Asad and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4321
•14 December 2022
Asad and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4321 (14 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7816
Re:Adam Asad
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:14 December 2022
Place:Sydney
The Tribunal finds that the correct and preferable decision is that the decision under review is affirmed.
..................................[SGD]......................................
The Hon. Dennis Cowdroy AO KC, Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – non-refoulement – strength, nature and duration of ties to Australia – impediments to removal – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bartlett and Minister of Immigration and Border Protection (Migration) [2017] AATA 1561
Re Yates; Ex parte Walsh (1925) 37 CLR 36
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCAFC 185
Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
SRKB and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4390
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
14 December 2022
The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) made on 20 September 2022 (the decision under review) not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the original decision made under subsection 501(3A) of the Act, on 1 November 2021, to cancel the Applicant’s Class BB Subclass 155, Five Year Resident Return Visa (the visa) (the original decision).
The delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more and was 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 Territory: see subsection 501(3A) and paragraphs 501(6)(a) and 501(7)(c) of the Act.
On 26 November 2021, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act (that is, the original decision).
On 20 September 2022, a delegate of the Minister decided not to revoke the original decision (that is, the decision under review). On 23 September 2022, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 8 and 9 December 2022 using the Microsoft Teams platform.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration A);
(b)whether the conduct engaged in constituted family violence (Primary Consideration B);
(c)best interests of minor children in Australia (Primary Consideration C); and
(d)expectations of the Australian community (Primary Consideration D).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
extent of impediments if removed;
impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Facts
The Applicant, who is 41 years of age, was born in Iraq. The Applicant is a citizen of Iraq. He arrived in Australia by boat using a false passport, having travelled through Malaysia and Indonesia.
evidence
Statements
The Tribunal has had regard to a statement of the Applicant dated 18 November 2022, a letter from the Applicant’s niece MA addressed to the court dated 13 October 2021, a statement of the Applicant’s brother FA dated 1 December 2022 and a letter dated 12 October 2021 from MH who operates a bakery.
Oral evidence
The Tribunal heard oral evidence from the Applicant and from the Applicant’s eldest brother, FA.
Medical evidence
the Tribunal has been provided with a report of Ms Alison Cullen, psychologist dated 30 September 2021.
Applicant’s Criminal history
A schedule of the applicant’s criminal convictions is set out hereunder:
As a consequence of his convictions, the Applicant received repeated sentences of imprisonment, in respect of the convictions referred to in the above schedule.
Sentencing observations
The Tribunal has considered sentencing observations in relation to these convictions.
Judge Still – Drug Court of New South Wales, 28 November 2018
The Applicant appeared before Judge Still when he was exercising the jurisdiction of the Local Court for breach of bonds. The first breach related to goods in custody, a charge which dates to 31 August 2017 for which he received a bond on 28 November 2017. He also received another bond on the same day relating to an intimidation charge involving an altercation with his brother. The Applicant took hold of a kitchen knife but did not use it against his brother. Another charge related to driving while disqualified and a further charge related to the fact that he had parked illegally when he reported on bail to the police were also the subject of the proceedings. He parked his vehicle in a ‘police only’ parking bay. Further charges arose relating to driving, having on his possession a small quantity of ‘ice’ and having a Stanley knife with a razor blade in the driver’s side door.
His Honour stated:
In relation to his criminal history, it is limited. It does not really start until 2014 where we have matters of goods in custody and shoplifting and then a possess drug charge in 2017. After that he has received a number of sentences, some of which have been subsumed in the bonds that are now the subject of breach and his only matter of violence appears to be the matter I have already referred to for which he received a s 9 bond in relation to his brother. So it is a very limited history.
I accept what I am told by Mr Bloomfield on his behalf that he is originally from Iraq. I think he said he came here in the year 2000. That he has lost his family in Iraq due to the violence in that country. That he has become addicted to ice in about 2015 and clearly that addiction corresponds with his criminal history. It is also the case that in relation to the breach of bonds they were breaches both way of report from Community Corrections and also by way of re-offence.
Judge Still sentenced the applicant to 8 months imprisonment but suspended the sentence provided the applicant remained on the Drug Court program.
Senior Judge Dive – Drug Court of New South Wales, 31 January 2019
The Applicant appeared before Senior Judge Dive to receive a final sentence from the commencement of the Drug Court program on 28 November 2018, as set out above. His Honour noted:
I think the task of the Court today is to come up with a just an [sic – and] appropriate sentence for the cases that are now before me, which do not include the stalk and intimidate matter; and work out an appropriate backdate. In my view, that should be reflected by today’s sentence being backdated to 5 October 2018, so, notionally, attributing a one month sentence to the breach bond for the stalk and intimidate, which was summarised by Still J.
I have been urged to consider special circumstances in this case. The issues on that go two ways. Firstly, Mr Asad has been totally unsuccessful in being able to manage in the community, and engage in the recovery program here at the Drug Court; and his total sentence is a short one. I’m prepared to marginally adjust the relationship, whereby there will now be a total non-parole period of five months, and the total sentence will be eight months.
Judge O-Brien AM – District Court of New South Wales, 22 October 2021
The Applicant appeared before Judge O’Brien in the District Court of New South Wales Criminal Jurisdiction for sentencing in relation to the offence of aggravated break and enter and commit serious indictable offence. His Honour outlined the facts underpinning the offence and stated that the Applicant ‘is responsible for all the acts committed as part of that joint criminal enterprise’. After assessing the general principles and objective seriousness of the offence, as well as the Applicant’s subjective case and other factors, His Honour sentenced the Applicant to a term of imprisonment for a total period of two years and three months imprisonment with a non-parole period of 15 months.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by section 501 of the Act: subparagraph 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: subparagraph 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should also have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), this consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to subparagraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted involved repeated offending.
Regarding the Applicant’s most recent offending – On 29 October 2019, the Applicant, together with others, attended the victim’s house following an earlier visit by his co-offenders that day. The facts state that the Applicant remained in the car while the others broke into the house and committed a serious indictable offence namely larceny in circumstances of aggravation knowing that the person was present in the dwelling house. The method of entry was by smashing a front window. A small quantity of drugs and miscellaneous items was stolen. The offence was premeditated as the plan was formulated in a house in Cabramatta West. The Applicant acted as the getaway driver. At the time of such offence the Applicant was on conditional liberty being the subject of nine Intensive Correction Orders. On 22 October 2021 the Applicant was sentenced in the District Court of New South Wales for aggravated break and enter and commit serious indictable offence for a term of two years and three months imprisonment.
The Applicant has been sentenced to terms of imprisonment for offending on numerous occasions since 2014 thereby displaying a disregard for the Australian law. The Applicant has been involved in repeated offending. He has had his driving licence disqualified, been referred to drug and alcohol rehabilitation, had supervision orders and received suspended sentences of imprisonment and served terms of imprisonment. Despite these offences, the Applicant’s offending has continued.
A report dated 29 June 2018 refers to the breach of a good behaviour bond noting that the applicant failed to report several times in breach of his good behaviour bond. There is also evidence that the Applicant failed to attend for a court hearing.
On 28 November 2018, the Applicant was sentenced In Parramatta Drug Court for possess prohibited drug, custody of knife in public place – first offence, drive motor vehicle during disqualification period (three counts), goods in personal custody suspected being stolen and stalk/intimidate intend fear physical harm (domestic). For these offences the Applicant was sentenced to 8 months imprisonment as referred to by Judge Still.
Whilst in prison the applicant has been involved in several incidents. On 25 October 2018 the Applicant and another person were involved in an altercation. On 14 January 2019 the Applicant with other inmates entered and exited the cell of another prisoner who became the subject of an alleged assault which was recorded on CCTV. The Applicant has been the subject of multiple sanctions. 3 June 2020 the applicant flooded his cell. On 19 June 2020 the Applicant received an institutional misconduct charge after he defecated on the floor and during the term of his imprisonment he was described as a ‘poor worker’ in need of constant supervision.
If the Applicant were to reoffend, there is a real risk of him engaging in further conduct, especially where drugs may be involved. He has already been involved in one instance of family violence committed against his brother. Although the brother requested that no police action be taken, a apprehended violence order was issued to the Applicant.
The applicant has committed numerous driving offences. He has been found to have driven on more than two occasions whilst his licence was disqualified. The driving record is indicative of the applicant’s disregard for the law. In the Bartlett and Minister of Immigration and Border Protection (Migration) [2017] AATA 1561(Bartlett) at [45] the Tribunal said:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
The Tribunal considers that the Applicant’s driving history is such as to reflect the same disregard as referred to in Bartlett. In particular, the Tribunal notes that with respect to the last offence which has led to the incarceration of the Applicant, he had, according to the submissions made before the court, a substantial quantity of drugs before he drove the vehicle in the joint criminal enterprise. The risk to the community is obvious yet no regard appears to been paid to this risk by the Applicant.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant has engaged in repeated offending;
(b)Such offending involves the use of drugs and has involved drug addiction; and
(c)at the time that the Applicant committed offences, he was the subject of existing bonds.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. The Tribunal notes the content of the report of the psychologist, Ms Cullen dated 30 September 2021.
Report of Ms Alison Cullen, psychologist
Ms Cullen provided a report for use in court dated 30 September 2021 in respect of the charges of aggravated break and enter and commit serious indictable offence.
The report was prepared following interviews with the Applicant conducted by AVL and by telephone. Ms Cullen did not appear before the Tribunal.
The report refers to a significantly traumatic and deprived childhood. He is one of 14 children and he lost his parents at age one. He left Iraq at age 17 and embarked upon a refugee journey which took approximately four years before he arrived in Australia via Malaysia. Ms Cullen considered that the Applicant satisfied the DSM – 5 diagnostic criteria for post-traumatic stress disorder, severe amphetamine-type stimulant use disorder, severe opioid-related disorder and moderate gambling disorder.
The report concludes:
In addition to sustained remission, Mr Asad represents with other protective factors that support promising prognosis, address his criminogenic needs (as identified on the LSI-R) and therefore reduces risk of recidivism, namely: demonstrated insight into the relationship between drugs, crime and interpersonal difficulties; his insight into the need to resume working (which he has already done while in custody); a prospective job offer upon his release; favourable attitude towards help-seeking in addition to having undertaken drug-related courses while incarcerated; stable accommodation in a different geographical location, upon his release; some familial support networks; his desire to distance himself from antisocial/drug-using associates; and (genuine) contrition and shame regarding his behaviours.
The long history of offending which has shown an increase in seriousness, indicates that the Applicant has taken no heed of his previous offences and convictions. The Applicant’s last offence involves an aspect of greater criminality than his previous offending. The Applicant is addicted to drugs and gambling. These factors suggest that the Applicant, who has not rehabilitated himself and who has no lawful means of support other than Centrelink payments, will resort to offending in the future to satisfy his drug habit. There is both the likelihood of further offences being committed by him, with possible serious consequences. These factors together render an unacceptable risk of the Applicant remaining in Australia as considered in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
Even if the Applicant did not directly take part in the last offence in that he only drove the motor vehicle which was used for the illegal joint enterprise, the fact is that he drove it after he had consumed drugs. It is therefore highly likely that he was under the influence of drugs when driving.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines ‘family violence’ to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (subparagraph 8.2(2)(a)); and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (subparagraph 8.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
(a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (subparagraph 8.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (subparagraph 8.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (subparagraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (subparagraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (subparagraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub paragraph 8.2(3)(c)(iii)); and
(iv)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (subparagraph 8.2(3)(d)).
The Applicant has engaged in family violence. On 28 November 2018 the Applicant was convicted of stalk/intimidate intend fear physical harm (domestic). The circumstances of this offence surround a dispute which arose concerning rent involving his brother and his wife and the Applicant. The Applicant took a kitchen knife in his right hand and the knife was ultimately dropped. However, the Applicant’s brother reported the incident to police because of his concern for himself and his daughter when he saw the Applicant holding a knife.
Finding on Primary Consideration B
The Tribunal finds that this consideration weighs against revocation of the decision under review.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
This consideration is not relevant to this application as the Applicant has no children.
Finding on Primary Consideration C
This consideration is neutral.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 65 those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is ‘[i]n substance … adverse to any applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]. Her Honour said, referred to the fact that the primary consideration:
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 a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
Finding on Primary Consideration D
In this case, the Applicant’s repeated offending from 2014 involving possession of a prohibited drug, custody of knife in a public place, driving a motor vehicle while disqualified, having goods in personal custody suspected being stolen; and stalk intimidate intend fear and physical harm, and failure to comply with bonds shows a pattern of disregard for the requirements of the Australian law. The psychologist found the applicant had a 31.1% chance of recidivism. There is no evidence to suggest that the Applicant has engaged in any rehabilitation since the preparation of the psychologist report. The applicant attended six sessions of the Remand Addictions Program between 2 September 2020 and 21 April 2021 but he failed to complete the program. The Applicant asserts that he was not able to complete the program because he was relocated to a safer place.
Within the material is a report noting a Risk Mitigation Plan that recommended that the Applicant be referred to a community-based alcohol and/or other drugs service such as the Drug and Alcohol Multicultural Education Centre, referred to a general practitioner for a Mental Health Care Plan and referred to the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. The Applicant has not engaged with such programs and has a significant drug problem. He has used drugs since 2008, mainly methamphetamine and heroin and has been a heavy use of drugs from this time. In 2017 the Applicant admitted using 0.1g of methamphetamine per day. Previous attempts at rehabilitation whilst engaged with the Drug Court Program were unsuccessful, as noted by the sentencing remarks. The Applicant also has a gambling addiction which has existed since about 2015 and spends money on gambling daily up to $200 per day. He states that whenever he has money, he gambles on poker machines.
In respect of the last offence for which the Applicant was convicted, the Applicant claimed that he was not aware that he and his co-offenders were going to break into the victim’s house and steal from him. However, the agreed facts and the Applicant’s evidence record that he was requested to drive others to the house to steal drugs in exchange for methamphetamine. The Applicant shows no real remorse of his involvement in a joint criminal enterprise to break enter and steal from the drug dealer.
In Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316 at [60], McCabe DP said:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
In this case, the repeated offending of the Applicant and the increasing seriousness of the nature of his offending would lead to the conclusion that the Applicant should not remain in Australia. The Tribunal accepts that the Australian community’s expectations would weigh against revocation of the decision under review.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
The Respondent accepts that following the Applicant’s claims made in approximately 2002 and 2005, the Applicant was found to be a person respect of whom Australia owed protection obligations and accordingly a ‘protection finding’ has been made in respect of the Applicant. However, because of section 197C of the Act as amended by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth), removal is not required in respect of an unlawful non-citizen to a country in respect of which a protection finding has been made. The Applicant will not be liable for removal to Iraq unless or until one of the following occurs:
(a)the decision in which the protection finding is made is quashed or set aside;
(b)the Minister decides in accordance with section 197D that a protection finding in relation to the Applicant would no longer be made; or
(c)the Applicant asked the Minister in writing, to be removed.
The Tribunal is required to consider other considerations of non-refoulment obligations separately to the legal consequences of the possibility of indefinite detention: see VNPC vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921. As such, the Tribunal accepts that the Applicant may be detained indefinitely unless the considerations in paragraph 197C(3)(c) apply; that is, the protection finding is quashed, the Minister decides that a protection finding would no longer be made or the Applicant requests removal. However, given the Applicant’s history of offending and the prospect of further serious offending, the primary considerations outweigh any consideration in favour of revocation in this respect.
In reaching such conclusion, the Tribunal is mindful that the Applicant does not respect Australian law, as demonstrated by his repeated offending, and of his failure to observe bonds which have been offered to him. The Applicant has been placed on good behaviour bonds which have been broken. Such factors lead the Tribunal to conclude that cancellation of the Applicant’s visa is not disproportionate, even if the possibility might include indefinite detention. In this respect the Tribunal is also mindful that whether indefinite detention will in fact result, is a matter for the Minister’s discretion as provided by section 195A of the Act: see SRKB and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4390.
The Tribunal considers that such consideration is neutral in respect of revocation.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant has resided in Australia for some 20 years. The applicant may face some impediment if returned to Iraq although pursuant to subsection 197C(3) the prospect of the Applicant being removed to Iraq is by no means certain. The Applicant has departed Australia between 2001 and 2012 on a number of occasions to visit his family members residing in either Iraq or Iran and there would be few language or cultural barriers faced by the Applicant if he returned to Iraq. The Applicant states that he is one of 14 siblings, most of whom have died. However, the Tribunal infers from his several overseas visits that he has at least some friends located in that country. The Applicant has not been receiving any treatment for his diagnosed post-traumatic stress disorder and amphetamine-type stimulant use disorder and his gambling disorder. There is no evidence that treatment for such conditions would not be available in Iraq.
The Tribunal finds that this consideration weighs against revocation of the decision under review.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration would relate only to the impact of the Applicant’s conduct against his brother and sister-in-law arising out of the incident in 2017 when the Applicant was convicted of stalk/intimidate intend physical harm et cetera (domestic). The Applicant’s brother has not provided evidence. However, in PGDX v Minister for Immigration, Citizenship, Migrant Servicesand Multicultural Affairs [2021] FCA 1235 at [80], the Federal Court held that the Tribunal is required to give consideration to the impact on victims where relevant information is available. Neither the Applicant’s brother nor his sister-in-law gave evidence, although they were the victims of the offence. In the absence of their evidence the Tribunal finds that this consideration is neutral.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, 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.
The Applicant has resided in Australia since 2001. The Applicant has engaged in sporadic employment as a baker and a concreter from 2001 to 2008 but no further details have been provided. The Applicant has been a recipient of Centrelink intermittently for approximately eight years before his incarceration in 2019. The Applicant, by such works, has made a minimal positive contribution to the community (see subparagraph 9.4.1(2)(a)(ii) of Direction 90).
The Applicant has three family members living in Australia namely his two brothers and niece. The Applicant was married but the relationship broke down after he was jailed. His wife changed her telephone number and terminated all contact with the Applicant since the Applicant was incarcerated. It appears that the Applicant’s wife is now deceased. The Respondent accepts that the Applicant’s niece may be disappointed if the Applicant is not permitted to remain in Australia but there is no evidence of any impact in relation to the Applicant’s brother, who did not give evidence at hearing.
The Tribunal has been provided with a statement of the Applicant’s oldest brother, FA, who gave evidence at hearing. He states that the Applicant would be living with him and that he would support him to find work and stay sober. He states that the Applicant cannot return to Iran or Iraq as he has no family there as both parents have passed and he has no life there. He states that the Applicant’s wife has passed away leaving him depressed. FA states that he needs the Applicant with him ‘as my carer’.
However, the evidence of the Applicant establishes that the Applicant has two brothers and two sisters who are married and who are living in Iran. The testimony of the witness FA was unreliable and inconsistent. In his statement he said ‘… [The Applicant] can’t go back to Iran or Iraq as he has no family there…’
When this inconsistency was pointed out, FA stated that he understood family meant parents, not siblings. Such distinction is not referred to in his statement, and the Tribunal finds that the statement is incorrect and misleading.
The witness claims to have a close association with the Applicant and treats him as his son. However, the following facts were established in cross examination:
(a)FA only became aware of the Applicant’s breaches the law into 2020 when the Applicant was sent to gaol.
(b)FA was not aware that the Applicant had been in gaol prior to 2020.
(c)FA was unaware of any other breaches of the law committed by the Applicant except the offence leading to the Applicant’s incarceration.
(d)FA did not visit the Applicant whilst the applicant was in gaol because he (FA) was ‘too sick’. However, he is able to work one day per week and has been in receipt of Centrelink disability payments for the past nine years.
(e)FA did not know the wife of the Applicant had left the Applicant until the Applicant told him this. Further he did not know that the Applicant’s wife had apparently died until he was told by the Applicant.
Both the Applicant and FA stated in writing that there were no living relatives overseas. It transpired in the course of oral evidence that both statements were incorrect.
The Tribunal has read the statement of the Applicant’s niece MA which was addressed to the court dated 13 October 2021. In her statement, MA states that the Applicant will live with her if released. MA was not called to give evidence at hearing and accordingly the Tribunal gives her statement little weight.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh strongly in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter as there is no evidence that the Applicant is involved in any business which would be detrimentally affected if the Applicant were removed. (See paragraph 9.4.2(3) of Direction 90).
Mr MB who has signed a letter suggesting the possibility of employment at a bakery. His letter is dated 12 October 2021 and stated would be ‘very happy’ to provide work for the Applicant. Mr MB has previously been involved in breaches of the law.
Conclusion
In weighing the competing considerations and the weight to be given to all relevant other considerations, the Tribunal considers that it is unable to find another reason to revoke the decision under review.
The Applicant does not satisfy the character test. Accordingly, the Tribunal must determine whether there is ‘another reason’ why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities, and the Full Court of the Federal Court of Australia in Viane v Minister for Immigration andBorder Protection [2018] FCAFC 116 per Colvin J at [64] states relevantly:
It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens a statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
The Tribunal is aware that the task of its assessment is to essentially look forward. The Applicant has already been punished for his criminal offending and the purpose of cancellation of the visa is not intended to be punishment, rather is made in the protection of the Australian community. That is the Tribunal must determine whether the continued presence of the applicant ‘would be opposed to the safety and welfare of the nation…’: see Nettle J in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [94]. As explained in Re Yates; Ex parte Walsh (1925) 37 CLR 36, deportation is a means of self-protection in relation to the constitutional functions: see Isaacs J at 94. It is of an administrative nature, not punitive.
For the above reasons, the Tribunal is satisfied that the Applicant’s continued presence would be opposed to the safety of the welfare and of the nation. Accordingly, there is no other reason why the original decision to cancel the Applicant’s visa should be revoked.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review is affirmed.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
.................................[SGD].......................................
Associate
Dated: 14 December 2022
Date(s) of hearing: 8 - 9 December 2022 Date final submissions received: 9 December 2022 Solicitor for the Applicant: Ms M Lewis, Crossover Law Group Solicitor for the Respondent: Ms C Allen, Sparke Helmore Lawyers
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