Anyoun and Minister for Immigration and Border Protection (Migration)
[2018] AATA 174
•14 February 2018
Anyoun and Minister for Immigration and Border Protection (Migration) [2018] AATA 174 (14 February 2018)
Division:GENERAL DIVISION
File Number: 2017/7096
Re:Garang Simon Anyoun
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:14 February 2018
Place:Melbourne
The Tribunal affirms the decision under review.
............................[sgd]............................................
Senior Member
MIGRATION – request for revocation of mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke the mandatory cancellation should be exercised – procedural issue – admission of a late document - primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
Legislation
Migration Act 1958; ss 499, 500, 501, 501CA,
Migration Regulations 1994; reg 2.52
Cases
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337
Re HGBY and Minister for Immigration and Border Protection [2017] AATA 2824
Re HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YNQY v Minister for Immigration and BorderProtection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under Section 499 – 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 Visas Relying on section 36(1C) and section 36(2C)(b)
Department of Foreign Affairs and Trade, South Sudan (10 November 2017) (Accessed February 2018)
REASONS FOR DECISION
Senior Member D. J. Morris
14 February 2018
Preliminary
The Applicant, Mr Garang Simon Anyoun, is 25 years of age. He was born in Sudan. At the age of 16 he arrived in Australia holding a Class XB Subclass 202 (Global Special Humanitarian) visa (the visa). On 3 February 2017 a delegate of the Minister for Immigration and Border Protection (the Respondent) made a decision to cancel Mr Anyoun’s visa. This was a ‘mandatory cancellation’ under s 501(3A) of the Migration Act 1958 (the Act) as Mr Anyoun had a ‘substantial criminal record’ under s 501(6)(a) of the Act. On 19 November 2017 a delegate of the Respondent made a decision to refuse to revoke the mandatory cancellation of the visa under s 501CA(4) of the Act. Mr Anyoun subsequently made an application for review of the non-revocation decision to this Tribunal under s 500(1)(ba) of the Act.
The hearing was held on 2 and 8 February 2018. The Applicant was represented by Mr Timothy Farhall, of counsel, instructed by Ms Susan Brown. The Respondent was represented by Ms Ashlee Briffa of the Australian Government Solicitor. Mr Anyoun gave evidence and was cross-examined. The Tribunal also heard from five other witnesses: Ms Chantelle Higgs, a social worker and family friend; Mr Tom Hall, an accredited mental health social worker; Dr Karen Scally, neuropsychologist; Mr David Anyoun, the older brother of the Applicant; and Mr Michael Anyoun, his younger brother.
The Respondent tendered a volume of Relevant Documents (RD) and a volume of supplementary relevant documents (SRD), and summonsed documents, which were taken into evidence. The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent. Other documents were also admitted into evidence.
Procedural matter: Admission of a document
On 1 February 2017, the Applicant lodged with the Tribunal a document. Section 500(6H) and (6J) of the Act provide:
(6H)If:
(a)an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J)If:
(a)an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone;
the Tribunal not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
Accordingly, the document was kept under seal and not before me for the hearing on 2 February 2018 because it had not been provided to the Minister at least two business days before the hearing.
At the resumption of this hearing on 8 February 2018, Mr Farhall submitted to the Tribunal that, as the document had been provided to the Respondent more than two business days before the second day of the hearing, it should be capable of being placed before the Tribunal. He cited, in support of this contention, Nettle J’s judgment in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203. That case concerned a question where the Tribunal had effectively (and, as the High Court found, erroneously) decided the provisions of sections 500(6H) and (6J) precluded the consideration of any matter which had not been presented on behalf of the Applicant two days before the hearing. However, for the purposes of this hearing, the following findings of His Honour are relevant, at 236:
Finally, there remains the question of whether, when a hearing is adjourned from day to day, the second and any subsequent day of the hearing should be regarded as part of the hearing which began on the first day or as a separate hearing for the purposes of the provision.
Ordinarily, one would speak of each day of a hearing as part of the one hearing. So, as has been observed, if s 500(6H) had been drafted in terms akin to s 33(2)(a) and (b) of the AAT Act as requiring notice not less than two business days before the hearing of the application for review, there would be little reason to doubt that the requirement was to give notice not less than two business days before the first day of the hearing regardless of whether the hearing might be adjourned at the end of the first day and then continue for several days thereafter.
But, as has been seen, in the case of s 500(6H) the use of the expression "a hearing ... in relation to the decision under review" contemplates the possibility of more than one hearing and thereby leaves open as a possible construction that each day's hearing may be regarded as a separate hearing for the purposes of giving notice. Since that construction would have the least impact on the ability of the AAT to deal with an application for review in the manner which it conceives to be best calculated to achieve a just disposition of the application, and would also be consistent with the perceived object of the provision of ensuring that the Minister is not taken by surprise, that construction should be preferred.
The Respondent did not object to the principle behind this submission, but made the point that this stance of the Minister should not be interpreted that the Tribunal should give the document any greater weight than the document itself would intrinsically be given.
The purpose of the ‘two day rule’ is designed, to use layman’s terms, as a ‘no surprises’ provision, so that the Respondent is aware of the content of all the written submissions that will be put in aid of an Applicant. This document, having been provided to the Respondent on 1 February 2018, was clearly in the possession of the Respondent two business days before the second day of this hearing. The Tribunal respectfully adopts Nettle J’s logic that the use of the indefinite article in the sections means that where a hearing had been adjourned, and resumes on a subsequent day, each such day should be treated as “a hearing”. Accordingly, sections 500(6H) and (6J) of the Act did not operate as a barrier to taking the document into evidence, and the Tribunal did so.
Issues and legislation
Section 501CA(4) of the Act sets out that the decision-maker (the Tribunal in this case) may revoke the mandatory cancellation of the visa if Mr Anyoun made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the Tribunal determines that the Applicant passes the “character test”, or, as provided for under subsection 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked.
The Respondent submitted that Mr Anyoun did make representations within the relevant period. The Tribunal had before it (RD p 109) a letter to the Applicant dated 3 February 2017 notifying him that his visa had been cancelled on that date because the delegate was satisfied that he did not pass the character test as a result of his substantial criminal record within the meaning of section 501(6)(a) of the Act. A person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal had before it a National Police Certificate (the Certificate) dated 23 February 2017 (RD p 24). The Certificate shows that on 30 April 2014, Mr Anyoun was convicted in the Melbourne County Court of the offence of Intentionally cause serious injury and was sentenced to 3 years’ imprisonment. Mr Anyoun was, at the time of the visa cancellation decision, serving a full-time sentence of imprisonment in Barwon Prison.
The letter of 3 February 2017 set out for the Applicant how to make representations to the Minister about revoking the decision to cancel the visa. At RD p 106 was a further letter to Mr Anyoun dated 1 November 2017 noting that he provided a response on 2 March 2017.
The character test
Section 501(3A) of the Act relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…
…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501CA then relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Subsection 501(6) sets out the grounds for failing the character test. It states, in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a)The person has a substantial criminal record (as defined by subsection (7); or…
Subsection 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more…
As mentioned above, the Certificate tendered by the Respondent showed a sentence of imprisonment for three years imposed by the Victorian County Court on 30 April 2014. For completeness, the Certificate included the following other offences:
COURT
COURT DATE
OFFENCE
COURT RESULT
Geelong Magistrates Court 15 Feb 2017 Unlawful assault 14 days imprisonment. Concurrent. Sunshine Magistrates Court
14 May 2014
Criminal damage by fire (arson)
4 months imprisonment. Concurrent.
Melbourne County Court 30 Apr 2014 Intentionally cause serious injury
Armed robbery
Att. Armed robbery
Obtain property by deception
(4 charges)
3 years imprisonment.
30 months imprisonment. 21 months of sentence concurrent.
20 months imprisonment concurrent.
2 months imprisonment on each count and concurrent.
Melbourne County Court 8 Nov 2012 Breach re 06/06/2012 recklessly cause serious injury.
Breach re 06/06/2012 recklessly cause injury
Breach of community based order. Order cancelled. 9 months imprisonment.
Breach of community based order. 3 months imprisonment.
Sunshine Magistrates Court
07 Aug 2012
Drive in a manner dangerous
1 month imprisonment. Concurrent.
Melbourne County
Court
06 Jun 2012 Armed robbery
Recklessly cause serious injury
Recklessly cause injury
413 days imprisonment.
Convicted community corrections order for 18 months. To perform 150 hours unpaid community work.
Melbourne Magistrates Court 31 Aug 2011 Intentionally cause injury
Dishonestly receive stolen goods theft-from shop (shopsteal)
Use abusive words in public place
3 months imprisonment. Concurrent.
Sentence is wholly suspended under section 27 of the Sentencing Act 1991. Operational period is 12 months.
On each charge:
7 days imprisonment. Concurrent.
Sentence is wholly suspended under section 27 of the Sentencing Act 1991. Operational period is 12 months.
With conviction, fined $400.00.
Traffic offences are omitted from this list, as is a matter where a conviction was not recorded, and three appearances before the Melbourne Children’s Court and the Parramatta Local Court when the Applicant was a minor.
It was conceded by counsel for the Applicant that Mr Anyoun fails the character test because he has a substantial criminal record as defined in the Act. The Tribunal finds that the Applicant fails the character test by virtue of this substantial criminal record. The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked. Relevantly, North ACJ stated in Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337 at 345:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
Direction No. 65
Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles:
(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 vulnerable members of the community such as minors, 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 a 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.
In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into primary considerations and other considerations.
The primary considerations in Part C are set out in paragraph 13(2):
(a)Protection of the Australian community;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
Other considerations set out in paragraph 14(1) of the Direction are: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paras 8(4) and 8(5)).
Applicant’s contentions
As the Certificate sets out, Mr Anyoun has, for a young man, acquired a serious criminal history involving crimes of violence. Mr Farhall did not dispute this, and conceded that Mr Anyoun’s offending as an adult has been objectively serious. Mr Farhall argued, however, that the Tribunal should take into account the context of the offending in terms of the Applicant’s “limited cognitive functioning and troubled background’. The Applicant submitted:
·First, Mr Anyoun has very serious cognitive deficits, most likely stemming from an acquired brain injury (ABI). His general intellectual functioning is extremely low, and he is significantly impaired across a range of domains including reasoning, understanding of social norms, attention span and impulse control, memory, executive functioning and adaptive functioning, among others. These cognitive deficits are likely exacerbated by mood disorders and Post Traumatic Stress Disorder.
·Second, it appears that Mr Anyoun has never received appropriate support or treatment in the community for these deficits.
·Third, much of Mr Anyoun’s offending can also be linked to his significant history of substance dependence, particularly on cannabis and (in one period) crystal methamphetamine.
·Fourth, in addition to his traumatic upbringing in [what is now] South Sudan, Mr Anyoun has suffered very significant disadvantage since arriving in Australia. He has experienced limited educational attainment (at least in part due to his undiagnosed cognitive deficits), multiple periods of homelessness and psychotic episodes.
·Fifth, Mr Anyoun’s serious offending was confined to a finite period of time when Mr Anyoun was a young person, between the ages of 19-20.
Mr Farhall also submitted that Mr Anyoun was himself a victim of serious assaults when in custody in 2012 and 2015 which resulted in the Applicant spending the majority of this time in solitary confinement or protective custody.
Primary consideration: Protection of the Australian community (13.1)
The Direction states that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (13.1.1)
The Tribunal noted the extensive criminal history that is set out in the Certificate, partly reproduced above. The Tribunal considered an incident which took place on 24 November 2012 when Mr Anyoun was in custody at the Metropolitan Remand Centre, Ravenhall. An account of the incident was at SRD p 1. On this day, the Applicant had an exchange with a prison officer about failing to do his cleaning duties which led to the officer ‘firing’ Mr Anyoun from these duties. Shortly afterwards, Mr Anyoun approached the prison officer from behind with a laundry container and proceeded to pour boiling water over the head of the officer, which spilt down over his scalp, upper back, neck and the right side of his face. The officer was taken to hospital and a medical examination found that he had thermal hot water injuries to his head, right cheek, right ear and upper back and chest. The incident report stated that the prison officer has scarring and clinical symptoms of a post-traumatic stress disorder as a result of this encounter.
The Direction explicitly states, that decision makers should have regard to the principle, at paragraph 13.1.1(1)(a) that violent crimes are viewed very seriously and the principle at paragraph 13.1.1(1)(b) that crimes against government officials due to the position they hold or in the performance of their duties (such as the prison officer) are serious. Added to this, there was a separate incident on another occasion where Mr Anyoun punched a prison officer in the face.
Mr Anyoun was questioned about the November 2012 incident by Dr Lindsay Vowels, registered psychologist, when she examined him on 13 March 2014 at the Remand Centre. Dr Vowels’ report was at RD p 60.
When questioned about this incident in the hearing, Mr Anyoun said he was “hearing voices, was under pressure. The prison officer was calling me names. I threw boiling water on him.” When asked why, he gave a one word answer: Stupidity. Mr Farhall reminded him that, on an earlier occasion, someone had poured boiling water on the Applicant. Mr Farhall asked him why, then, would he do it to someone else. Mr Anyoun responded “I wasn’t thinking, I hadn’t had antidepressants that day.” The Applicant was placed into solitary confinement as a result of this incident.
The Tribunal had before it incident reports of Corrections Victoria relating to Mr Anyoun’s period of imprisonment at HM Prison Barwon. In summary, they recorded the following incidents against the Applicant’s name, which were not disputed at the hearing –
·On 1 October 2016 was non-compliant in returning to his cell and when ordered to enter his cell assaulted a prison officer with multiple punches to the side of the officer’s face.
·On 14 October 2016 destroyed a telephone.
·On 1 November 2016 verbally abused prison staff and refused to comply with direct instructions.
·On 21 November 2016 smashed and destroyed a kettle and a fan in his cell.
·On 27 November 2016 was asked to end a phone call and in response smashed and destroyed the telephone.
·On 28 December 2016 in response to being asked to wait a couple of minutes before returning to his cell, smashed a telephone.
·On 26 January 2017 was asked to end a phone call and in response smashed the telephone and destroyed the handset.
·On 26 January 2017, when being escorted in handcuffs, spat in the face of a prison officer.
I have omitted some of the other entries, the details of which were disputed by Mr Anyoun in evidence, but note he conceded that he had “smashed four phones”.
Mr Anyoun admitted in cross-examination that he had set a fire in his cell, on a day when other prisoners did the same thing. He denied this was a coordinated effort, saying he did it of his own volition.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)
Mr Farhall submitted that the principal point of difference between the parties was the risk the Applicant poses to the community. He submitted that this risk should be evaluated in a proper context and that Mr Anyoun’s offending was directly related to his cognitive deficits, that it occurred when he was young when his circumstances were marked by dislocation, including attempts to place him in schools when he arrived in Australia, some of which would not accept him because of the behavioural challenges Mr Anyoun brought, and that his behaviour has been exacerbated by long periods in solitary confinement.
Mr Farhall submitted that the circumstances have now changed, because the Applicant’s medical condition had now been diagnosed and he was receiving treatment, and if the mandatory cancellation of the visa was revoked, Mr Anyoun would have support from Ms Higgs and her family, and from his own family.
Mr Farhall made submissions that there had been a dearth of treatment for Mr Anyoun when incarcerated and that his offending has been affected by the treatment, or the lack of treatment, he has received. He noted that the Applicant was supposed to be assessed for a Justice Plan while in gaol, but that this did not occur. In terms of Mr Anyoun’s behaviour in prison, Mr Farhall said this should not be interpreted as a reliable guide of how the Applicant would behave outside, because the twin effects of long periods of solitary confinement and isolation from his family were contributors. Mr Farhall noted that the occasions where Mr Anyoun had destroyed telephones should be viewed in the context of his frustration at limited contact with his family.
Ms Briffa submitted that it should be noted that the Applicant had never been released on parole. She pointed to some evidence of Mr Anyoun in the hearing when he was taken through some of his offence records, where he disputed details, said ‘the police were lying’ and in one case said a witness had been paid to make accusations against him. The Respondent noted that on several occasions during his evidence, Mr Anyoun denied past offences put to him, and only admitted them when he was pressed and the details set out.
The Tribunal notes that a certain amount of the Applicant’s evidence was inconsistent. I do not conclude that Mr Anyoun was being disingenuous or even deliberately untruthful, because there is sufficient medical evidence before me in the test results undertaken by Dr Vowels and Dr Scally that the Applicant has not only comprehension deficits but also significant memory deficits. I note that Mr Farhall submitted that Mr Anyoun did not watch television programmes because he could not remember how a story unfolded. The Applicant himself said he had trouble reading, for the same reason.
The Tribunal heard significant evidence from Ms Higgs and Mr Hall about a document called a (Draft) Service Coordination Plan – Personal and Clinical Recovery Goals (Support Plan) which had been developed for the Applicant, as a pathway to help him re-adjust in the community. Ms Higgs gave evidence that she had obtained the template from Mr Hall and had gradually constructed the Support Plan during periodical visits she made to Mr Anyoun when he was in custody.
Although Mr Hall said he did provide the template, in his evidence he said he had not discussed the Support Plan with the Applicant, but planned to do it when he next saw him. When the Respondent raised with him that there was no mention in the Support Plan of how to tackle the Applicant’s previous substance abuse problems, Mr Hall responded that was a “good point”.
Both Mr David Anyoun and Mr Michael Anyoun were asked whether their brother had ever discussed his drug-taking with them, and both said in evidence that he had never raised the issue at all. While this may speak of embarrassment by the Applicant, it also indicates denial of what was a significant precipitator of his robbery offences and his general criminal conduct.
In a Mental Health Social Work Report dated 28 September 2013, Mr Hall recorded that, at that time, he assessed Mr Anyoun’s likelihood of re-offending as “Very High”. He told the Tribunal that he applied an override on the raw results and told the Tribunal that he did so because it was his considered view that if the Applicant had been released without help and support, he would re-offend. He told the hearing that he had not assessed Mr Anyoun’s risk of recidivism since writing this 2013 report. He also said he was unaware of incidents that had occurred while Mr Anyoun had been in prison. Mr Hall said if the Applicant was still taking drugs, or resumed taking them, it could be a ‘big risk factor, depending on the kind of drugs’ but that people can use pharmacotherapy and not get into a drug cycle.
Ms Briffa put to the Applicant that he had been taking heroin intravenously, which he denied. However the Tribunal had before it medical reports in the summonsed documents indicating that Mr Anyoun has been prescribed a course of methadone, an opioid used as tapering therapy for persons with an opioid addiction.
Dr Scally gave evidence to the Tribunal that she had undertaken a telephone assessment of Mr Anyoun; it had been planned as a face to face assessment but her prison visit had been cancelled at short notice. Her report dated 31 May 2017 was before the Tribunal. Dr Scally found:
His current performances on verbal intellectual tasks collectively fell within the extremely low range…
At the subtest level [the Applicant’s] verbal knowledge, abstract verbal reasoning and understanding of social norms and conventions were in the borderline range which is significantly below the level expected for his age and educational level.
She found his auditory immediate attention span was “significantly reduced relative to his same-aged peers and fell within the extremely low range. He was only able to reliably repeat up to three numbers recited to him.”
The Tribunal finds on the evidence that there is a significant risk to the community if the Applicant re-offends. His past crimes have been violent. His cognitive deficits do affect his reasoning and insights. Ms Higgs’ own evidence was that she had to evict him from staying at her house after he became physically aggressive towards her. There is clear evidence of his inability to manage his own anger; that this may be frustration from an assumed acquired brain injury, does not diminish that this is a fact, and regrettably a consistent fact. It is a reasonable assertion that his long periods in solitary confinement have added to this inherent frustration that Mr Anyoun has, which manifests in anger, but the reasons he has been placed in solitary confinement have been because of his own conduct, much more than they have been to protect him from other prisoners.
The Support Plan prepared for him is good-intentioned but somewhat inchoate and it omits significant elements, such as how to manage his substance abuse. It is rightly sub-headed as a ‘goal’ document. It is an aspirational and somewhat skeletal guide of avenues of support Mr Anyoun might avail himself of. Unfortunately a number of these avenues of support were available before, such as his brothers, Ms Higgs, Mr Hall and support from organisations such as Jesuit Social Services, and nevertheless Mr Anyoun still re-offended. I consider, on the evidence before me, that there is a high likelihood that the Applicant will re-offend.
The Tribunal finds that, having regard to the nature and seriousness of Mr Anyoun’s conduct as well as the significant risk he poses to the Australian community should he reoffend, the primary consideration of the protection of the Australian community weighs very heavily against revoking the mandatory cancellation decision.
Primary consideration: Best interests of minor children in Australia affected by the decision (13.2)
Mr Anyoun has no children of his own but his brother, Mr David Anyoun, has three sons and there was evidence before the Tribunal that they were close to their uncle. These children are all minors and their close relationship with the Applicant places them in the category of children whose interests should be considered in weighing this consideration. The Respondent’s statement conceded that it would be in their best interests for the mandatory cancellation of Mr Anyoun’s visa to be revoked.
Mr David Anyoun told the Tribunal how, in Sudanese culture, his brother was like a ‘second father’ to his sons. When asked what effect there would be on his children should the Applicant be deported, Mr David Anyoun said it would probably not have much impact on his youngest son because of his age, but his other two sons would miss their uncle very much. The Tribunal accepts Mr David Anyoun’s genuine and moving evidence.
Part of Mr David Anyoun’s written statement, before the Tribunal, is particularly relevant:
The applicant has a strong relationship with the three boys. He loves them very much and they love him too. They are always asking about him, wanting to visit. They love to play with him at the MIDC. He understands that he is their uncle and they would be majorily [sic] impacted if Garang is deported. They would miss him because of their relationship as it is now. But I also know that they will miss it as they grow up and need family members to support them as children. As we don’t have other family in Australia this would be particularly devasting [sic].
I note that the delegate recorded that Ms Pante, Mr David Anyoun’s partner and the mother of their children, stated that the Applicant “wishes to be a good example to his three nephews and help in their upbringing”. I accept that Mr Anyoun desires to be a positive role model to these three young family members, but, objectively, his conduct has not been a good example to them.
Taking all this into consideration, the Tribunal finds that this primary consideration weighs in favour of revoking the mandatory cancellation of the visa, but not heavily so, given the stipulations in paragraph 13.2(4)(a) that less weight should generally be given where the relationship is non-parental; and in paragraph 13.2(4)(b), where the extent to which the non-citizen is likely to play a positive parental role in the future is taken into the consideration.
Primary consideration: Expectations of the Australian community (13.3)
Paragraph 13.3(1) of the Direction states:
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 whether 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 regard.
In the recent Federal Court decision of YNQY v Minister for Immigration and BorderProtection [2017] FCA 1466, in considering this particular part of the Direction, Mortimer J held at [76]:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
While there is no doubt that this primary consideration and the primary consideration relating to the protection of the Australian community are closely linked, I believe it would be a wrong interpretation of Her Honour’s reasons for the Tribunal to dwell too heavily on the first sentence in this passage and thereby potentially fall into error by approaching the weight of this consideration as some sort of automatic ‘tick box’ against an Applicant, even though the use of the word ‘expectations’ in this part of the Direction may be considered to be somewhat tendentious. It is requirement in the Direction that this primary consideration be weighed, in relation to all the other mandatory parts of the Direction, and other relevant considerations outside the scope of the Direction, which is the important part of the decision-maker’s duty.
The Respondent submitted that the violent and frequent circumstances of the Applicant’s offending are such that the community would ‘expect’ his visa to be cancelled. The Tribunal notes that, from the time of his first appearances before the children’s courts in 2010, Mr Anyoun received certain sanctions designed by the justice system to deal proportionately with juvenile crime, taking account of the immaturity of the offender. Regrettably, these sanctions appear to have had little effect on the Applicant’s subsequent conduct, because he continued to offend, and his offending became more serious.
On 30 April 2014 at the County Court, when passing sentence on the Applicant, His Honour Judge Maidment said (RD p 29):
…the first indictment involves you using a credit card that was stolen a few hours previously in the course of another robbery and your participation in an armed robbery and attempted armed robbery on soft targets, with others… They are offences which cause a good deal of concern, harm to the victims, not just in terms of physical harm, but in terms of the fear that is instilled and the emotional damage that is done which can last for a very considerable period of time after the offence.
And, later on (RD p 31):
It is noteworthy that you have acquired for a young man a bad criminal record with some serious criminal offences including intentionally causing injury and recklessly causing injury, recklessly causing serious injury and armed robbery.
Weeks after Judge Gaynor of the County Court, in an attempt to make the Applicant change his behaviour had imposed a Community Corrections Order rather than a custodial sentence, Mr Anyoun committed an armed robbery. The Applicant was then sentenced to a prison term, and then made a grievous attack on a prison officer carrying out his duties, inflicting injury and trauma which appears on the evidence to have resulted in lasting injuries to that person. He committed other offences in prison, as well as some disciplinary breaches.
I note that there is some medical evidence of an acquired brain injury, although much of Dr Vowels’ summary of that in her report relies on the Applicant’s own accounts and some of those accounts are somewhat vague. Mr David Anyoun, when questioned remembered an incident when they were children where his brother was hit on the head with a hammer, but had no knowledge of a car accident where the Applicant had apparently hit his head, which the Applicant had reported to Dr Vowels. The Tribunal is, however, satisfied on the evidence that the Applicant clearly does suffer from cognitive deficit. Dr Vowels undertook a range of neuropsychological tests when she examined Mr Anyoun in March 2014 and her conclusion was that his Longstanding Intellectual Abilities are likely to be in the Extremely Low range (RD p 63). She went on to say:
His poor competence at tasks involving speed of information processing, divided attention and sequencing suggest the possible diagnosis of ABI from his two childhood head injuries and subsequent trauma to the head in Australia may be valid, his substance related ABI notwithstanding.
Dr Vowels administered eleven subtests of the Weschler Adult Intelligence Scale, Fourth Edition, and these gave a ‘Full Scale IQ’ of 57 (probable range 54-62).
The Tribunal notes this objective psychological evidence but also was unaware of any evidence that the Courts have, at any stage, found that Mr Anyoun did not understand the consequences of his actions. Judge Maidment referred to Dr Vowels’ report in his Reasons for Sentence and he decided that the Verdins principles (Victorian principles to guide sentencing in cases where an offender has cognitive impairment) were all engaged to some extent and, consequently, the sentence His Honour imposed was not as severe as it might otherwise have been.
I note that, in the hearing, the Applicant was well able to order his thoughts and remember precise dates of particular events both in Egypt before he came to Australia, and since his arrival, albeit that his attention flagged towards the end of his evidence and cross-examination. I accept that there is a strong argument that he may have benefitted from more support in a behaviour modification sense, but that fact is not exculpation for his pattern of criminal conduct.
Mr Anyoun acknowledged the seriousness of his offending in his statement of 2 March 2017 which was before the Tribunal. In his evidence he said that some of his offending occurred when he was on drugs. In terms of his conviction for armed robbery he said he saw a food truck and wanted money, so he asked a stranger, stating to the Tribunal that “I asked him nicely”. He took the man’s wallet, extracted the money he wanted, and returned the wallet to its owner. Mr Anyoun said the police said he had a knife, but he could not remember, but then went on to tell the hearing: “I regret that day. I wish I hadn’t done it. He was minding his own business and someone pulled a blade on him.”
I consider that Australians are fair-minded, and supportive of rehabilitation, but the pattern of Mr Anyoun’s violent conduct, in the community and which continued when incarcerated with two attacks (one of them heinous) he made on prison officers, satisfies me that the expectations of the Australian community would be that he not be permitted to retain a visa. I find that this primary consideration weighs heavily against the Applicant.
Other consideration: International non-refoulement obligations (14.1)
Mr Farhall submitted that Mr Anyoun faces “significant harm if returned to South Sudan, up to and including death”. He said there was a real risk that Mr Anyoun would be arbitrarily deprived of his life or suffer cruel or unusual punishment if returned to his country of birth. He said that, because of his cognitive deficits, Mr Anyoun has limits in assessing, understanding and facing risks and limitations on his actions, and that, because of these limits, he was at greater risk in South Sudan than other members of the community.
Both parties noted that, as a result of the judgment in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456, the Tribunal cannot ignore the consideration of international non-refoulement obligations on the basis that an Applicant could make a valid application for another visa if the mandatory cancellation were not revoked (as is suggested by para 14.1(4) of the Direction). In this regard, the Respondent also drew the Tribunal’s attention to Direction No. 75, made by the Minister for Immigration and Border Protection on 5 September 2017 and which took effect on 6 September 2017. Relevantly, Part 2 of Direction No. 75 says:
In considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out below.
1)The decision-maker must first assess the applicant’s refugee claims with reference to section 36(2)(a) and any complementary protection claims with reference to section 36(2)(aa) before considering any character or security concerns. Where a decision-maker finds the claims do not meet the refugee or complementary protection criteria, the decision-maker must refuse to grant the visa.
Ms Briffa drew the Tribunal’s attention to the recent decision of Re HGBY and Minister for Immigration and Border Protection [2017] AATA 2824 where Member Kennedy stated at [157]:
It is now settled that I must assess any international non-refoulement obligations that might arise if HGBY is returned to Country A. In this regard, the Full Court in Minister v BCR16 [2017] FCAFC 96 set aside a decision of an Assistant Minister who had followed the approach set out in the Direction, albeit not bound by the Direction itself, to the effect that it was considered unnecessary to determine whether non-refoulement obligations are owed to a non-citizen where that non-citizen could make a valid application for another visa, relevantly, of course, a protection visa.
The Tribunal in that case went on to say that his assessment of this consideration would, necessarily, be abridged. Relevantly, Deputy President Kendall said in Re HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802, at [89]:
In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
I agree with this approach. It is necessary for me to consider this part of the Direction, but the scope and depth of that consideration is limited to the material that is before me.
Mr Farhall submitted that it was not disputed that Mr Anyoun is a member of the Dinka ethnic group, a group ‘which is particularly at risk.’ This claim would seem to be corroborated by the DFAT Country Information Report South Sudan, dated 5 October 2016, which states:
While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and the Sudan People’s Liberation Movement-in-Opposition.
The Tribunal notes the submissions of the Respondent that there are areas of South Sudan which are ‘safer’ for Dinka, but objectively the situation in what may be regarded as a state experiencing great upheaval, if not a failed state, for any person returning there would be greatly challenging. It is not clear to me, given the passage of time, whether the fact that the Applicant’s father was (or perhaps still is) a judge might elevate his personal risk situation above that of general members of the population in his ethnic group and expose him to, in the words in paragraph 14.1 “risk of a specific type of harm”, and I make no finding in that regard.
I have carefully considered the submissions of the Applicant about what may face him in South Sudan but, without for a moment diminishing the perilous current nature of the polity of that country, I find that, on the information before the Tribunal, risks he would face are general; they would not be specifically directed at him personally. Objectively, the situation in South Sudan may weigh in favour of revoking the decision to cancel Mr Anyoun’s visa, but the question for the Tribunal is whether this conclusion in relation to what is stipulated in the Direction to be an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations. I find that two primary considerations do outweigh this secondary consideration but make clear that this conclusion should not be seen as any comment by the Tribunal on the prospects of any future protection visa application.
Other consideration: Strength, nature and duration of ties (14.2)
The Applicant’s Statement of Facts, Issues and Contentions said that Mr Anyoun “has strong and significant emotional ties to Australia. He has no ties, familial or otherwise to South Sudan.” The Tribunal notes that the Applicant came to Australia in 2008 aged 16 and has lived in Australia since then, as have two of his brothers, Mr David and Mr Michael Anyoun. As mentioned above, Mr David Anyoun is married and has three sons, nephews to the Applicant. The Tribunal also heard from Ms Chantelle Higgs, a social worker who has had a long involvement in supporting Mr Anyoun, including inviting him to stay with her and her family for a period. The Tribunal was impressed by her genuineness and notes the written statements before it from other members of her family about their interactions with Mr Anyoun. It is clear they have been very supportive, in quite an altruistic way, towards him.
The Tribunal was impressed by the tenor of the evidence given by the Applicant’s brothers, who clearly love Mr Anyoun and are naturally distressed by the situation he is in. In expressing this view, I do have to take into account that there is certain important information that the Applicant has kept secret from them, including his drug-taking and the pattern and nature of his offending. I also have to take into account their practical ability to help him, should he be permitted to stay in Australia, given that Mr David Anyoun told the Tribunal he works regularly interstate, and Mr Michael Anyoun is engaged in his tertiary studies.
The Tribunal has no reason not to accept the uncontested evidence that a number of the Applicant’s siblings died in tragic circumstances in Sudan. As mentioned, Mr Anyoun gave evidence that when he was young his father was a police officer but he later became a judicial officer. He said because of his father’s employment, the family moved around a great deal, which had an effect not only on the stability of their home life but on his education. Mr David Anyoun said that he had some contact through social media with a sister who now lives in Cairo, but he did not know the whereabouts of his parents and had not heard from them for many years. He was almost 15 when he and two of his brothers were taken by their aunt to Egypt and he remembers pressures on the family owing to his father’s role as a judge, including people coming to their home demanding the release of prisoners or making other approaches relating to their father’s official role.
The Tribunal finds that these circumstances all combine so that the Applicant’s real ties are with his brothers, sister-in-law and nephews in Australia and other supportive friends, especially Ms Higgs and her family. Practically, the Applicant has no, or very tenuous, ties with South Sudan.
Paragraph 14.2 of the Direction requires the Tribunal, in considering this factor, to give less weight where the non-citizen began offending soon after arriving in Australia. This is the case with Mr Anyoun, as the Certificate shows (at RD p 26), his first children’s court appearance was for motor vehicle theft (and other offences) and took place in September 2010, and his offending has continued steadily since that time, escalating in scope and violence. As a result, the Tribunal finds that this consideration weighs only very marginally in favour of revoking the mandatory cancellation of the Applicant’s visa.
Other consideration: Impact on Australian business interests (14.3)
The Tribunal considered this factor and finds that this consideration in the Direction is not relevant to Mr Anyoun’s application; there is no discernible impact on Australian business interests of the decision to revoke his visa.
Other consideration: Impact on victims (paragraph 14.4)
This consideration is only relevant, as stipulated in the Direction, where information is available, in relation to a decision not to revoke the cancellation of Mr Anyoun’s visa, on the victims of his offending or family members of the victims of his offending. No such information was before the Tribunal so the Tribunal did not consider this consideration further.
Other consideration: Extent of impediments if removed (14.5)
In assessing the extent of impediments Mr Anyoun may face in establishing himself and maintaining basic living standards in South Sudan, the Tribunal must take into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
The Respondent noted that the medical support available in South Sudan for Mr Anyoun would potentially be inadequate. In his submissions, the Minister states:
It is unknown what family support the applicant would have in South Sudan is [sic] he were removed there. The Minister also concedes that the applicant would find it difficult to obtain treatment for his depression, anxiety and other health conditions, and would face some difficulty establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens in South Sudan) if he were removed.
The Respondent recorded, and the Tribunal notes from the summonsed documents, that Mr Anyoun has been administered a course of treatment for Hepatitis C, but also that this treatment should lead to a containment of the disease. Such medication may be difficult to obtain in a state such as South Sudan. The Department of Foreign Affairs and Trade (DFAT) Travel Advisory for South Sudan (accessed February 2018) states:
Medical facilities
Medical facilities are basic in Juba and inadequate elsewhere. Specialised doctors, surgeons and operating facilities are inadequate in Juba and do not exist elsewhere. Doctors and hospitals generally require up-front payment before commencing treatment. In the event of a serious illness or accident, medical evacuation to a destination with the appropriate facilities (such as Nairobi or Kampala) would be necessary. Medical evacuation costs could be considerable.
In her report, Dr Scally said she had not assessed Mr Anyoun’s risk of re-offending in the tests she undertook but, while she had not been able to undertake formal assessment of his executive functioning, she said:
It should also be noted that [Mr Anyoun] demonstrated poor insight and/or lack of concern into his present serious circumstances and he was not able to generate any ideas or strategies as to how he may cope when deported to South Sudan. This was despite acknowledging that his current medication is helping with his psychological condition and that he will be unable to obtain these medications in South Sudan.
In terms of the abilities of Mr Anyoun, the Respondent submitted that the Applicant is young and fluent in Arabic and, while acknowledging the neuropsychological test results reported by Dr Vowels, that he has nevertheless been able to find work in Australia (the Applicant gave evidence of working in a meat-processing facility) and obtain a learner driver permit. The Tribunal also noted during the hearing that Mr Anyoun was reasonably articulate in English and able to understand the proceedings.
The Tribunal considers, on balance in particular because of the lack of medical support in South Sudan which, because of the likely difficulties obtaining medication, would have a specific (not general) effect on the Applicant, this secondary consideration weighs in favour of revoking the mandatory cancellation of Mr Anyoun’s visa.
Conclusion
Mr Anyoun came to Australia from Egypt after leaving his home country, which was torn by strife, with his two brothers. Regrettably, from a young age, some two years after arriving in this country, he commenced criminal activities which have escalated, and of which several instances have been particularly violent. His apparent cognitive limitations may have contributed to part of that behaviour, but they do not excuse it. The fact that his two brothers, who experienced the same traumatic exposures in their formative years, including several years in effective limbo in Egypt before coming here, have been able to establish themselves as good residents of Australia stands in stark contrast to the path and record of criminal conduct taken by the Applicant.
The evidence put forward about strategies that would be initiated to support the Applicant is laudable but the Tribunal was not given great confidence that these strategies would be effective. The not insubstantial risk factor was frankly acknowledged by witnesses called in the Applicant’s support, including those directly involved in formulating these strategies.
Although the visa he received to permit him to come to Australia was rightly issued for humanitarian reasons, it is, like all visas, a revocable permission to reside in Australia. It is the Tribunal’s conclusion, after careful consideration, that the protection of the Australian community and the expectations of the Australian community, which weigh heavily against the Applicant, applying paragraph 8(5) of the Direction, are primary considerations which do outweigh the other primary consideration and some secondary considerations which weighs towards him in this review.
Overall, the Tribunal finds that, having regard to all of the primary considerations and other considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of Mr Garang Simon Anyoun’s visa.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
.............................[sgd]...........................................
Associate
Dated: 14 February 2018
Dates of hearing: 2 & 8 February 2018 Counsel for the Applicant: Mr Timothy Farhall Advocate for the Applicant: Ms Susan Brown Solicitors for the Applicant: Flemington & Kensington Community Legal Centre Inc Advocate for the Respondent: Ms Ashlee Briffa Solicitors for the Respondent: Australian Government Solicitor
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