitigating circumstances may lead to the applicant’s offending being viewed in a more forgiving light, but rather the test under s 116(1)(e) is a forward-looking test for which the applicant’s past may inform how the applicant will act in the future.

    Minor at the time of offending

21. In considering whether the applicant is or may be a risk to the Australian community now and into the future it is important to consider his emotional, moral and psychological development from [an age]-year-old when he first offended to the [age]-year-old that he is now.

22. Relevant to this is a portion of the submission made by the applicant’s representative which I extract below:

    Furthermore, at the time of his offending, [the applicant] was a minor and, in our submission, his offending and sentences should be viewed in light of Australia’s juvenile justice practices. It is recognised that children are developmentally different from adults and their behaviour is considered more malleable. Australia’s juvenile justice systems reflect this critical difference and, as such, is focused on rehabilitation, not punishment. In this regard, we refer to research conducted by the Australian Institute of Criminology:

    While a substantial proportion of crime is perpetuated by juveniles, most juveniles will ‘grow out’ of offending and adopt law-abiding lifestyles as they mature…

    [R]ates of offending usually peak in late adolescence and decline in early adulthood. Although the concept of the age-crime curve has been the subject of much debate, critique and research since its emergence, the relationship between age and crime is nonetheless ‘one of the most generally accepted tenets of criminology’…

    Juveniles are more likely than adults to come to the attention of police, for a variety of reasons.

    Research on adolescent brain development demonstrates that the second decade of life is a period of rapid change, particularly in the areas of the brain associated with response inhibition, the calibration of risks and rewards and the regulation of emotions…

    Some of the key characteristics of Australia’s juvenile justice systems (including a focus on welfare-oriented measures, the use of detention as a last resort, naming prohibitions and measures to address juveniles’ criminogenic needs) have been developed in recognition of these important differences between adult and juvenile offenders.

23. In reviewing the original article from which these paragraphs were extracted I note some other relevant findings:

    Research on adolescent brain development demonstrates that the second decade of life is a period of rapid change, particularly in the areas of the brain associated with response inhibition, the calibration of risks and rewards and the regulation of emotions (Steinberg 2005). Two key findings have emerged from this body of research that highlight differences between juvenile and adult offenders. First, these changes often occur before juveniles develop competence in decision making:

    Changes in arousal and motivation brought on by pubertal maturation precede the development of regulatory competence in a manner that creates a disjunction between the adolescent’s affective experience and his or her ability to regulate arousal and motivation (Steinberg 2005: 69–70).

    This disjuncture, it has been argued, is akin to ‘starting an engine without yet having a skilled driver behind the wheel’ (Steinberg 2005: 70; see also Romer & Hennessy 2007).

24. The article from which the above sections are extracted appeared in a credible journal, was peer reviewed and is included in the Children’s Court of NSW Research Handbook and as such I place considerable weight on its findings.

25. Noting that the key issue is whether the applicant has matured such that he has grown out of the offending of the past I note the submission from [Agency 1] which states:

    [The applicant] presents markedly differently now to when he was first referred to [Agency 1] in 2014 as an adolescent. This change was also apparent to me when I had contact with [the applicant] in 2020. In all my contact with [the applicant] in his schooling years and afterwards, he has always been respectful and appropriate in his behavior towards me and other staff/service providers who were present. In earlier years, however, [the applicant] presented with a short attention span and was emotionally dysregulated and very reactive.

    …

    Currently (as observed in a session in November) [the applicant] appears and behaves with more maturity.

    …

    He currently presents as more mature, more focused on his responsibilities as an adult of working and paying for his daily living costs, thinking about his future and wanting to support his family overseas, as well as staying connected to his Muslim faith, his cultural traditions and his community.

26. I also engaged with the applicant at the hearing on how he lives his life with a particular focus on indicators of maturity and an adult outlook towards life. To do this I borrowed from a highly cited academic article Psychosocial (im)maturity from adolescence to early adulthood: Distinguishing between adolescence-limited and persisting antisocial behavior.[1] The researchers in this paper reinforce the view found in the earlier mentioned paper that while ‘a small number of youths persist in antisocial behavior across this developmental period, the vast majority of antisocial adolescents desist from criminal behavior as they enter adulthood.’ The article posits that ‘increases in psychosocial maturity underlie adolescent-limited youths' desistance from antisocial behavior.’ The article notes that ‘psychosocial maturity is conceptualized as consisting of three separate components: temperance, perspective, and responsibility.’ In engaging with the applicant at the hearing I framed my questions around these components as measures of psychosocial maturity.

    [1] Monahan, K., Steinberg, L., Cauffman, E., & Mulvey, E. (2013). Psychosocial (im)maturity from adolescence to early adulthood: Distinguishing between adolescence-limited and persisting antisocial behavior. Development and Psychopathology, 25(4pt1), 1093-1105

27. I asked the applicant whether he has had situations where his friends have acted in ways that have broken the law and what did he do. The applicant said that he hadn’t been in such a situation as his friends are not that type. He said that if such a situation arose he would not join his friends.

28. The applicant does not have any debts. He used to work in the [Occupation 1] business when he had work rights. He said that he enjoys the work. His role includes [specified duties]. He intends to return to [Occupation 1] work if his visa cancellation is set aside. He said at the hearing that there are many people from Rakhine state who work in the [Occupation 1] industry and that there is a lot of work available.

29. In a post hearing submission, the applicant provided a letter from [Employer 1], the manager of a [related] business. He confirmed in his statement that were the applicant to obtain a visa that allowed him to work that he would hire him with longer hours. [Employer 1’s] submission also noted that he has known the applicant for a ‘long time’ and that, ‘He has always been a nice kid and is well-known in the area. He always listens to people and I have never known him to have any issues with others.’

30. [Mr A], a friend who detailed his friendship with the applicant including that they play sport together, that they meet after hours socially and that they cross paths at the mosque. [Mr A] wrote in a submission that the applicant ‘is a good person and a good member of our community.’

31. A submission was received from the applicant’s host family with whom he has lived with for over two years. A [Mr B] writes:

    He, my wife, my young daughter and I all live together in [Suburb 2]. He is a good person and gets on with my family well as well as helping out around the house. He is a fine person to live with and both my wife and myself both look after him.

    I have known [the applicant] for a long time, since approximately 2014. I know all about his past.

    We have never had any issues at all with [the applicant]. He engages with people well and is polite. I would describe him as a good person. He has a lot of support from our community.

    [The applicant] and I are both part of the same Rohingya community in [Suburb 2] and [Suburb 1]. We know many of the same people and see each other away from our house. He has friends in the community and many people know him. He used to be very involved playing [sport 1] but less so now.

    He works as [an Occupation 1] and goes regularly. He also attends Mosque every Friday. Our community has a number of Mosques, one in [Suburb 3] and [Suburb 2]. He goes to various ones but he is religious and consistent in his attendance.

32. With regards to the applicants interests outside of work he gave evidence that he spends his time playing [sport 1] with community teams, [sport 2] with friends and [sport 3] with a team in [Suburb 4]. Written submissions by the applicant’s friends and work colleagues attest to the veracity of these claims.

1. The applicant said that he has not been involved in any fights. He said that he does get angry with friends from time to time. When asked how he deals with the anger he said that he tries to change his anger into water so that he can calm down. I put to him that a teacher from his former school said that he was quick to anger. He said that was a long time ago when he was young.

2. I put to him that the police became involved in a situation in which he waved a knife at a female youth worker in 2018. He said that he can’t recall such an event. I put to him that I was concerned that he could not remember an incident where he threatened someone with a knife. He recalled another incident that led to an argument with a man without a knife being involved.

3. I asked about his family’s knowledge of his situation. He explained that they continue to be in Burma, and they are aware of his troubles. As they were asking for financial support, he had to tell them that he has work restrictions and explained the situation he is in. Regarding the rape, he said that he told them and that he explained that it was a mistake. Their response was that he should not do it again.

4. At the hearing the applicant claimed that he stopped using drugs a long time ago suggesting that it was some six years ago. I noted that in the psychologist’s report prepared for his rape case it is recorded that he told the psychologist that he never used drugs, yet it was only a few months prior to his session with the psychologist that he was allegedly using drugs when he was with the girl that he raped. The applicant acknowledged that at the time he was with the woman he had marijuana. I asked why he would tell the psychologist that he hasn’t used, he said that he couldn’t recall telling him that.

5. I asked about the applicant’s use of drugs and any warnings he may have received. He said that the police had spoken to him about the possession of cannabis in 2015. I asked why he didn’t acknowledge this when I asked earlier in the hearing about his history of engagement with the police, he said that he misunderstood the earlier question. I accept this explanation as he had volunteered the information of his own accord.

6. I asked at what stage did he realize that he could be sent back to Myanmar. He said that he didn’t know the law and was young at the time. He said that now he understands some of the law. He explained that he will not offend again.

7. The applicant has returned to his faith. He wrote in his latest submission ‘My religion teaches me everything, it tells me to do positive things, it tells me how to find peace. My religion helps me figure out right from wrong and to gives me values.’ I asked when he learned of these aspects of his faith. He said that his parents had taught him those beliefs. He acknowledged that he knew before even when he had offended but said that when he was young, he didn’t have a good understanding of his religion but now he has a greater understanding. As a part of this greater understanding he said that he understands the actions that he has done before were big sins and that he understands there to be consequences for sinning.

8. Regarding the applicant’s journey to Australia, I noted that it appeared to be difficult. I asked what impact he thought it had on his life. He responded that it made him a stronger person and that he realizes that there are laws in Australia and that there are consequences to when they are broken.

9. The applicant expressed an ambition to return to full time work so that he can help support his family in Burma. He said that his family aren’t eating properly. He said that they keep moving from one village to another and some have moved to a camp while others are in hiding. He said that they move when the army comes but return when they go away.

10. Based upon the considerable evidence regarding the applicant’s maturity and changed perspectives including substantial research showing how the adolescent brain develops and its impact on the likelihood of youth offending transitioning to adult offending, I place considerable weight against finding there being a ground to cancel the applicant’s visa.

    The applicant was subject to family violence while in Australia and in Australian government care

11. I noted to the applicant that his representative wrote in his submission that he was the subject of family violence while in Australia and asked for him to describe it. He said that the relative he was staying with had an argument with another family member and that the government decided to move him out in 2013.

12. I accept that this occurred as claimed but based upon the applicant’s minimal emphasis on this factor either through his written submissions or at the hearing and noting the nature of it and the length of time that has passed, I place very limited weight on the applicant’s witnessing of this argument as a reason to find that there are no grounds upon which the visa should be cancelled.

    The applicant was identified as having an intellectual disability

13. In a summary of the applicant’s functional assessments the [Agency 1] Counsellor, [named], wrote:

    In August 2014 (at the age of [age]) [the applicant] was assessed by a psychologist [Ms C]. Results showed that [the applicant] was functioning within the extremely low range of cognitive ability. He qualified and received funding through the Program for Children with Disabilities (Intellectual Disabilities). In September 2016 (at the age of [age]) [the applicant] was referred by his school [named] for another cognitive assessment to determine his ongoing eligibility for consideration for the Program for Students with Disabilities under the category of Intellectual Disability. The examining psychologist [Ms D] concluded that [the applicant] presents with a mild intellectual disability. [Ms D]’s assessment results were consistent with previous assessments of intellectual functioning which diagnosed an intellectual disability.

14. Despite this intellectual disability I note that in the psychological review to determine whether the applicant is fit to stand trial, the report by [Dr E], a forensic psychologist, states that the applicant does not have a ‘mental illness but rather impairment and intellectual disability combined with cultural context issues.’ He adds that ‘[the applicant’s] disability was not severe enough to compromise his ability to understand the wrongfulness of sexual assault…He understood that forcing sexual intercourse was wrongful behaviour’

15. As [Dr E] is a specialist forensic psychologist who prepared a report specifically for the purposes of assessing the applicant in the context of his offending, I place greater weight on this evidence than the tangentially relevant assessments arising from his learning needs.

16. Although [Dr E] does not assess the applicant’s future risk, I place significant weight on his finding that he was aware of the wrongfulness of sexual assault and that any learning disability he may have had would not have impacted his ability ‘to understand that forcing sexual intercourse was wrongful behaviour’. This finding can cut two ways. On the one hand it may imply that as the applicant knew what he was doing was wrong and yet proceeded, may suggest that the applicant is unable to control his impulses and may in the future offend again. Alternatively, that the applicant is aware of the wrongfulness of sexual assault and has matured since the offending, including completing rehabilitation suggests that he may be able to better manage his actions in the future. In this instance, I favour the latter understanding. The evidence when considered overall suggests that since his offending the applicant has matured and lived a mature life such that any lingering intellectual impairment carries will make not impact on his ability to distinguish between right and wrong. For this reason, I place no weight on the applicant’s prior learning disabilities as being factors in determining whether there are grounds for cancellation.

    The applicant has had a traumatic journey to Australia

17. The applicant travelled to Australia by boat at the age of [age] years old as an unaccompanied minor. The [Agency 1] counsellor opines in her written submission:

    I believe that [the applicant’s] refugee trauma history and very difficult experiences from a young age, his settlement in Australia as an unaccompanied minor with no parental care or guidance, as well as his mild intellectual disability, had contributed to his offending behavior (and subsequent cancellation of his SHEV) which occurred when he was a minor.

18. While the applicant’s challenging journey to Australia may have impacted his behaviour when he was a minor, over ten years separate the time when he arrived to Australia and the present. The question before this Tribunal is whether he poses a risk to the community into the future. In addition, while I accept that his traumatic journey may have some causal effect on his offending, the question before me is not to determine whether there are any compassionate factors but rather, simply, whether he poses a risk to the community. As such any traumatic experiences and their causation of any offending as the counsellor has opined would weigh against the applicant. Due to the distance of time since his arrival and his ability to integrate into the community since he left school and became independent, I place little weight on his traumatic journey, but what weight there is weighs in favour of finding that there are grounds for cancelling the applicant’s visa.

    Findings

19. There are multiple factors arising from the evidence before me that act in a manner that would constrain any criminal impulses. These include the applicant finding a place in his community, maturing out of adolescence and into adulthood, holding a job and future career prospects, engagement with various professional support services and awareness of the consequences of future offending as a result of his journey through the visa cancellation process. Arising from all of these factors, the circumstances of the applicant suggest that his past offending is not an indicator of his future risk of re-offending. In other words, there is no indication that his past single offence from 7 years ago may be an indicator of a pattern of offending.

20. I note that the opinion of the Intensive Support Worker from [Agency 3] who has worked with the applicant since December 2019 was that ‘During my engagement with [the applicant], I did not believe he posed a risk of further offending in the community, and he successfully completed his Youth Justice Order, abiding by the conditions completed all treatment programs.’

21. Taking all of the supporting statements, oral evidence, written submissions and research into consideration I am not satisfied that the ground for cancellation in s 116(1)(e)(i) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

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

    Denis Dragovic
    Deputy President