2302567 (Migration)
[2023] AATA 1946
•7 March 2023
2302567 (Migration) [2023] AATA 1946 (7 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Eric Zhang
CASE NUMBER: 2302567
DEPUTY PRESIDENT: Antoinette Younes
DATE:7 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Statement made on 07 March 2023 at 12:34pm
CATCHWORDS
MIGRATION – cancellation – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – applicant convicted of an offence and imprisoned – relationship with an Australian citizen – financial hardship – mental health issues – indefinite detention – non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 36, 116, 140, 189, 198, 359, 499; Ministerial Direction 63
Migration Regulations 1994, Schedule 8, Condition 8564; rr 1.12, 2.43CASES
ACH15 v MIBP [2015] FCCA 1250
Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
CGG15 v MIBP [2016] FCCA 219
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
R v Budiman (1998) 102 A Crim R 411
WKMZ v MICMSMA [2021] FCAFC 55Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision dated 14 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 050 (Bridging (General)) 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 the applicant was charged with drug-related offences. 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 applicant appeared before the Tribunal on 2 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, [Partner A]. The Tribunal hearing was conducted with the assistance of an interpreter.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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?
Section 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 (the Regulations).
In the present case, ground in reg 2.43(1)(p)(ii) is relevant.
Regulation 2.43
Grounds for cancellation of visa (Act, s 116)
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
….
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa that the Minister is satisfied that the holder:
…
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.
In support of the application for review, the applicant provided to the Tribunal parts of the delegate’s decision record which indicate that [in] November 2017, the Department received information from the NSW Police that the applicant had been charged with:
·Importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth) Law Part Code: 58454; and
·Attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.5(1), by virtue of subsection 11.1(1) of the Criminal Code (Cth) Law Part Code: 41445/58468.
The Departmental file contains a full copy of the delegate’s decision record, which shows that in response to the Notice of Intention to Consider Cancellation (NOICC), the applicant stated that he was not guilty of the charges and that he had not yet been convicted. He made submissions that if forced to return to Iran, he would be executed, that he would have no one to support him, his mother is unwell and his father is unable to work, and that his brother went to [Country 1] due to debt.
Material provided to the Tribunal
The applicant provided to the Tribunal submissions by his representative, and copies of documents including:
·Applicant’s Statutory Declaration dated 1 March 2023, setting out his background, the negative impacts of performing compulsory military service in Iran (e.g. finding human bones and skeletons), the intimate relationship he had with a female in Iran which caused him to flee to avoid harm, sending money to his family to provide financial support, his lack of knowledge concerning the drug importation (he did not know that drugs were being imported), his struggle with alcohol misuse, his Christian faith, the courses (copies of certificates attached) he has undertaken, and the distress he suffered as a result of a recent suicide of [a] detainee.
·Statement of Facts relating to the offence of Importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth).
·Crown Submissions on Sentence, dated [in] May 2019, concluding that “…having regard to the objective seriousness of the offender’s conduct, the need for general deterrence and comparable cases, the only appropriate sentence is a significant period of full-time imprisonment…”.[1]
[1] Crown Submissions on Sentence dated [in] May 2019, para 63.
·[Court 1] sentencing outcome and Advice of Court result, showing that the applicant was convicted of the offence of Importation of a Commercial quantity of an unlawfully imported border controlled drug and that he received a sentence of eight years, commencing [in] October 2017 and expiring [in] October 2025. The sentence includes a non-parole period of five years commencing [in] October 2017 and expiring [in] October 2022, and a balance of the term of three years imprisonment commencing [in] October 2022 and expiring [in] October 2025.
·Psychological Report of [Psychologist A] to the Court, dated 9 May 2019, referring to, among other things, the applicant’s clinical assessment of Moderate depression, and Normal scores on the anxiety and stress subscales. Relevantly, the psychologist noted that the applicant presents a low risk of similar re-offending, and expressed concerns about ongoing incarceration, which is likely to exacerbate the applicant’s “social isolation, and the depressive symptoms he is experiencing”.[2]
[2] Psychological Report of [Psychologist A] dated 9 May 2019, p7.
·Statement of [Sister A] (applicant’s [sister]) to the Court dated 13 May 2019, referring among other things, to the applicant’s mother having a heart attack upon hearing about the applicant’s arrest, and to the family’s good name in Iran.
·Statement of [Cousin A] (applicant’s cousin) to the Court dated 13 May 2019, referring among other things to the applicant sending money to his family in Iran.
·Statement of the applicant to the Court providing a summary of his background. The applicant referred to him never using drugs and his negative views about drug use.
·Certificate of Baptism, showing the applicant’s baptism date [in] 2021 at [Prison 1].
·Statement of [name] [Prison 1’s] catholic chaplain to the Court, dated 23 February 2022, referring among other things, to the applicant’s good work ethic.
·Statement of [name] (applicant’s former employer) to the Court dated 22 February 2022 May 2019, referring among other things to the applicant as reliable, punctual and a hardworking employee.
·Statutory Declaration dated 28 February 2023 from [Partner A], among other things, referring to the applicant being her partner and that they commenced an intimate relationship towards the end of 2020. She expressed her support for the applicant and willingness to provide financial assistance. She attached copies of her [Bank 1] account.
·Statement dated 1 March 2022 from [Partner A] referring to the applicant being her partner and her willingness to provide him with support including financial support.
·Statutory Declaration of [name] (former work colleague) dated 1 March 2022, expressing willingness to assist the applicant ([Bank 1] account details attached).
·Statutory Declaration of [name] (former work supervisor of the applicant) dated 28 February 2023, offering assistance to the applicant including in finding work.
·Statement of [name] (former work colleague of the applicant), dated 28 February 2023, offering assistance to the applicant and support in finding employment.
·Case Notes Report from NSW Department of Corrective Services from May 2019 to May 2022, referring to the applicant’s compliance with correctional centre routines, positive conduct and behaviour during his incarceration.
·Multiple publications relating to the adverse impacts on detainees.
·Determination of parole applications for Robert Hughes (convicted child sex offender), and Fiona Barbieri (convicted of manslaughter of Det. Ins. Bryson Anderson).[3]
[3] These are unrelated matters.
The applicant does not dispute that the ground for cancellation arises. He is, however, asking the Tribunal to exercise discretion in deciding whether the visa should be cancelled.
As noted above, at the time of cancellation, the applicant was charged with two offences, namely importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth) Law Part Code: 58454, and attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.5(1), by virtue of subsection 11.1(1) of the Criminal Code (Cth) Law Part Code: 41445/58468. In the hearing, the applicant advised the Tribunal that he pleaded guilty to the first offence, and that the second charge was dropped.
The Tribunal advised the applicant that the Tribunal must accept the Court’s verdict and that it is not the role of the Tribunal to reach different conclusions to those reached by the Court. The Tribunal noted that the offence is a serious offence and that it is likely that the Tribunal would find that the ground for cancellation exists.
On the evidence, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g), exists in that the applicant has been charged with an offence under Commonwealth laws, as contemplated by reg 2.43(1)(p)(ii).
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
In considering whether a Bridging E visa should be cancelled on the basis of the prescribed grounds in reg 2.43(1)(p) or (q) the Tribunal must comply with Direction No.63, Bridging E visas - Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q), made under s 499 of the Act. This Direction requires the Tribunal to take into account specified primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the Bridging E visa should be cancelled.
The Direction states that primary considerations should generally be given greater weight than secondary considerations. One primary consideration may outweigh the other primary consideration and information from independent and authoritative sources should generally be given greater weight than information from other sources.
The primary considerations are:
The Government’s view that the prescribed grounds for cancellation at reg 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation.
The applicant was charged and is now convicted of importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium. The applicant accepts that this is a serious offence. He accepts that there is an adverse impact of illicit drugs on the Australian community. He expressed remorse and apologised for his unlawful conduct. He reiterated that he was not aware of the nature of the imported item.
The Tribunal observes that in the Crown Submissions on Sentence provided to the Tribunal, it is noted that the applicant “…imported [amount] grams of opium. Under the Criminal Code Regulations 2002, the marketable quantity threshold for opium is 20 grams and the commercial quantity threshold is 20,000 grams. The amount of drug imported by the offender was approximately [amount] times the commercial quantity…The offender knew the importation involved a large piece of machinery and knew the size and approximate weight of the machinery. Whilst there is no evidence he knew the exact amount of drug to be imported it must be inferred that he knew it was a substantial importation given the size of the machinery it was being smuggled in…The Crown concedes that the offender was reckless as to the presence of a border controlled drug in the consignment and he did not have specific knowledge of which border controlled drug was being imported or the amount…”.[4]
[4] Crown Submissions on Sentence dated [in] May 2019, paras 18, 20, and 21.
Citing R v Budiman,[5] the Crown submitted that the superior Courts have “…repeatedly stated that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles. It is a well-established sentencing principle that persons who participate in the illicit drug trade, at any level, should expect and receive, heavy penalties…the Offender was a trusted intermediary who performed a critical role. The role the offender performed was a significant and essential one in the importation of the drugs into Australia...”.[6]
[5] R v Budiman (1998) 102 A Crim R 411.
[6] Crown Submissions on Sentence dated [in] May 2019, paras 11-12.
In submissions to the Tribunal, the representative argued that
…the process of construing the Direction is no different to that to be applied in respect of any other written document”: ACH15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 1250 (ACH15) at [18]. Thus, paragraph 6.1 is to be construed “by reference to the language of the instrument viewed as a whole”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] (McHugh, Gummow, Kirby and Hayne JJ) applying Cooper Brookes (Wollongong) Pty Ltd v FederalCommissioner of Taxation (1981) 147 CLR 297 at 320 (Mason and Wilson JJ).
It follows that the proper construction and application of paragraph 6.1 requires reconciliation with principle 4.3(6) of the Direction which involves taking into account the particular circumstances of the individual. The spirit of this principle has long been recognised by administrative-decision makers who appreciate “the very important role of the Tribunal in ensuring that individual justice is done”: Robey v Civil Aviation Safety Authority [2021] AATA 854 at [28]; Rent to Own (Aust) Pty Ltd and Australian Securities and Investment Commission [2011] AATA 689 at [41]-[44].
It should also be noted that the word “rigorously” as used in paragraph 6.1 “is addressed solely to the question of whether to enter into consideration of cancelling the visa”: ACH15 v Minister for Immigration & Anor [2015] FCCA 1250 at [28]. It would be a constructive failure to exercise jurisdiction if this Tribunal were to proceed on the view that the power “to cancel should be exercised rigorously, that is strictly”: ACH15 at [31]. The Tribunal’s exercise of the discretion must take into account the Australian Government’s view that the grounds for cancellation should be applied, rigorously, as part of the matters to be considered, rather than simply to follow that view: 2212473 (Migration) [2022] AATA 3343 applying ACH15 at [33].[7]
[7] Submissions of 1 March 2023, paras 5-6.
The Tribunal agrees with the submissions that rigorously does not mean strictly. The Tribunal’s task is to weigh up all the relevant factors, particularly those in Direction No.63. The Tribunal must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow the view.[8]
[8] ACH15 v MIBP [2015] FCCA 1250 at [33]. See also obiter comments in CGG15 v MIBP [2016] FCCA 219 at [32] on the need to engage with the government’s view in cl 6.1.
The Tribunal considers drug offences to be serious and this is reflected in the fact that the applicant received an eight-year term of imprisonment, with a non-parole period of five years. The Tribunal appreciates that the term is not the maximum term that could have been imposed by the Court, it is nevertheless a substantial sentence.
The Tribunal gives this consideration significant weight in favour of cancellation.
The best interests of any children under the age of 18 in Australia who would be affected by the cancellation.
The applicant confirmed that he does not have any children and there is no evidence before the Tribunal that any children would be impacted.
The Tribunal gives this consideration neutral weight.
The secondary considerations are:
The impact of a decision to cancel the visa on the family unit.
In submissions to the Tribunal, the representative indicated that the cancellation would not “result in separation of a family unit. This consideration is irrelevant to the instant proceedings”.[9]
[9] Submissions of 1 March 2023, para 7.
The applicant gave evidence that his parents and siblings are not in Australia; his parents and [number] of his siblings are in Iran, and one of his siblings is in [Country 1]. He has a cousin in Australia. He gave evidence that he has never been married, or has any children and that since 2020, he has been in a relationship with [Partner A].
As the definition of a family unit includes a spouse or de facto partner,[10] the Tribunal explored with the applicant his relationship with [Partner A], to whom he refers as ‘girlfriend’.[11] [Partner A] is an Australian citizen and she is [age] years of age. She provided a Statement and a Statutory Declaration in support of the applicant, including offering financial support.
[10] Regulation 1.12(2)(a).
[11] Applicant’s Statutory Declaration of 1 March 2023, para 29.
The applicant gave evidence he has been in a relationship with [Partner A] since around 2020 and that they were friends previously. He talked about their future plans to marry and have children. He confirmed that although he has met [Partner A’s] sister, he has not met her parents. The Tribunal discussed that there is limited independent evidence concerning the relationship.
[Partner A] gave evidence that she and the applicant met about eight years ago and they were friends. She stated that their relationship developed more intimately around May 2022. She gave evidence that her parents have not met the applicant and that she last saw the applicant face-to-face around October/November 2022. She stated that she and the applicant communicate by telephone and plan to marry and have children. She gave evidence that she is of the Christian Orthodox faith. She knew that the applicant had converted to Christianity, but she did not know to what faith of Christianity he belongs to or what faith he was before prior to his conversion. She stated that she has a “terrible memory”.
In accordance with s 359AA of the Act, the Tribunal discussed with the applicant the apparent inconsistent evidence provided by [Partner A] in relation to when the relationship became more than a friendship; she gave evidence that they became more than friends around May 2022, whereas he gave evidence that this occurred around 2020. The Tribunal also raised concerns about the fact that [Partner A] did not know about his current faith. In response, the applicant stated that he asked for a relationship in 2020 and she came to see him when he came out of prison. He said the inconsistency could be due to poor memory, but he is surprised that she could not remember. As far as his conversion to Christianity, the applicant stated that he had told [Partner A] that he had converted but he did not tell her about his Muslim faith as perhaps that “did not come up…of no such importance”.
In oral submissions to the Tribunal, the representative noted that no interpreter was used in preparation of the applicant’s Statutory Declaration. As to [Partner A’s] lack of knowledge about the applicant’s faith, the representative contended that the Tribunal should give the applicant the benefit of doubt as there are other consistencies.
Although the Tribunal accepts that no interpreter was used in preparation of the applicant’s Statutory Declaration, that does not explain the inconsistent oral evidence in relation to when the relationship became more than a friendship. [Partner A] gave evidence that they became more than friends around May 2022, whereas the applicant gave evidence that this occurred around 2020. The Tribunal has carefully considered other explanations such as [Partner A’s] memory challenges but finds them unpersuasive. Furthermore, the Tribunal is of the view that the fact that she did not know about the applicant’s current faith or that he was a Muslim prior to his claimed conversion, raises concerns about the depth of the relationship and potentially its genuineness. Given that his conversion is considered by [Partner A] to be significant in terms of the potential harm he could face on his return to Iran (evidence she gave), the Tribunal finds it odd that she did not know much more about this topic.
The Tribunal is not determining a partner visa application but the applicant’s relationship with [Partner A] has been raised, although it is conceded that the cancellation would not “result in separation of a family unit…”. On the evidence and given the above concerns, the Tribunal finds that [Partner A] is not a member of the applicant’s family unit; she is not a spouse or de facto partner, as defined. She is a “girlfriend” and the impact in that context on her and the applicant would be discussed later on that basis.
The Tribunal gives this consideration neutral weight.
The degree of hardship that may be experienced by the visa holder if the visa is cancelled.
In response to the NOICC, the applicant said that he was not guilty of the charges and he had not been convicted. He made submissions that if forced to return to Iran, he would be executed, that he would have no one to support him, his mother is unwell and his father is unable to work, and that his brother went to [Country 1] due to debt.
The applicant’s representative made extensive written and oral submissions relating to the applicant’s mental health status and the impact of long-term detention.
The applicant’s representative referred to multiple scholarly and academic research which shows that persons in immigration detention suffer adverse consequences including a high risk of experiencing a deterioration in mental health, engagement in self-harm, suicide, psychological distress, being exposed to high rates of violence in Australian detention centres, and detention centres being ‘punitive’ in nature. In essence, the representative argued that the degree of hardship imposed on the applicant should the visa be cancelled is significant as immigration detention exposes him to an increased risk of deterioration in mental health, self-harm, suicide and violence.
The Tribunal accepts the evidence that the applicant has a history of symptoms of depression and anxiety. In her report of 9 May 2019, [Psychologist A][12] provided clinical opinions about the applicant. She noted that the applicant presents a low risk of similar re-offending, and expressed concerns about ongoing incarceration, which is likely to exacerbate the applicant’s “social isolation, and the depressive symptoms he is experiencing”. The report was presented to the Sentencing Court and as raised in the Tribunal hearing, no recent report about the applicant’s mental health has been provided to the Tribunal.
[12] [Psychologist A’s] report of 9 May 2019.
The Tribunal discussed with the applicant his current mental health, which he described as being “OK”. He told the Tribunal that he focuses on his daily physical activities, and he sees a psychologist to talk about a distressing incident at the detention centre relating to the suicide of [a] detainee. He said he did not know the person but has been impacted by the incident.
The current evidence before the Tribunal is that the applicant is feeling “OK”. The Tribunal accepts that the suicide of the [detainee] has distressed the applicant and the Tribunal acknowledges his distress. The Tribunal also accepts that there are potential adverse consequences to detention, however, the Tribunal has to make a decision based on the current evidence before it, which is that the applicant is feeling “OK”. It is inappropriate for the Tribunal to engage in speculative reasoning and make a decision based on what could or might happen as it is an impossible task to predict the future with certainty. Detention is not intended to be punitive; it is a lawful consequence of the legislation; a person who is not lawful in Australia faces detention. The Tribunal’s role is to reach a conclusion based on the law and relevant policy and it is inappropriate for the Tribunal to engage in what could be perceived as being activism. The Tribunal is independent and impartial; matters of law and policy are for parliament and policy makers.
The Tribunal also accepts that in case of cancellation, there would be a level of financial hardship; the applicant would not be able to work and as such he would face challenges in paying bills, rent, and helping his family in Iran.
The Tribunal has accepted that [Partner A] is the applicant’s girlfriend who is prepared to support him including providing financial support. In case of cancellation, both he and [Partner A] would also be impacted emotionally.
The applicant gave evidence that he cannot return to Iran because he had problems in Iran, namely engaging in intimate sexual conduct without being married. There is also evidence before the Tribunal of a sur place claim relating to claimed conversion from Islam to Christianity. The applicant told the Tribunal that he came to Australia in February 2013 without a visa by boat. The applicant said that he applied for a Safe Haven Enterprise (XE 790) visa which was refused at the primary stage. On review, the IAA affirmed the decision to refuse the visa. The matter is currently before the Courts.
The Tribunal is of the view that the applicant’s case has been dealt with by the Department, the IAA, but unless the Court remits the matter, the IAA’s decision remains lawful. However, the Tribunal gives some weight to the fact that the applicant continues to raise protection claims.
The Tribunal is satisfied that there would be a degree of financial, emotional, and psychological hardship associated with the visa cancellation.
On balance, the Tribunal gives this consideration some weight against cancellation.
The circumstances in which the ground for cancellation arose.
The circumstances arose when the applicant was charged with:
·Importation of a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.1(1) of the Criminal Code (Cth) Law Part Code: 58454; and
·Attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely opium, contrary to subsection 307.5(1), by virtue of subsection 11.1(1) of the Criminal Code (Cth) Law Part Code: 41445/58468.
He pleaded guilty to the first charge and he was convicted of that offence. The second charge was dropped.
The applicant told the Tribunal that he did not know about the nature and quantity of the imported illicit substance.
In written submissions, the representative contended that the applicant “accepts that his offending is objectively serious. However, the Cancellation Decision was made in the context of relatively more serious circumstances than those which this Tribunal is presented with. This is because the Delegate relied on both the Importation Charge and Attempt Charge. It is apparent from the prosecution’s forensic decision to withdraw the Attempt Charge and the Applicant’s conviction of one of two charges that the objective seriousness of the Applicant’s conduct has reduced since the Cancellation Decision… the principles surrounding the objective seriousness of criminal offences remain constant… As the Applicant received a head sentence of eight years and the weight of the drugs involved in the offending was a commercial quantity, it is open for the Tribunal to draw an analogy to find that the Applicant’s offending rests in the middle range of objective seriousness…The Applicant’s sworn evidence and conduct shows that he takes complete responsibility for his criminal offending. Notwithstanding this, there are a number of relevant mitigating factors to his conduct. This should not be taken as an attempt by the Applicant to absolve himself from culpability, but rather, a confrontation of the evidence in its entirety”.[13]
[13] Submissions of 1 March 2023, paras 13-15.
The Tribunal notes the applicant’s explanations, but the Court had found the applicant guilty and sentenced the applicant. The Tribunal acknowledges the submissions about the length of the imposed sentence as being at the lower end, however, a sentence of a term of eight years is significant. With respect, the submission that the cancellation decision was made in the context of relatively more serious circumstances than those which this Tribunal is presented with, is not persuasive; the applicant has now been convicted of a significant offence.
The Tribunal views the applicant’s offending as serious, and the Tribunal gives this consideration significant weight in favour of cancellation.
The possible consequences of cancellation.
In submissions to the Tribunal, the representative contended that the direct consequence of cancellation is the “elongation of the Applicant’s deprivation of liberty in the long term. Liberty has been judicially considered as “the most elementary and important of…basic common law rights”. The Act itself recognises that a threat to liberty may itself constitute a form of persecution. The Applicant’s freedom is a matter that requires serious consideration, particularly where the Applicant would otherwise be entitled to enter the Australian community. It is open for this Tribunal to follow the decision of Member Dragovic in Re 1814079 [2018] AATA 2101 who gave “little weight against cancelling his visa for the reason that remaining in detention for a period of even a few months still is a deprivation of liberty”.[14]
[14] Ibid para 22.
In case of cancellation, the applicant could be detained indefinitely and be involuntarily removed from Australia. He would also face difficulties in applying for any further visas in Australia.
Although detention and removal are potential consequences due to legislative provisions[15], given that unless the applicant departs voluntarily, he could face indefinite detention and be deprived of his freedom, the Tribunal gives this consideration some weight against cancellation.
Any other matter considered relevant.
[15] Sections 189 and 198 of the Migration Act.
As well as those considerations noted in the Direction, the Tribunal has also 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.
The applicant came to Australia in 2013 seeking protection. The applicant applied for a Safe Haven Enterprise (XE 790) visa which was refused. On review, the IAA affirmed the decision to refuse the visa. The matter is currently before the Court.
The Tribunal is satisfied that the applicant’s purpose to travel and stay in Australia is consistent with him seeking protection. As the Court has not yet determined the appeal relating to the decision of the IAA, the Tribunal is satisfied that there is a compelling need to remain in Australia. The Tribunal also gives some weight to the applicant’s relationship with [Partner A].
The Tribunal gives this consideration weight in favour of the applicant.
The extent of compliance with visa conditions.
The Tribunal discussed with the applicant that his visa was subject to conditions 8564 (must not engage in criminal behaviour), and 8566 (must not breach code of behaviour).[16] The Tribunal indicated that it appears that he has breached those conditions, with which he agreed.
[16] This includes the requirement not to disobey any Australian laws including Australian road laws, must not take part in, or get involved in, any kind of criminal behaviour in Australia.
The Tribunal gives this consideration weight in favour of cancellation.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship).
This has previously been discussed. The Tribunal has given this consideration weight in favour of the applicant.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
This has previously been discussed. There is no evidence that cancellation is being considered because of a relationship breakdown, or that the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The Tribunal confirms that it gives this consideration weight in favour of cancellation.
Past and present behaviour of the visa holder towards the Department.
The applicant responded to the NOICC.
The Tribunal gives this aspect some weight in the applicant’s favour.
Whether there would be consequential cancellations under s 140.
There is no evidence of consequential cancellation under s 140.
The Tribunal gives this aspect neutral weight.
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.
The Tribunal has previously dealt with the mandatory legal consequences.
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.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). “Non-refoulement obligations” is not confined to the protection obligations to which s 36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
Article 33 of the Refugees Convention is relevant in this instance. Refoulement is prohibited under Article 33 of the Refugees Convention unless:
·there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or
·the refugee has been, by a final judgment, convicted of a particularly serious crime and constitutes a danger to the community.
The Tribunal will now consider whether the applicant’s circumstances may engage ‘non‑refoulement obligations’ which are broader than the term ‘protection obligations’ contained in s 36 of the Act.
The applicant came to Australia seeking protection. The applicant has been found not to be owed Australia’s protection obligations and he has been refused the SHEV. Both the Department and the IAA found that the applicant is not owed Australia’s protection. He advised the Tribunal that the appeal has not been determined and he continues to claim protection. The Tribunal is satisfied that the applicant has not exhausted his entitlements to remain lawfully in Australia. In any case, the Tribunal is satisfied that the applicant faces a low risk of being returned to Iran where he could face a real chance of Convention-related harm, based on statements of executive policy that Australia will not return the person and there is absence of evidence to the contrary.[17]
[17] WKMZ v MICMSMA [2021] FCAFC 55 at [151].
Moreover, the Tribunal is mindful that the cancellation of a visa is legally distinct from removal,[18] and that, prior to any removal, the Department might undertake an International Treaties Obligations Assessment which will determine if there are any international obligations for consideration. The Tribunal is of the view that it is reasonable to suggest that Australia would not remove a person in breach of international obligations.
[18] COT15 v MIBP (No 1) (2015) 236 FCR 148, at [32].
In submissions to the Tribunal, the representative argued that as the cancellation of the visa would “oblige Commonwealth officers to continue the detention of the Applicant, such a decision would amount to a clear violation of international law. The Working Group of Arbitrary Detention of the Human Rights Council has repeatedly provided Opinions to this effect… noting that such breach amounts to article 2, 9, 16 and 26 of the International Covenant of Civil and Political Rights and article 2, 3, 7, 8 and 9 of the Universal Declaration of Human Rights… The consequences of such a breach are serious as a failure to perform treaty obligations in good faith could expose Australia to responsibility for internationally wrongful acts under the Draft Articles on Responsibility of States for Internationally Wrong Acts24: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195 at [13]”.[19]
[19] Submissions of 1 March 2023, para 24.
In its Preamble, the International Covenant on Civil and Political Rights (ICCPR) observes that “in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. Articles 2, 9, 16 and 26 of the ICCPR relate to giving effect to the rights recognised in the Covenant, and to provide an effective legal remedy for any violation of those rights (Article 2). Article 9 relates to the rights to liberty and security of the person, prohibition of arbitrary arrest and detention, and the requirement that any deprivation of liberty is to be according to law. Article 16 requires states to recognize everyone as a person before the law. Article 26 provides for an autonomous equality principle which is not dependent upon another right under the Convention.
The Universal Declaration of Human Rights (UDHR) in Article 2 states that everyone is entitled to all the rights and freedoms. Article 3 states that everyone has the right to life, liberty and security of person. Article 7 states that all are equal before the law and are entitled without any discrimination to equal protection of the law. Article 8 refers to everyone’s the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9 states that no one shall be subjected to arbitrary arrest, detention or exile.
The Tribunal recognises the significance of the principles in the ICCPR and the UDHR.
In essence, the representative is contending that detention of the applicant amounts to breach of the ICCPR and the UDHR. The Tribunal observes that the basic but significant principle in both instruments is that arbitrary detention is unlawful. Under s 189 of the Act, if an officer knows or reasonably suspects that the a person in the migration zone is an unlawful non-citizen, the officer must detain that person. Although detention is not desirable, it is not arbitrary detention but is a consequence of law. As such and given that it is a result of s 189 of the Act, the Tribunal is not satisfied that it amounts to a breach of the ICCPR or the UDHR.
In light of those comments, the Tribunal is not satisfied that Australia would be in breach of its non-refoulement obligations or any other obligations, in case of the cancellation of the applicant’s visa.
The Tribunal gives this aspect neutral weight.
If it’s a permanent visa, whether the former visa holder has formed strong family, business or other ties.
The subclass 050 (Bridging General) is a temporary visa.
The Tribunal gives this aspect neutral weight.
Any other relevant matters.
The representative noted that there are other relevant considerations including the applicant’s low risk of reoffending, the grant of parole, good prospects of rehabilitation, and his positive conduct in prison and detention. The representative argued that the “significant hardship which the Applicant will experience if the decision under review is affirmed; the mitigating factors to his offending; the extreme emotional and psychological harm that could be imposed on an Australian citizen; the Applicant’s low risk of re-offending; the Applicant’s rehabilitation and conduct in custody and immigration detention cumulatively outweigh the Australia Government’s low tolerance for criminal behaviour. This is particularly where the Applicant’s conduct in custody has demonstrably introduced inmates to positive lifestyles which would conceivably decrease their risk of reoffending, thereby positively contributing to the protection and productivity of the Australian community in the long-term”.[20]
[20] Submissions dated 1 March 2023, para 41.
The Tribunal has addressed the hardship aspect and gives some weight in favour of the applicant for the matters raised in the submissions such as the low risk of reoffending, the grant of parole, good prospects of rehabilitation, and the applicant’s positive conduct in prison and detention.
The applicant has provided letters of support from individuals who see the applicant in a positive manner and the Tribunal has given their letters of support and offers of financial assistance some weight.
The Tribunal has carefully considered the material before it individually and cumulatively. The cancellation process is not intended to be a simple mathematical or formulaic process but an assessment involving a balanced determination. The applicant has been convicted of a serious offence. Although the Tribunal acknowledges that there is a degree of personal hardship, for the reasons outlined above, and on balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation.
The Tribunal has decided that the ground for cancellation exists and, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
Antoinette Younes
Deputy President
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