Aciek and Minister for Home Affairs (Migration)

Case [2018] AATA 2755

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755 (19 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2428

Re:Aciek Akec Aciek

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:19 July 2018

Place:Sydney

The decision under review is affirmed

.............................[SGD]...........................................

Mr P W Taylor SC, Senior Member

CATCHWORDS

MIGRATION - Class XB Subclass 202 Global Special Humanitarian visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction No 65 - serious criminal convictions - protection of the Australian community - community expectations - risk of reoffending - expectations of the Australian community - best interests of minor children - strength nature and duration of ties - hardship in the event of removal - South Sudan - non-refoulment obligations - decision affirmed

LEGISLATION

Mental Health Act 2009 (SA)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562; 208 ALR 124
ALN17 v Minister for Immigration and Border Protection [2017] FCA 726
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577
FTYC v Minister for Immigration and Border Protection [2018] AATA 20
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Ibrahim v Minister for Immigration and Border Protection [2017] FCA 1218
KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Maioha v Minister For Immigration and Border Protection [2018] FCA 1016
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48;(2010) 243 CLR 164
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319
Steyn v Minister for Immigration and Border Protection [2017] FCA 1131
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133; [2001] FCA 568

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

Direction No. 75, Refusal of Protection…

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Details
AGLC
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Case
[2018] AATA 2755
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Aciek for the revocation of the mandatory cancellation of his Global Special Humanitarian visa (Class XB, Subclass 202). The Minister for Home Affairs had cancelled Mr Aciek's visa under section 501(3A) of the *Migration Act 1958* (Cth) due to his failure to pass the character test, stemming from numerous criminal convictions. The Senior Member of the Administrative Appeals Tribunal was required to determine whether the cancellation decision should be affirmed.

The primary legal issue before the Tribunal was whether the mandatory cancellation of Mr Aciek's visa should be revoked. This required the Tribunal to consider the relevant Ministerial Directions, specifically Ministerial Direction No 65, which outlines the factors to be taken into account when considering revocation. These factors include the protection of the Australian community, community expectations, the risk of reoffending, the best interests of minor children, the strength, nature, and duration of ties to Australia, and hardship in the event of removal, including non-refoulement obligations.

The Tribunal's reasoning focused on the significant criminal record of Mr Aciek, which included approximately 21 offences, with a concentration of assault-related and property damage offences between October 2011 and December 2012. The Tribunal noted that Mr Aciek had been in custody since January 2014 and had acquired a substantial criminal record, thus failing the character test. Despite submissions on behalf of Mr Aciek that his past trauma and family deaths in 2012 might explain his offending, the Tribunal found these factors did not provide a substantial basis for satisfaction that his future risk of reoffending was insubstantial. The Tribunal concluded that Mr Aciek represented a very significant risk of re-offending, with a real risk of serious injury to others, a conclusion supported by various reports assessing his behaviour, psychiatric condition, and lack of significant treatment.

The Tribunal affirmed the mandatory cancellation of Mr Aciek's visa, finding that the risk of reoffending and the protection of the Australian community weighed heavily against revocation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Aciek was released back into VIDC custody in mid-May. On a further psychiatric consultation on 24 May 2018 his condition appeared to have improved somewhat, but he still refused to engage in any meaningful way. The attending psychiatrist considered that he was still likely to be psychotic.Risk of reoffending - conclusion The various reports and assessments I have outlined above, convey a consistently expressed view that Mr Aciek represents a very significant risk of re-offending, and a real risk that any such future offending might well involve serious injury to others. That view takes into account the nature and circumstances of his past offences, his behaviour whilst in custody and immigration detention, his psychiatric condition and psychological disorders, and the absence of any significant treatment for his psychological disorders. Those considerations amply justify, and indeed require, the conclusion that there is a high risk of Mr Aciek re-offending. It was strongly put on Mr Aciek’s behalf that a contrary view of his re-offending risk was justified – principally by three considerations. The first was the unlikely to be repeated impact of the combination of family deaths that occurred in 2012, and were said to have deeply affected Mr Aciek. The second was the available support offered by his family. The third was the clear rehabilitation strategy outlined in the 2014 psychological assessment report. The first of those matters alluded to the following events:- (a)May 2012 – Mr Aciek’s brother and uncle died in South Sudan (b)June 2012 – another of Mr Aciek’s brothers died in South Australia in unexplained circumstances (c)November 2012 - another one of Mr Aciek’s uncles died (or at least he learned of his death)(d)December 2012 - Mr Aciek’s father died in South Sudan. The personal impact of these events on Mr Aciek was recounted in the January 2014 psychological report, and apparently accepted by the sentencing judge in May 2014. After alluding to the observation in the report that Mr Aciek had become visibly distressed when he was asked questions about his childhood experiences in the Kakuma refugee camp in Kenya, the judge made the following observation in the course of his sentencing remarksFor those of us who are being brought up in the safety and comfort of Australia your early life is difficult to imagine. You have suffered additional tragedy with the deaths of your uncle and brothers who passed away in South Sudan, the death of your father, with whom you did not have a great deal of contact in more recent years, and the unexplained death of your brother in Paralowie in 2012. I accept that you have internalised grief, have not sought the necessary help for your psychiatric and psychological issues and these offences flowed from that. One of the features of the present case is that Mr Aciek neither made any personal representations in response to the visa cancellation decision, nor provided any statement or evidence at the review hearing. The Minister’s submissions were critical of that lack of personal information from Mr Aciek. But there is no reason to doubt that both Mr Aciek’s traumatic past, and the family deaths in 2012, had some causative influence in his offending. The difficulty is that they do not provide any significant basis for satisfaction that Mr Aciek’s future risk of re-offending is insubstantial.

Ratio Decidendi

Legal Principle Established

Since his August 2004 arrival in Australia Mr Aciek has incurred convictions for approximately 21 offences. Their basic details, including the penalties they attracted, are outlined in the Schedule to these reasons. The Schedule includes the actual date of each offence and is arranged in that chronological order. The other significant information in the Schedule indicates Mr Aciek’s age at the time of each offence, the date of each conviction, and the actual periods when he was in custody, including the date when he went into immigration detention. (I have also included in the Schedule what I regard as an appropriate categorisation of Mr Aciek’s various offences.) The Schedule details reveal the following information: (a)Eight of Mr Aciek’s offences involved either some form of assault, the possession of an object that had been used in assault, or disorderly conduct likely to have resulted in an assault.(b)Those assault related offences occurred over a 14 month period – from October 2011 to December 2012.(c)Four of Mr Aciek’s other offences during that period involved intentionally caused property damage.(d)Mr Aciek’s only convictions since December 2012 have been for offences of failing to comply with bond or bail conditions. (e)Mr Aciek has been in custody (either on remand, under sentence or in immigration detention) since early January 2014.(f)In May 2014, Mr Aciek was called up to serve the 5 month suspended sentence imposed on him following his conviction for his October 2011 offences.(g)On the same occasion in May 2014 Mr Aciek was sentenced to a 59 month term of imprisonment, with a non-parole period that expired on 2 March 2016.(h)Mr Aciek remained in prison until March 2017, about 12 months after the expiry of his non-parole period.(i)Mr Aciek was taken into Immigration detention immediately upon his March 2017 release from prison.MIGRATION ACT PROVISIONS AND THE REVOCATION DISCRETION The significant consequence of Mr Aciek’s May 2014 convictions and sentences is that he thereby acquired a “substantial criminal record”, and could no longer satisfy the statutory “character test” in MigAct58 s 501(6). In those circumstances, at any time Mr Aciek was subject to full time incarceration under sentence the terms of MigAct58 ss 501(3A)&(5) imposed on the Minister a mandatory obligation to cancel his visa, without any corresponding natural justice obligation. Where a visa has been cancelled, its former holder becomes an “unlawful non-citizen”. As such they are liable to be held in immigration detention cancellation – until (amongst other things) their visa is restored, they obtain another visa or they are removed from Australia:- see MigAct58 ss 189, 196. They are required to be removed from Australia “as soon as practicable” – unless they have made undetermined representations for revocation of their visa cancellation, or an undetermined application for a protection visa:- see MigAct58 s 198(2B)&(5A). The practicability limitation implicitly includes detention for the purpose of considering exercise of the Minister’s public interest discretion in MigAct58 s 195A:- Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [27]&[35]. It also alludes to the practical necessity of fixing on an appropriate removal destination. And depending on the particular circumstances, it may permit immigration detention to continue even if the timing of future removal is not readily foreseeable:- Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 ; 208 ALR 124.