Abdulgader and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 388

Abdulgader and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 388 (3 March 2020)

Division:GENERAL DIVISION

File Number:          2019/8502

Re:Abdelsalam Mohamed Aman Abdulgader

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:3 March 2020

Place:Sydney

The Administrative Appeals Tribunal affirms the decision under review.

.............[sgd]..................................................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of a Class XB Refugee visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record under s 501(7) – rape – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – other considerations – where Applicant is considered to be at moderate-high risk of re-offending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Ali v Minister for Immigration and Border Protection [2018] FCA 650
FYBR v Minister for Home Affairs [2019] FCA 500
GBV18 v Minister for Home Affairs [2020] FCAFC 17

SECONDARY MATERIALS

Australian Government Department of Foreign Affairs and Trade “Country Information Report Eritrea”, dated 8 February 2017

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)

REASONS FOR DECISION

Dr L Bygrave, Member

3 March 2020

INTRODUCTION

1. The applicant, Mr Abdelsalam Mohamed Aman Abdulgader, is a citizen of Eritrea. He arrived in Australia in 2014, having been granted a Class XB (subclass 200) Refugee visa.

2. On 17 December 2018, Mr Abdulgader was convicted of rape in the District Court of Queensland, at Brisbane, and sentenced to five years imprisonment, to be suspended for five years after serving 20 months.

3. The Department of Home Affairs (the Department) notified Mr Abdulgader on 12 March 2019 that his visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following ground: he had a “substantial criminal record” as defined in subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.

4. On 2 April 2019, Mr Abdulgader submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act. This request was signed by Mr Abdulgader, dated 15 March 2019, and accompanied by an undated and incomplete Personal Circumstances Form.

5. The Department wrote to Mr Abdulgader on 2 April 2019 stating that his Request for Revocation and Personal Circumstances forms were incomplete and asking him to provide complete forms. Mr Abdulgader submitted a further completed Personal Circumstances Form that was received by the Department on 17 May 2019.

6. On 10 December 2019, a delegate of the Minister for Home Affairs (the Minister)[1] decided not to revoke the visa cancellation decision and, on 20 December 2019, Mr Abdulgader applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.

   [1] The Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

7. The matter was heard in Sydney on 18 February 2020. Mr Abdulgader did not have legal representation; he attended the hearing in person and gave oral evidence with the assistance of an interpreter of the Arabic language.

   RELEVANT LEGISLATION AND POLICY

   The power to revoke a visa cancellation

8. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of subsections 501(6) and 501(7).

9. Subsection 501(6) of the Act defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Subsection 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

10. In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.

11. Mr Abdulgader does not pass the character test in subsection 501(6) of the Act because his criminal record, which comprises a sentence of five years imprisonment (suspended for five years after serving 20 months), meets the statutory definition of a “substantial criminal record” in subsection 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.

12. The power of the Tribunal to review the decision to cancel Mr Abdulgader’s visa is provided by section 500 of the Act. Under subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79) issued by the Minister on 20 December 2018.

    Direction No. 79

13. Paragraph 7 of Direction No. 79 sets out how the discretion is to be exercised. It states:

    Informed by the principles in paragraph 6.3…, a decision-maker:

    …must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

14. Under the heading of “General Guidance” at paragraph 6.2, Direction No. 79 states in part:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles …[in paragraph 6.3] are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

15. In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. These principles are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

16. Paragraph 8 of Direction No. 79 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.

17. Part C of Direction No. 79 sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa as follows:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

18. Direction No. 79 also sets out, at Part C, other considerations that must be taken into account, which include (but are not limited to):

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties to Australia;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments to the applicant if removed from Australia.

    EVIDENCE

19. The evidence before the Tribunal regarding Mr Abdulgader relates to his circumstances and criminal record.

20. There is a paucity of information about Mr Abdulgader’s circumstances. I have considered the Personal Circumstances forms submitted to the Department by Mr Abdulgader. I note however, that Mr Abdulgader told the Tribunal he did not complete either of these forms, and the form received by the Department on 17 May 2019 was completed and signed by a fellow prisoner at Woodford Correctional Centre. I also note that Mr Abdulgader filed a one-page statement on 13 February 2020, and provided limited and contrary oral evidence to the Tribunal, despite being given extensive opportunities at the hearing to describe his circumstances.

21. The following information about Mr Abdulgader is from this documentary and oral evidence.

22. Mr Abdulgader was born in Shagarab, Sudan in 1995. His parents were born in Mendefera, Eritrea and later fled to Sudan. Mr Abdulgader is the youngest of eight siblings. He attended school in Sudan to grade 3, and subsequently worked in vegetable and crop farming.[2]

    [2] Exhibit R, R3, pages 120-125.

23. Together with his family, Mr Abdulgader came to Australia as refugees from Sudan in 2014. Since arriving in Australia, Mr Abdulgader has commenced, but not completed, a TAFE English course. He has not participated in any paid employment and, prior to incarceration, was financially reliant on social security benefits.

24. An Australian Criminal Intelligence Commission report dated 14 February 2019 sets out Mr Abdulgader’s criminal record as follows:

    Court: Brisbane District Court

    Date: 17 December 2018

    Offence: Rape

    Result: Conviction recorded

    Sentenced to imprisonment: five years

    To be suspended for: five years

    After serving: 20 months.[3]

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT

    [3] Exhibit G, G3, page 24.

25. Paragraph 13.1 of Direction No. 79 outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of Mr Abdulgader’s conduct to date

26. Mr Abdulgader was convicted in the Brisbane District Court on 17 December 2018 for the rape of a woman on 29 March 2018. In sentencing remarks, Judge Loury QC described the offending behaviour of Mr Abdulgader as follows:

    You met the complainant at a bar. She was significantly intoxicated, having been drinking since midday. At 2 am she invited you and your friend to her home, where you continued drinking and dancing. Some sexual activity occurred between you and the complainant, which was filmed, and there was some further sexual activity, which is not the subject of any charges, which occurred between you and her.

    There came a time, however, when she asked you and your friend to leave the house. You proceeded to force yourself on her. You pushed her down, threatened to kill her if she did not shut up, and placed a pillow over her face, causing her to have to take some action so that she could breathe. You then had sex with her against her will. She immediately contacted the police as you and your friend left the house. You returned to her house to collect your mobile telephone, at which time she again telephoned the police. Police were able to locate you in the company of your friend a short time later as a result of a photograph that the complainant had provided to the police.

    Your DNA was found in vaginal swabs that were taken from her. You were interviewed by police. You lied to them, denying that you had sex with her. Eventually, however, you said that you had tried to have sex with her but that you could not. You were then arrested and charged with three offences. The matter has proceeded very quickly through the Magistrates Court. After some negotiation, you pleaded guilty to one count of rape. And I accept that was an early plea and that it is a credit to you, as it demonstrates a willingness to cooperate with the administration of justice.

    You have no previous criminal convictions and you are still only a young man, being 23 years of age both now and when the offence was committed. Your conduct has had a dramatic effect upon the complainant. She has eloquently spoken of the shame she feels at having to have numerous tests for sexually transmitted infections, and the self-loathing that she feels as a result of your actions. You were an invited guest in her home. She had a right to feel safe in her own home. She was vulnerable because of her significant intoxication. You took advantage of her and violated her in a most serious way. You used significant violence to achieve that result.[4]

    [4] Exhibit G, G4, page 39.

27. In sentencing Mr Abdulgader, the Court took into account that Mr Abdulgader and his family are refugees from Sudan, and that he will experience “significant hardship” due to his uncertain future and likely housing in immigration detention following his release from prison.[5]

    [5] Exhibit G, G4, pages 39-40.

28. In a written statement dated 13 February 2020, Mr Abdulgader declared:

    I am incredibly remorseful for my actions. My subsequent imprisonment has left a deterring affect on me. The shameful nature of my actions, the trauma it has caused on the victim, and subsequently my family is unfathomable, which has left an indelible stain on my character and reputation that i cannot reverse except to plead for a second chance, so i may continue with my rehabilitation and have the opportunity to contribute to Australian community in a safe and responsible manner.[6] [replicated as in original]

    [6] Exhibit A1.

29. At the Tribunal hearing, Mr Abdulgader was taken through the facts of his rape of a woman on 29 March 2018; he accepted these facts, as set out in paragraph 26 above, were correct. He reiterated that he was ashamed of his behaviour but demonstrated very limited insight into the seriousness of his offending, or the effect of his violent behaviour on the woman he raped. Mr Abdulgader attributed his behaviour to consuming alcohol and smoking cannabis, contending that maybe “something” was mixed with his drink.[7] I find these comments suggest he has neither fully understood nor accepted responsibility for his behaviour.

    [7] Exhibit G, G6, page 62.

30. Having regard to the factors set out in paragraph 13.1.1 of Direction No. 79, I find that:

    ·Mr Abdulgader committed a serious offence that was a violent and sexual crime against a vulnerable woman in her own home. The seriousness of this crime is indicated by the length of the sentence of imprisonment imposed by the Court;

    ·Mr Abdulgader has been convicted of a single offence; there is no evidence of repeated offending or a trend of increasing seriousness; and

    ·There is no evidence before the Tribunal that Mr Abdulgader has ever provided false or misleading information to the Department.

31. Given the above, I find that the nature and seriousness of this offence weighs heavily against revoking the cancellation of Mr Abdulgader’s visa.

    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

32. In his Personal Circumstances Form received by the Department on 17 May 2018, Mr Abdulgader stated:

    I know believe that my addiction to alcohol played a part in my offending so staying away from alcohol would be the best option.[8] [replicated as in original]

    [8] Exhibit G, G6, page 62.

33. Mr Abdulgader also wrote in his statement dated 13 February 2020 that:

    …with the support of the Queensland Parole Board if released on parole and the continuation of my Relapse Prevention Plan, i believe i can become a valued and productive member of the society.[9] [replicated as in original]

    [9] Exhibit A1.

34. Mr Abdulgader has been detained in prison or immigration detention since he was charged with rape on 29 March 2018. Documents produced by Queensland Corrective Services set out the following breaches by Mr Abdulgader:

    ·15 July 2018. Regulation breached: “wilfully consuming or inhaling something likely to induce an intoxicated state, other than medication taken as prescribed by a doctor”. Breach particulars: “At approximately 0730 on 15.7.2018 a 15L drum of fermenting liquid was found in unit… A review of CCTV identified [Mr Abdulgader] as receiving and consuming a bottle of the liquid on 14.7.2018.”[10]

    ·26 September 2018. Incident type: “Drugs – Positive Confirmatory Test Result/Fail to Provide”. Description: Mr Abdulgader “failed to provide a urine sample when directed to do so without reasonable excuse… This is deemed to be a positive result for an illicit substance.”[11]

    ·19 December 2018. Regulation breached: “giving a positive test sample or being taken…to have given a positive test sample.” Breach particulars: Mr Abdulgader “failed to provide a urine sample when directed to do so without reasonable excuse… This is deemed to be a positive result for an illicit substance.”[12]

    [10] Exhibit R, R2, page 88.

    [11] Exhibit R, R2, page 69.

    [12] Exhibit R, R2, page 50.

35. Case notes from Queensland Corrective Services refer to Mr Abdulgader being placed on a “substance abuse program” in response to these breaches on various dates between 30 July 2018 and 24 December 2018.[13]

    [13] Exhibit R, R2, pages 113-115.

36. At the Tribunal hearing, Mr Abdulgader denied he had consumed alcohol or used cannabis in prison. In relation to the breach of regulation on 15 July 2018, he said that he was standing with other prisoners who were consuming “brew” but he was not drinking. Regarding the incident on 26 September 2018 and breach on 19 December 2018, Mr Abdulgader said he was unable to make a urine sample on these occasions because “the door of his cell was left open”. He stated that his inability to provide a urine sample did not mean he was guilty of consuming alcohol or using drugs in prison.

1. On 8 July 2019, Queensland Corrections undertook a risk assessment associated with Mr Abdulgader’s offending using the STATIC-99R risk assessment tool. He was assessed at the “moderate-high” level and recommended to complete a six week Getting Started Preparatory Program and a six-eight month Medium Intensity Sex Offender Program.[14]

   [14] Exhibit R, R2, page 35.

2. At the Tribunal hearing, Mr Abdulgader said he has not participated in any rehabilitation programs or engaged in any counselling. While he accepted that alcohol contributed to his offending behaviour, he could only provide general statements such as he “would not drink alcohol”, he “would live with his parents” and he “would look for work” to support his submission that he would not reoffend if he is released into the Australian community.

3. I place minimal weight on Mr Abdulgader’s oral submissions for the following reasons.

4. First, I note that Mr Abdulgader resided in Australia for more than three years prior to his imprisonment. During this time, Mr Abdulgader did not undertake any employment and commenced, but did not complete, a TAFE English course. He relied financially on social security benefits. He could not tell the Tribunal about any community, religious or sporting activities he had undertaken during this time.

5. Second, Mr Abdulgader has not engaged with any opportunities provided to him in prison. There is no evidence he has participated in any rehabilitation programs to address his sexual offence or alcohol/drug use. He accepted that he enrolled in a “welding short course” in prison but did not complete it.[15]

   [15] Exhibit G, G8, page 70.

6. I therefore find that Mr Abdulgader’s past behaviour in the Australian community and prison does not suggest that he is motivated to either study or seek employment if released into the Australian community.

7. Third, Mr Abdulgader provided no evidence that he has considered future study or employment opportunities. At the hearing, he made vague statements such as he would be “interested in being a mechanic” and “a friend” could “get him work in construction”. He provided no supporting statements from either a friend or a prospective employer.

8. Finally, Mr Abdulgader said he would live at home with his parents and some of his siblings. He told the Tribunal that one of his brothers is employed as a cleaner and one of his sisters is studying; neither his parents nor his other siblings are studying or employed. The only evidence produced by Mr Abdulgader from his family is a one-page written statement by his mother dated 23 April 2019, which refers to family members visiting him in prison.[16] There is no objective evidence before the Tribunal that his family is in a position to support him to rehabilitate if he is released into the Australian community.

   [16] Exhibit G, G7, page 67.

9. In considering the harm and potential risk to the Australian community if Mr Abdulgader were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal behaviour. I cannot be satisfied on the basis of the evidence before the Tribunal that Mr Abdulgader will not reoffend if he is released into the Australian community.

10. On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.

    PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

11. Paragraph 13.2(4) of Direction No. 79 sets out the factors that I must consider in relation to whether revoking the cancellation decision is in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.

12. Mr Abdulgader told the Tribunal he has a niece (five years old) and twin nephews (19 months old) who live in Brisbane and are the children of his brother. He said he last saw his niece in December 2019 and he has not met his nephews.

13. I note these children have parents, grandparents and other relatives. There is no evidence before the Tribunal that Mr Abdulgader plays any “parental” role in the lives of either his niece or nephews, or the likely effect Mr Abdulgader’s removal would have on his niece or nephews. 

14. While I find this primary consideration weighs in favour of Mr Abdulgader, I do not place any weight on this consideration because the children have parents and other family members present in their lives.

    PRIMARY CONSIDERATION 3 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

15. Paragraph 13.3(1) of Direction No. 79 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

16. I have regard to the decision by Perry J in FYBR v Minister for Home Affairs, who observed that:

    …it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[17]

    [17] [2019] FCA 500, [42].

17. Considering the requirement of paragraph 13.3(1) and the principles set out in paragraph 6.3 of Direction No. 79, I am satisfied the Australian community expects that a person who is not an Australian citizen “will obey Australian laws” while living in Australia and will generally “forfeit the privilege of staying” in Australia if they commit a serious crime of a violent and sexual nature.

18. Mr Abdulgader was convicted of rape in Brisbane District Court on 17 December 2018. The nature and seriousness of this offence is described in the Court’s sentencing remarks set out in paragraph 26 above. I am satisfied that Mr Abdulgader was convicted of a serious crime of a violent and sexual nature.

19. I find this third primary consideration counts heavily against revoking the mandatory cancellation of Mr Abdulgader’s visa.

    OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 79

20. Paragraph 14 of Direction No. 79 sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation.

21. Relevant other considerations in Mr Abdulgader’s application are international non-refoulement obligations; the strength, nature and duration of his ties to Australia; the impact on his victim; and the extent of impediments if he is removed from Australia. For completeness, there is no evidence before the Tribunal that the other consideration of ‘the impact on Australian business interests’ is relevant to these proceedings.

    International non-refoulement obligations

22. Paragraph 14.1(1) of Direction No. 79 articulates Australia’s non-refoulement obligations in accordance with international human rights treaties[18] and, in particular, the “obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm”.

    [18] 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).

23. Direction No. 79, at paragraphs 14.1(2) and (4), also states:

    (2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

    …

    (4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

24. In his Personal Circumstances Form received by the Department on 17 May 2019, Mr Abdulgader declared the following concerns if he returns to his country of citizenship:

    They will kill me.

    Rebel will kill me for leaving Arithrea.[19] [replicated as in original]

    [19] Exhibit G, G6, page 65.

25. Mr Abdulgader’s application to the Tribunal made on 20 December 2019 also stated:

    The consequences of me returning to my country of origin was not given enough weight as upon my return the death sentence could be applicable if my crime in Australia was made available to the authorities in Sudan (north).[20] [replicated as in original]

    [20] Exhibit G, G1, page 5.

26. In his statement dated 13 February 2020, Mr Abdulgader further declared:

    …i’m originally from Eriteria and North Sudan, if sent home (North Sudan) i will have no family in Sudan to help and support emotionally or otherwise and i’m unable to return to Eriteria for fear of persercution by rebels as stated in my revocation.[21] [replicated as in original]

    [21] Exhibit A1.

27. In his oral evidence to the Tribunal, Mr Abdulgader accepted that he is a citizen of Eritrea by descent from his parents. Mr Abdulgader’s status as a citizen of Eritrea is confirmed in his “United Nations High Commissioner for Refugees (UNHCR) – Resettlement Registration Form” (UNHCR Form).[22] This means that, if Mr Abdulgader’s visa is cancelled, he would return to Eritrea.

    [22] Exhibit R, R3, page 121.

28. In response to Mr Abdulgader’s claim to fear harm in Eritrea, the Minister provided written submissions that:

    …to the extent the Tribunal is required to consider and weigh the applicant’s claimed fear of harm as part of its consideration of the factors for or against revocation, that it remains highly relevant to the Tribunal’s weighing exercise that the applicant is able to make an application for a Protection visa and to have his claims assessed and tested under the protection visa regime.[23]

    [23] Statement of Facts, Issues and Contentions of the Respondent dated 7 February 2020, paragraph 61.

29. I also have regard to the decision in Ali v Minister for Immigration and Border Protection, in which Flick J held that:

    To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.[24]

    [24] Ali v Minister for Immigration and Border Protection [2018] FCA 650, [30].

30. The Federal Court has provided extensive case law in relation to consideration of non-refoulement obligations. Most recently, the Full Federal Court in GBV18 v Minister for Home Affairs stated:

    Giving meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm independently of any claim concerning Australia’s non-refoulement obligations, may require the decision-maker to do more than simply acknowledge or note that the representations have been made.

    …

    The failure to consider, in the relevant legal sense, a substantial or significant and clearly articulated claim raised in representations made under s 501CA(3), as giving rise to “another reason” for revoking the visa cancellation, may constitute a failure to carry out the statutory task and involve jurisdictional error.[25]

    [25] [2020] FCAFC 17, [32].

31. Mr Abdulgader raised claims in writing about fear of harm if he returns to Eritrea. However, his oral evidence to the Tribunal was contrary to his written statements. He said that he “knew nothing” about Eritrea or whether there were “rebels” in Eritrea. He did not know about national service requirements in Eritrea. He thought that he may have some relatives in Eritrea but had not spoken about this with either his parents or siblings.

32. I am satisfied there is no evidence before the Tribunal that demonstrates a substantial, significant or clearly articulated claim by Mr Abdulgader in relation to non-refoulement.

33. I also address Mr Abdulgader’s claims when considering the other consideration – extent of impediments if he is removed from Australia.

    Strength, nature and duration of ties to Australia

34. In considering the strength, nature and duration of Mr Abdulgader’s ties to Australia, paragraph 14.2(1) of Direction No. 79 provides that:

    Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

35. Mr Abdulgader arrived in Australia with his family in 2014. He was 19 years old.

36. All of Mr Abdulgader’s family members live in Australia; this includes his parents, seven siblings, one niece and two nephews. Mr Abdulgader has produced a single reference from his mother dated 23 April 2019, which focuses on listing his family members who have visited him in prison.

37. In his Personal Circumstances Form received by the Department on 17 May 2019, Mr Abdulgader declared the impact on family members if his visa cancellation was not revoked would be that:

    They would lose a son, brother to a country that I’m not wanted and it will affect them mentally.[26] [replicated as in original]

    [26] Exhibit G, G6, page 61.

38. In his statement dated 13 February 2020, Mr Abdulgader declared:

    I have been in Australia for four years and arrived under a refugee visa, i do not have a long employment history due to my difficulty in integrating into Australian society, all my family resides in Australia whom are citizens of the country…[27] [replicated as in original]

    [27] Exhibit A1.

39. Mr Abdulgader told the Tribunal he has not been employed since arriving in Australia and he commenced, but did not complete, a TAFE English course. He said that he had looked for work, including fruit picking, but had been unsuccessful and this had made it difficult for him to integrate into Australia. Prior to his imprisonment, Mr Abdulgader was financially reliant on social security benefits. Mr Abdulgader provided no evidence that he has made any positive contributions to Australian society through participation in community, sporting or religious activities.

40. I am satisfied Mr Abdulgader has strong family ties to Australia, although he has provided no supporting evidence from either his father or siblings. I also must place less weight on this consideration because of Mr Aldulgader’s limited positive contribution to the Australian community between his arrival in Australia in 2014 and his incarceration on 29 March 2018.

41. I find consideration of Mr Abdulgader’s ties to Australia weighs in favour of revoking the decision to cancel his visa.

    Impact on victims

42. Paragraph 14.4 of Direction No.79 states that I must take into account, where relevant, the:

    (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

43. In written submissions to the Tribunal, the Minister contended that “there is clear evidence before the Tribunal of the impact the applicant’s offending has had on the victim”.[28]

    [28] Statement of Facts, Issues and Contentions of the Respondent dated 7 February 2020, paragraph 69.

44. I refer to the sentencing remarks of the Court, which noted:

    Your conduct has had a dramatic effect upon the complainant. She has eloquently spoken of the shame she feels at having to have numerous tests for sexually transmitted infections, and the self-loathing that she feels as a result of your actions. You were an invited guest in her home. She had a right to feel safe in her own home. She was vulnerable because of her significant intoxication. You took advantage of her and violated her in a most serious way. You used significant violence to achieve that result.[29]

    [29] Exhibit G, G4, page 39.

45. At the Tribunal hearing, Mr Abdulgader conceded that his offending behaviour impacted his victim. I note there is no statement before the Tribunal from Mr Abdulgader’s victim.

46. I am satisfied this consideration weighs against revoking the mandatory cancellation of Mr Abdulgader’s visa.

    Extent of impediments if Mr Abdulgader is removed from Australia

47. The extent of impediments if Mr Abdulgader is removed from Australia relies on his capacity to reside in Eritrea. Pursuant to paragraph 14.5 of Direction No. 79, I must consider Mr Abdulgader’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.

48. Mr Abdulgader is 25 years old. There is no evidence before the Tribunal that Mr Abdulgader has any physical or mental health problems.

49. At the Tribunal hearing, Mr Abdulgader said he was born in Sudan and has never lived in Eritrea. He said he is unaware if he has any relatives in Eritrea because he has not spoken about this with either his parents or siblings.

50. Mr Abdulgader confirmed to the Tribunal, and provided information in his UNHCR Form, that he is able to speak Arabic, Sudanese, Tigrigna, Tigre, Khasa and Xasa.[30] He said that he only speaks Tigrigna, which is the language spoken in Eritrea, with his mother.

    [30] Exhibit R, R3, page 121.

51. As outlined in paragraphs 60-62 above, Mr Abdulgader has provided written statements that he fears he could be killed by “rebels” if he is returned to Eritrea. At the Tribunal hearing, Mr Abdulgader accepted he “knew nothing” about Eritrea or whether there were “rebels” in Eritrea, and did not know about national service requirements in Eritrea.

52. I have regard to an Australian Government Department of Foreign Affairs and Trade “Country Information Report Eritrea” (DFAT Report) dated 8 February 2017 and filed by the Minister’s legal representative prior to the Tribunal hearing. Of most relevance to Mr Abdulgader, the DFAT Report states:

    ·“most Eritreans use Tigriniya as their working language”;[31]

    ·the “compulsory nature of national service for Eritreans of working age means most Eritreans are engaged in some form of economic activity”;[32] and

    ·the Eritrean “government requires all physically- and mentally-capable men and women between the ages of 18-70 to perform a full-time national service, which may include a military, development or civil service component”.[33] 

    [31] Exhibit R, R4, page 145.

    [32] Exhibit R, R4, page 146.

    [33] Exhibit R, R4, page 152.

1. The DFAT Report also refers to a US State Department 2015 Human Rights Report, which found:

   ·“Eritrean citizens living abroad generally had the right to return to Eritrea”; and

   ·people “known to have broken laws abroad…had their visas…looked at with greater scrutiny”.[34]

   [34] Exhibit R, R4, page 184.

2. The DFAT Report assessed that “the act of leaving Eritrea illegally is in itself not likely to put a returnee at risk of serious harm”.[35]

   [35] Exhibit R, R4, page 184.

3. While I accept that Mr Abdulgader is able to speak Tigriniya, the “working” language of Eritrea, there is no question that he would face significant cultural, social and economic barriers if he returns to Eritrea. I note that there is no evidence before the Tribunal about how Mr Abdulgader may be treated as the son of people who fled Eritrea to live as refugees in Sudan. It would appear from information in the DFAT Report that Mr Abdulgader would be required to participate in compulsory national service in Eritrea. I also note Mr Abdulgader’s oral evidence that he does not know if he has any relatives or friends living in Eritrea as he has not spoken about this with his parents.  

4. I am satisfied that there are significant impediments, apart from being removed from his family in Australia, that would affect Mr Abdulgader commencing a life in Eritrea. I find that this consideration weighs for revoking the decision to cancel Mr Abdulgader’s visa.

   CONCLUSION

5. The first and third primary considerations weigh heavily against the revocation of the cancellation decision. The second primary consideration weighs for Mr Abdulgader but, for the reasons set out in paragraph 50 above, I place minimal weight on this consideration.

6. Having had regard to the other considerations, I find both Mr Abdulgader’s ties to Australia and the impediments to his removal from Australia weigh for revoking the cancellation of his visa. I am satisfied that the international non-refoulement obligations have limited relevance to this decision and the consideration of the impact on Mr Abdulgader’s victim weighs against revoking the mandatory cancellation of his visa.

7. Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations, that it is not appropriate to revoke the decision to cancel Mr Abdulgader’s visa.

   DECISION

8. The Tribunal affirms the decision made by a delegate of the Minister on 10 December 2019 to not revoke the cancellation of Mr Abdulgader’s visa.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member.

...........[sgd]...........................................................

Associate

Dated: 3 March 2020

Date of hearing:	18 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms Brooke Griffin