2015278 (Refugee)

[2022] AATA 3776

2015278 (Refugee) [2022] AATA 3776 (7 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Besmellah Rezaee

CASE NUMBER:  2015278

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Denis Dragovic

DATE:7 September 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) visa.

Statement made on 07 September 2022 at 1:00pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Afghanistan – ground for cancellation – convicted of an offence – sexual assault – stalking – community corrections order – consideration of discretion – purpose of travel to Australia – Hazara ethnicity – Jafari Shia – Taliban’s ascension to power – degree of hardship – primary breadwinner for family in Afghanistan – severe impacts on applicant and family – mandatory legal consequences – prospect of lengthy or possible indefinite detention – risk of reoffending – genuine remorse – integrity of the migration program – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48A, 116, 196, 197AB, 197C, 197D, 198
Migration Regulations 1994 (Cth), Schedule 2

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 14 October 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 delegate cancelled the visa under s 116(1)(g) Regulation 2.43(oa), which reads:

   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))

3. On the basis that the applicant had been convicted of sexual assault and stalking and sentenced to 200 hours community service, the delegate found that there were grounds for cancellation. In applying their discretion, the delegate found that the reasons for cancelling the visa outweighed the reasons for not cancelling.

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 6 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi 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.

   consideration of Claims and evidence

8. 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?

9. 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 (the Regulations). In the present case, the ground in reg 2.43(oa) is relevant.

10. As noted above, reg 2.43(oa) is triggered if the visa holder has been convicted of an offence. It is not in dispute that the applicant was convicted [in] February 2020 of sexual assault and stalk another person. He was sentenced to serve a community corrections order over a period of 24 months by performing unpaid community work for 200 hours.

11. As the applicant has been convicted, I am satisfied that the ground for cancellation in s 116(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

12. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The applicant is a [age]-year-old Afghan male from Joghori district, Ghazni province Afghanistan. He travelled to Australia as an unauthorised maritime arrival coming ashore [in] August 2012. The applicant held bridging visas until being granted a Safe Haven Enterprise visa on the 24 September 2016, that is the applicant was found to face a real chance of serious harm if he were to return to Afghanistan. The applicant claims to have left Afghanistan because of the risk to his life arising from his ethnicity as a Hazara, his Shia faith and his profile as a returnee from the West.

14. At the hearing he said that he had fled in 2012 because of the Taliban who according to the applicant were persecuting Shias and Hazara. He explained that he owned a [shop] that was supplying the police and army. He believes that because of this he received a warning from the Taliban. Following the warning and the assassination of his [Relative A] who was a police officer, he fled Afghanistan. The applicant said that now that the Taliban are in power, they have openly stated that they don’t recognise the Jafari sect which is the strand of Islam the applicant practices.

15. I note that the Department had found that the applicant faced a real chance of serious harm as a result of his Hazara ethnicity and as such granted him a Safe Haven visa. This is a strong indication that the applicant’s reasons for fleeing the country were genuinely held.

16. Since then, the situation in Afghanistan as a result of the ascension to power of the has worsened. I note that the current country information states:

    DFAT assesses that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. While the level of mistreatment of Hazaras is currently less widespread than was predicted by some sources upon the fall of Kabul, members of the Hazara community have suffered from ISKP terror attacks and Taliban violence, including hundreds of evictions.[1] 

    [1] DFAT Thematic Report Afghanistan Political and Security Developments August 2021 to January 2022 (January 2022) at [3.5]

17. That the situation for Hazara under the Taliban is described as ‘a high risk of harassment and violence’ and that the applicant has an additional profile arising from his [Relative A’s] association with the police and his own past activities supplying the police and army, leads me to give considerable weight for the applicant’s purpose of travel to Australia and his reason for staying in Australia.

    The extent of compliance with visa conditions

18. At the hearing the applicant mentioned that he was continuing to work following the cancellation of his visa. As the applicant was on a Bridging Visa E I found this unusual and asked the representative to provide evidence. Following the hearing the applicant’s BVE grant notice was provided in which it specifically states that the applicant has permission to work.

19. I note that it also has condition 8566 which is ‘must not breach behaviour’ and includes a code of behaviour. There is no indication that the applicant has breached this condition. 

20. There is no evidence before the Tribunal that would indicate that the applicant has not complied with his visa conditions. Nevertheless, this is a basic expectation of all visa holders. For this reason, I place little weight against cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

21. The applicant is the primary breadwinner for his family in Afghanistan. Was his visa to be cancelled the possibilities, as will be discussed in more detail below, are that he is detained in immigration detention, possibly indefinitely, or alternatively the Minister directs that the applicant is placed in ‘community detention.’ Forcible removal remains a possibility either way. Were the applicant to be detained or forcibly removed his ability to support his family would be dramatically hampered.

22. At the hearing the applicant explained that his wife is raising his three children who are [age], [age] and [age]. He said that she is aware that his visa has been cancelled but not of the circumstances that triggered the cancellation. Of the money he earns while in Australia, he sends a portion to his family, which he estimated at $1,000 every 1.5 months. He believes that if he couldn’t send the money they would have to beg. The applicant noted that he earns about $2,500 per month or $31,000 per year and that the money goes on food and rent and that he doesn’t drink alcohol or smoke no cigarettes.

23. According to the International Rescue Committee more than half of the country’s population are facing acute food insecurity, one million children are at risk of the most severe form of malnutrition and 97 percent of the population are expected to be living below the poverty line.[2] Depriving the applicant of a source to support his family will deprive his family with an income and potentially leave them to face the consequences of severe food insecurity and as the applicant surmised, begging on the streets. This will have a severe impact on the applicant as well as his family.

    [2] Six months on from change in power, IRC warns starvation could kill more Afghans than last twenty years of war as 97 per cent of population faces poverty, Press Release, 15 February 2022  >

    Cancelling the applicant’s visa will also limit his ability to provide a pathway out of the hardship and persecution as Hazara that his family faces in Afghanistan. The applicant is waiting for the opportunity to be granted permanent residency so that he can sponsor his family to Australia. Being unable to continue on this pathway will have severe impacts on him and his family.

24. The applicant said that he has been suffering from mental health issues and in the past has been taking medication. He said that this has been exacerbated since the visa cancellation and he believes that giving him some security and stability by way of setting aside the decision will help his mental health. In other words, minimise the hardship he would face as a result of cancellation.  

25. Overall, I place considerable weight against the cancellation of the applicant’s visa for the reasons of the hardship that this will create for the applicant and his family. Independent country information supports the applicant’s claims that his family would face severe hardship were he unable to provide support to his family either through the possibly of the applicant facing a real chance of serious harm as the Department had found during better times were he returned to Afghanistan or through long term and possibly indefinite detention. I note that the applicant sends a substantial portion of his income overseas which further adds to the credibility of the applicant’s fears in the sense that were they unfounded he would not be compelled to send as large a portion of his income. For the applicant, he would face a substantial deterioration in his mental health in part as a result of his own uncertain future but also having to bear the guilt of being unable to provide for his family.

    Circumstances in which ground of the cancellation arose

26. The acts which led the applicant to be convicted and have his visa cancelled are in brief that he followed a woman at around 10pm, approached her, subsequently claiming that he assumed she was a sex worker, and asked her for sex in exchange for $50. Being rebuffed and assuming that the offer was too low he pulled out $100 at which stage the woman walked away. Through this period the applicant is alleged to have inappropriately touched the woman over her clothes on her breasts and crotch. He then held her as she turned to walk away only letting go when his phone rang.

27. At the hearing I explained that I was not here to judge his actions nor to revisit the verdict and sentencing. What I wanted to know was what was going through his mind at the time.

28. He said that he was alone at the time. He said that he went out to get some fresh air and had not been looking for sex. He said that he was upset due to his circumstances of being away from his family and on a visa for 11 years. He said that he lost self-control when he encountered the woman.

29. He repeatedly acknowledged that he had made a mistake.

30. Regarding his loss of self-control. He said that it happened quickly, at the spur of the moment. I pressed the applicant on his future ability to maintain control. The applicant said that if he has stability in his life, he will be able to control himself. I put to him that it is uncertain how the new government will respond to his circumstances as a temporary visa holder for 11 years and that it may take another couple of years for that to be determined before he can begin the process of sponsoring his family to Australia. I asked him how he would be able to deal with the pressure through such a long period.

31. He said that giving him a second chance with his visa will give him hope such that he may be able to bring his family to Australia. He added that he had made a promise that he will control himself if he is given a second chance.

32. I note that the maximum penalty which could have been imposed for each offence under the Crimes Act 1958 (VIC) was 10 years imprisonment whereas the applicant was sentenced to serve a community corrections order over a period of 24 months by performing unpaid community work for 200 hours. This is relevant as it reflects the magistrates consideration of the severity of offending having heard all of the evidence.

33. The applicant’s general practitioner provided a letter dated 31 August 2022 which included the following:

    I also note that Community Correction Services assessed the applicant’s general risk of reoffending as being ‘low’. He was involved in an incident in 2019 where his case was heard in the court. As a result he completed his community work and I understand that he is released from all his legal obligations. He is very remorseful about what has happened which he tells me, was a lapse of judgement. He has been treated for significant mental illness including depression and has seen psychologist and myself for his treatment and has been on medications for a long time. [The applicant] feels sorry for his family and is deeply disappointed in himself because he let them down in their hopes of migrating to Australia due to his actions. He would like to be given a second chance to prove to Australian community and his family that he is a hard working and decent family man and a good member of community.

34. The applicant’s psychologist provided the following insights:

    While it remains unclear why [the applicant] offended in the current manner, it was most certainly a result of seven years of isolation, loneliness, severe depression, lack of intimacy, missing his wife, feeling desperate and uncertain about his future here in Australia or in Afghanistan. [The applicant] has such limited communication skills that is he totally unable to appropriately communicate any requests or questions with anyone and this compounded his seemingly desperate attempts to cajole the victim into pleasing him.

35. I acknowledge that the applicant has limited English skills. He initially attended English language training but as he had only completed informal education when he was young, he found it difficult to learn and so for the past seven years the applicant has been socially isolated due to the language barrier he faces. While this doesn’t mitigate his culpability, it goes some way to explain the circumstances under which the offending occurred.

36. I accept that the applicant did not leave his home with the intent of stalking and sexually assaulting a woman. Instead, I accept that his behaviour was a spur of the moment action that is unacceptable regardless of whether the woman was a sex worker or not. What played in the mind of the applicant at that moment in time is difficult to appraise now, but what he has explained and is suggested by the psychologist is that his actions arose, at least in part, out of his circumstances. This is not to unburden the applicant of responsibility for what he did but rather to contextualise it and find an appropriate weight to put on this factor. I considering the evidence before me, I place limited weight in favour of cancelling the applicants visa for the circumstances surrounding his actions.

    Past and present behaviour of the visa holder towards the department

37. There is no evidence before the Tribunal that would indicate the applicant had acted in any manner towards the Department such that it would be adverse to him in this matter. Nevertheless, this is a basic expectation of all visa holders. For this reason, I place little weight against cancelling the visa.

    Whether there would be consequential cancellations under s 140

38. There are no consequential cancellations.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

39. If the applicant’s visa is cancelled and he exhausts any rights of judicial review and his bridging visa ceases, he will become an unlawful non-citizen. Unless the applicant can regularise his position he faces the prospect of an indeterminate period in detention for the reasons explained below.

40. There is no obvious substantive visa available for the applicant to apply for based upon his circumstances. Relevantly, s 48A of the Act provides that where a protection visa has been refused or cancelled, a non-citizen cannot make a further onshore application for a protection visa unless the Minister lifts the bar and decides it is in the public interest to allow such an application. Section 35A(3) of the Act defines what encompasses a protection visa and includes temporary protection visas such as the one the applicant holds.

41. The Minister may grant a visa, whether or not the applicant has applied for it, under s 195A if he or she thinks it is in the public interest to do so. This is a possibility but the prospects of such an application are unknown and little weight can be placed on such a possibility. Such a decision is not reviewable or compellable.

42. As such the applicant does not have a foreseeable pathway to an alternative visa. Without a visa, s 196 provides that an unlawful non-citizen must be kept detained in immigration detention until removal.

43. Removal, though, carries a risk of refoulement. Section 198 of the Act contains the relevant provisions relating to removal of unlawful non‑citizens. Section 198(1) provides that an unlawful non-citizen must be removed as soon as reasonably practicable if they request in writing to be removed. Even if an unlawful non‑citizen does not request to be removed, they are liable to be removed under s 198 subject to the provisions of the new ss 197C(3) and 197D.

1. In essence, under the new provisions the cancellation of a protection visa does not have the impact of leading to the applicant’s removal. Instead, there are additional interim steps to be taken. Amendments to the removal provisions have added a new process that works to prevent people from being refouled. This is accomplished by way of an additional review to determine if their fears of persecution continue to require Australia’s protection. This review by the Department is appealable to the Tribunal.

2. This process is untested and as such could amount to a lengthy process in detention until an outcome is finalised. As matters currently stand in Afghanistan, it is unlikely that a Shia Hazara with the profile of the applicant will not meet the well-founded fear of persecution threshold. As such the applicant may remain in detention indefinitely.

3. Section 197AB provides that if the Minister thinks it is in the public interest to do so, he or she may make a ‘residence determination’ that a person may reside at a specified place rather than being held in detention. There are guidelines for recommendations to the Minister for non-citizens to be considered under s 197AB as eligible for a residence determination.[3]

   [3] PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power

4. Among the list of circumstances under which cases should ‘generally not be referred’ to the Minister there are none relevant to the applicant.

5. On the other hand, among the profile of cases to be referred to the Minister’s attention there are two possible relevant criteria:

   there are unique or exceptional circumstances;

   I personally request a specified detainee’s case or cohort of people be referred to me to consider exercising my public interest power.

6. The grant of a favourable residency determination is therefore a possibility in the circumstances of this case, but the prospects of such an application are theoretical.

7. As the law stands the applicant is liable to be held in immigration detention for a lengthy period of time and potentially an indefinite period. Even if the applicant is found to have their protection finding stat, the pathway out of detention is dependent upon the applicant’s detention being re-designated to what has become known colloquially as community detention. This is because the new s197C prevents removal but is silent on ongoing detention.

8. For the reason of the applicant’s prospect of lengthy or possible indefinite detention I place considerable weight against cancellation.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

9. It is government policy arising from the wording of international conventions that considerations of international obligations is limited to obligations that can apply to persons within Australia's territory and also to persons within Australia's jurisdiction.

10. The applicant does not have children in Australia. It was not claimed that there are children who would be affected by the cancellation other than the applicant’s children overseas. Their plight has been considered in the above section on hardship.

11. The applicant does not have family in Australia. As such there are no concerns over family unity.

12. The issue of non-refoulement has been addressed above with a finding that the applicant will not be removed and as such the situation does not expose Australia to be in breach of its non-refoulement obligations.

13. For the reason that there are no children involved, that the applicant will not be removed and there are no family unity issues, I find this consideration to be neutral.

    Any other relevant matters

14. I now turn to the purpose of the government’s introduction of reg 2.43(oa) which was elaborated on in the explanatory statement accompanying the bill.

    These amendments to the Migration Regulations are complementary to the Act and provide my department with the necessary legislative and regulatory tools to meet the Government's commitment to protecting the community from the risk of harm by non-citizens, and maintaining the integrity of the Migration programme.

    Australia's temporary visa framework provides non-citizens with the ability to remain in Australia for a particular duration and purpose. Temporary migration provides a range of mutual benefits to Australia and non-citizens by providing, for example: Australian businesses with access to a temporary skilled and unskilled workforce; young people.

    With the ability to work and travel around Australia; and overseas students with the ability to undertake study in Australia. Visas granted under these programmes are done so with the expectation that the visa holder will make a positive contribution to Australian society, respect community values, and obey Australia's laws. These amendments to the Migration Regulations are in that context.

15. I note that the applicant has been convicted of a crime that accrued a sentence of a community corrections order over a period of 24 months by performing unpaid community work for 200 hours 11 months and 7 days.

16. I note that the purpose of reg 2.43(oa) is to protect the community from the risk of harm by non-citizens and to maintain the integrity of the migration program. The nature of the applicant’s offending and his realization of the mistake he made, the evidence provided by medical experts and the community corrections assessment all suggest that the applicant is not a risk of harm to the community.

17. The applicant expressed shame for what he did. Shame plays a powerful role in Afghan culture.[4] The applicant explained how his transgressions are perceived to be shameful which I accept. He has not told his wife or family nor his community in [City 1]. I accept that shame will play a powerful role in the applicant not reoffending.

    [4] >

    The applicant had repeatedly expressed remorse, both in his written statements and at the hearing. I accept that the applicant is genuinely remorseful and that this will also play a role in minimising the applicant’s chance of reoffending.

18. The applicant has not had any prior convictions nor any since. As noted above he has been granted a BVE which has a condition of not breaching character expectations. There is no indication that he has breached this condition.

19. I am satisfied that the applicant’s behaviour was limited to that moment in time. I find that based upon his experiences of the repercussions of such action including the shame, potential for his visa being cancelled and his detention, and the personal feelings of remorse, that he would find the self-control required to manage his frustrations with the system. As such I place some weight against cancelling the applicant’s visa.

20. Regarding the issue of whether setting aside the cancellation will undermine the integrity of the migration program. There are two aspects to this. The integrity of the program is maintained when the public perceives the migration program to have integrity. Alternatively, the integrity of the migration program can be undermined if migrants will be led to believe that there are minimal consequences to their visa status following criminal behaviour and as such the setting aside of a cancellation based upon a conviction may undermine the integrity of the migration program.

21. As to the public perception, this requires some speculation on the part of the Tribunal on what community expectations are of the migration program. I do not believe that the community’s expectations are that someone who is sentenced to a community corrections order undertaking 200 hours of voluntary work should be deported to a country where they will face a real chance of serious harm or potentially face lengthy if not indefinite detention.  For this reason, I place only limited weight in favour of cancellation based upon the risk to public perception.

22. I accept that there is a risk that there will be some chatter within migrant groups of the applicant’s visa being reinstated which may lead to a perception that there are no consequences to their migration status following illegal actions. In this instance, due to the nature of the offending and the limited scope of individuals who are aware of the situation, I place limited weight in favour of cancellation.

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

    decision

24. 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