Ba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 191
•9 February 2022
Ba and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 191 (9 February 2022)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2021/8838 GENERAL DIVISION ) Re: Mouhamadou Ba
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Deputy President Boyle
DATE OF CORRIGENDUM: 10 February 2022
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:
1. At paragraph [180] the following sentence:
However, given the Applicant’s lack of candour and the absence of remorse or rehabilitation, only minor weight should be given to this consideration.
is to be deleted.
................................................................
Deputy President
Division:GENERAL DIVISION
File Number(s): 2021/8838
Re:Mouhamadou Ba
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Member Dr C HuntlyDate:09 February 2022
Place:Perth
The Reviewable Decision, being the decision of the Delegate dated 19 November 2021, not to revoke the mandatory cancellation of the Applicant’s class BB Subclass 155 visa pursuant to 501CA(4) of the Act is affirmed.
...........[Sgd].............................................................
Deputy President Boyle
..........[Sgd]..............................................................
Member Dr C Huntly
CATCHWORDS
MIGRATION – s 501CA(4) of the Migration Act – decision not to revoke mandatory cancellation of visa – Applicant fails character test – Direction 90 considered – Applicant is a citizen of the Islamic Republic of Mauritania – numerous breaches of family violence restraining orders – numerous driving offences – there is not another reason to revoke the visa cancellation – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G
CASES
Ahmed v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 156
Bread Manufacturers of NSW v Evans [1981] HCA 69
BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection [2015] 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
JNMK and Minister for Immigration and Border Protection [2018] AATA 971
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Minister for Home Affairs v HSKJ [2021] FCA 775
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NSWQ and Minister for Immigration and Border Protection [2016] AATA 373
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107
Orario and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4810
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
QKJY and Minister for Immigration and Border Protection [2017] AATA 820
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection [2017] AATA 366
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021)
REASONS FOR DECISION
Deputy President Boyle
Member Dr C Huntly09 February 2022
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 17 November 2021[1] not to revoke the cancellation of the Applicant's Class BB Subclass 155 Resident Return Visa (the Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1]Exhibit R1, Respondent’s Section 501G Documents (G Docs) p 14.
The Visa was cancelled under s 501(3A) of the Act on the basis that the Applicant did not pass the character test by reason of his substantial criminal record and was serving a full-time term of imprisonment for an offence against a law of a State.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE FOR DETERMINATION
The issue for determination is whether the Tribunal should exercise the power at s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A).
This will require determination of:(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
BACKGROUND
The Applicant is a 46-year-old citizen of the Islamic Republic of Mauritania (Mauritania) who first arrived in Australia on 6 May 2008.[2]
[2]G Docs p 135.
The Applicant accrued convictions for 30 separate offences between 2010 and 2020.[3]
The Applicant’s full criminal record is set out in the annexure to these reasons for decision.[3]G Docs p 33-34; Exhibit R2 (Supplementary G Docs) pp 1-4.
On 3 September 2020, the Applicant received a 22-month sentence of immediate imprisonment following a conviction for ‘acts or omissions causing bodily harm or danger to any person’ perpetrated against his former domestic partner of 5 years.[4] The sentencing judge allowed a 25% reduction in sentence because the Applicant’s early plea of guilty.[5] Her Honour also imposed a lifelong violence restraining order on the Applicant as part of the sentence, preventing the Applicant from having any further contact or communication with the victim.[6]
[4]G Docs pp 33-34; Supplementary G Docs p 1.
[5]G Docs pp 41.
[6]G Docs pp 42.
On 8 September 2020 the Applicant’s visa was mandatorily cancelled.[7] On 15 September 2020 and 1 October 2020 the Applicant made representations seeking revocation of the cancellation decision.[8]
[7]G Docs pp 136-142.
[8]G Docs pp 45-68; 69-90.
On 17 November 2021 a delegate of the Minster decided to not revoke the cancellation.[9]
[9]G Docs pp 14-31.
The Applicant lodged an application for review of the delegate’s 17 November 2021 decision with the Tribunal on 19 November 2021,[10] which is within the time prescribed by s 500(6B) of the Migration Act.[11]
THE HEARING AND THE EVIDENCE
[10]G Docs pp 1-7.
[11]G Docs pp 8-9.
Interpreter conflict
The application came on for hearing on 1 February 2022. Before the Tribunal took evidence, it emerged that the interpreter who had been engaged to assist the Tribunal at the hearing had (in their former capacity as the President of the Mauritanian Community in NSW), previously provided a support statement on behalf of the Applicant. This statement was included in the Supplementary G Documents.[12]
[12]Supplementary G Docs pp 154–155; Transcript 1 February 2022 (Transcript 1) p 10.
The interpreter confirmed this but advised that they did not personally know the Applicant and that this was the sort of support that the association provides routinely to any member of the Mauritanian diaspora in Australia. The Tribunal confirmed for the benefit of the parties that the scarcity of suitable Pulaar interpreters in Australia had already ruled out using the services of the only other available Pulaar interpreter, on the basis of that interpreter’s personal acquaintance with the Applicant. Submissions were sought from the Minister’s representative on the relevant law and given the statutory timeframe, the initial hearing was adjourned until 2 February 2022. [13]
[13]Transcript 1 pp 10-23.
Submissions subsequently received from the Minister were as follows:
The Minister is strongly of the view that it is undesirable for an interpreter to also be a witness in a proceeding. It raises clear questions of concern over the independence and neutrality of the interpreter. As we understand it, those concerns are shared by the Tribunal.
That said, if the Tribunal is unable to secure a different interpreter the Minister will not take issue with the original interpreter, that is Mr Diaw, providing interpretation at today’s hearing.
In reaching this position the Minister notes:
·The Tribunal is required to make a decision by 9 February 2022;
·The relative scarcity of Pulaar interpreters;
·The fact that whilst Mr Diaw is a co-signatory on a letter of support, the Applicant is not personally known to him;
·The Applicant is able to give some of his evidence in English with support from the interpreter; and
·Mr Diaw’s oath to faithfully interpret.
The Minister also draws the Tribunal’s attention to Metropolitan Petar v Mitreski [2009] NSWSC 106 at [209]-[211] as support for both the importance of ensuring as far as possible the independence of an interpreter and the fact that necessity may warrant departure from the “pure rule”. Similar support can be found in Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA1101; 194 ALR 156 at [18].
Persuasively, Hill J in Ahmed, referenced above, made the following observation:[14]
It seems to me not to be really in the interests of justice to set aside a decision on the basis of a failure to provide an interpreter in circumstances where an interpreter acceptable to the Applicant did in fact translate and where the communication that is required to take place between the Tribunal and an Applicant or witness appears in no way to have been impeded.
[14]Ahmed v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 156 [20].
At the commencement of the resumed hearing on 2 February 2022, Mr Gerrard, for the Minister, recapitulated the foregoing submissions for the benefit of the Tribunal, the interpreter and the Applicant. The Applicant confirmed that he understood the submissions and was content to proceed with the interpretive assistance of the interpreter.[15]
[15]Transcript 02 February 2022 (Transcript 2) pp 28-29.
Applicant’s history of offending
The Applicant’s offending history in Australia began in June 2009, when he was charged with unauthorised driving as a learner driver. He was found guilty of that charge in the Midland Magistrates’ Court on 3 February 2010.[16] A further identical conviction was recorded against the Applicant two months later, with the added element of driving with a proscribed blood/alcohol level. The Applicant continued to come before the courts on driving offences, primarily in relation to driving without authority and exceeding blood alcohol limits.[17]
[16]Supplementary G Docs p 4.
[17]Ibid pp 1-4.
As indicated above, a detailed history of the Applicant’s offending conduct appears in the annexure to this decision. According to this record, between 3 February 2010 and 8 May 2020, fines and penalties were imposed on the Applicant for the following:[18]
[18]G Docs pp 33-34; Supplementary G Docs pp 1-4.
(a)Seven driving without a valid driver's licence offences;
(b)Six driving with excess blood alcohol level offences;
(c)Two providing false personal particulars to police offences;
(d)Two gains benefit by fraud offences;
(e)Two stealing offences;
(f)Four breaches of lawful orders given by public officers offences;
(g)One going armed (or pretending to go armed) so as to cause fear offence;
(h)One disorderly in public offence;
(i)One breach of bail undertaking offence; and,
(j)One acts or omissions causing bodily harm or danger offence.
In the context of this record of offending, the Applicant’s 7 September 2019 ‘acts or omissions causing bodily harm or danger’ offence resulted in his being sentenced in the Western Australian District Court on 3 September 2020 (on an early plea of guilty) to a 22 month immediate term of imprisonment, together with a lifelong violence restraining order for the protection of the victim.[19] Over the course of the Applicant’s record of offending, he has received individual fines of up to $1,200 amounting to a cumulative total of $11,250 and has been disqualified from driving on nine separate occasions.
[19]G Docs p 42.
As at the date of this decision, the Applicant states that there is an outstanding amount owing in his fines and penalties in respect of his offending conduct of approximately $218.00.[20]
[20]Transcript 2 p 81
It is of some significance that, in addition to his numerous driving and driving-related offences (which the Tribunal regards as being serious offences in and of themselves) the Applicant’s offending over time has involved repeated poor character offending (i.e.: stealing; fraud; false particulars to public officers; breaches of orders and undertakings; being disorderly; and, being armed so as to cause fear). The majority (although, not all) of the Applicant’s serious, non-driving offending appears to have occurred since June 2017.
There is also some indication of a ‘trend’ in this category of Applicant’s offending, given the multiple domestic-violence related protection orders issued against the Applicant in 2019[21] (one of which the Applicant subsequently breached) by three of the Applicant’s intimate partners,[22] and the issuing of a life-long protection order in 2019 against the Applicant for the protection of one of the persons for whose protection prior protection orders had been issued against the Applicant (Ms T). There is also some similarity in the Applicant’s resort to weapons at times of stressful remonstrance, given his relatively passive (although undoubtedly threatening) use of a 20cm bladed knife in 2013[23] and his more active and physically harmful utilisation of a broken wine bottle in 2019.
[21]Supplementary G Docs SG14–SG21 pp 25-32.
[22]See also Supplementary G Docs SG9 and SG10
[23]Supplementary G Docs p 3
On 3 September 2020 in the District Court of Western Australia, on an early plea of guilty, the Applicant was convicted of ‘acts or omissions causing bodily harm or danger to any person’ (referred to in sentencing as ‘an act unlawfully that caused bodily harm’). The victim of the offending was the Applicant’s former partner of five years, Ms T.
In her sentencing remarks,[24] Gillan DCJ described the offending to which the Applicant had pled guilty as a crime involving considerable violence, committed while the Applicant was angry and had been drinking while present in the home of the victim. An argument broke out between the Applicant and Ms T, during which she threw a jar of sauce at him, smashing against a wall.[25]
[24]G Docs pp 37-44.
[25]G Docs p 38.
Her Honour found that the Applicant then broke a wine bottle on the coffee table before taking hold of the victim and holding the broken bottle against Ms T, breaking her skin, causing the various resulting wounds to bleed and causing the victim to scream. Following this conduct, the Applicant then departed the scene without taking any steps to ensure the victim’s wellbeing. Four cuts were sustained by Ms T to her neck, throat, and chest, for which she required surgery.[26] Gillan DCJ noted that, while the Applicant did not intend to stab Ms T with the bottle, he nevertheless held a very sharp broken bottle against her, which caused her significant injury,[27] resulting in lasting physical and psychological damage.
[26]Ibid.
[27]G Docs p 41
As such, Gillan DCJ found the offence was ‘simply too serious’ to consider a suspended sentence,[28] and despite noting that an immediate term of imprisonment was a sentence of last resort and taking account of the early plea of guilt together with the Applicant’s perceived genuine remorse, proceeded to sentence the Applicant to an immediate term of imprisonment of 22 months and issued a lifelong Violence Restraining Order against the Applicant for the protection of Ms T.
[28]G Docs p 42.
As indicated above, while serving his term of imprisonment, the Applicant’s visa was mandatorily cancelled by a delegate of the Minister on character grounds, pursuant to s 501(3A) of the Act. A delegate of the Minister subsequently refused to exercise the discretion to revoke the mandatory cancellation after weighing the considerations at s 501CA(4) of the Act.
The Applicant is currently detained at Yongah Hill Detention Centre in Western Australia and appeared before the Tribunal via videoconference on 1 and 2 February 2022.
The Applicant was self represented. The Respondent was represented by Mr A Gerrard, of the Australian Government Solicitor, who appeared in person.
LEGAL FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister 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); or
(ii)...; 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 501(6) of the Act relevantly provides:
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)); …
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(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.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(1) the performance of those functions; or
(2) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[29] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[30]
[29]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[30]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(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 fulltime 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(a) 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.
(b) 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.
(c) 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 measureable [sic] risk of causing physical harm to the Australian community.
(d) 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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(e) 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 types 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 measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section … 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section … 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[31] The character test is defined in s 501(6) of the Act (see [29] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [30] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (see [31] above). Both sub-sections apply in the Applicant’s case.
[31](2009) 106 ALD 66.
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [32] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should 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 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1 of Direction 90)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(emphasis added).
With respect to family violence, including intimate partner violence, the Tribunal in Orario and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4810 stated that:[32]
The nature of the harm to individuals and to the community if the applicant were to engage in the criminal and other behaviour which he has in the past, is obvious and serious. The consequences of a repeat of the violent behaviour for which the applicant was convicted on individuals who might be victims of such behaviour, as well as to the victims’ families and loved ones, and the broader community, do not need to be spelt out. Family violence not only causes harm to the direct victim, but also to the other members of the affected family. As well as the physical harm, family violence can cause trauma to those directly involved and to those who witness it, particularly children.
[32]At [56].
Relevantly, the Minister made the following submissions in relation to the nature and seriousness of the Applicant’s offending:
20. Having regard to the guidance within the Direction, the Applicant’s offending should be regarded as serious. The Applicant has a lengthy criminal record which should be regarded as significant. He has committed 30 separate offences over a 10-year period. The Applicant’s criminal record is serious in and of itself.
21. The Applicant’s last conviction was only a little over a year ago. That conviction concerns an offence committed on 7 September 2019, which is his most serious offence to date, and highlights his increasingly serious criminal conduct.
22. The relevant facts of the Applicant’s offending are set out in the sentencing remarks of Gillan DCJ
…
26.The Applicant also has convictions for breaches of Police Orders and bail, driving offences involving alcohol, stealing and other dishonesty offences, disorderly behaviour and being armed in a way that may cause fear.
27. The Applicant’s offending is self-evidently of the kind viewed as very serious under Direction 90. His most recent offence involved family violence.
28. Taking into account the nature and pattern of the offences, the increasing severity of the Applicant’s offending and its cumulative effect upon the community, the sentencing comments and the specific guidance and principles set out in Direction No 90, the respondent contends that the nature and seriousness of the Applicant’s conduct is a significant consideration that weighs very heavily against revocation of the decision to cancel the Applicant’s visa.
Conduct such as that evinced by the Applicant’s history of offending summarised above is antithetical to considerations of community cohesion, public safety or personal wellbeing. In addition, the disproportionate concentration of public resources required to address the immediate and long-term consequences of the Applicant’s considerable offending conduct is antithetical 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.”[33]
[33]Direction 90 at paras 5.2(1) and 8.1(1).
Further, we note that Direction 90 also identifies as a relevant factor in approaching the revocation of a decision to cancel a visa the principle that: “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.” As required at para 6, these principles inform our application of the considerations required by Direction 90.
The Applicant’s Offending
The conduct which appears most frequently in the evidence before us that is associated with the Applicant (regardless of the number of actual convictions recorded) is conduct resulting in the issuing of restraining orders. No fewer than 26 of these appears in the evidence before the Tribunal. While it is the case that the Applicant himself obtained seven of these against his intimate partners, on three of those occasions those orders were served by police on Ms T in hospital, where Ms T was being treated for injuries caused by the Applicant.[34]
[34]Supplementary G Documents SG27; SG30; SG31.
Those occasions do not include the final serious assault for which the Applicant was sentenced to a term of immediate imprisonment and issued with a lifelong violence restraining order. People who are identified as the protected party(s) in such orders should have some comfort that they will, in fact, be protected by those orders. That comfort, and victims’ preparedness to seek the protection of the law through such orders, is significantly undermined by behaviour of the type exhibited by the Applicant, which appears to exhibit a disregard for such orders.
The nature of the harm to individuals and to the community (actual and potential) if the Applicant were to engage in the same offending behaviour he has been found to have engaged in to date and referred to above, is obvious. Further, even at an impressionistic level, the most recent offending conduct for which the Applicant has been sentenced included “crimes of a violent nature against women” ‑ which falls within the description of very serious criminal offending for the purposes of sub-para 8.1.1(1)(a)(ii) of Direction 90. Accordingly, the Tribunal regards criminal offending such as that demonstrated by the Applicant as very serious.
The second most common type of offending exhibited by the Applicant is his accumulation of 13 driving offences, particularly unlicensed driving and driving with excessive blood alcohol. The harm caused by disregard of the type shown by the Applicant for driving laws is also self-evident and serious.[35]
[35]See RQRP v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 266 [44] (McKerracher J). [44].
As discussed in the matter of JNMK and Minister for Immigration and Border Protection [2018] AATA 971 (JNMK),[36] the comments of Deputy President Kendall (as he then was) in Zaya and Minister for Immigration and Border Protection [2017] AATA 366 (Zaya)(albeit in the context of a decision to refuse citizenship), [37] and Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 (Kohli)[38] are worth repeating here:
[36]Per Deputy President Boyle.
[37]At [54].
[38]At [20].
... There is an unfortunate tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair. This arguably results from a view in some circles that driving while under the influence is less serious than other offences. This is not a view that is shared by persons who lose their loved ones to drivers who drive when they clearly should not do so or indeed to persons who lose loved ones who themselves died because they drove while intoxicated.
The Tribunal takes these offences quite seriously because the consequences of not adhering to safe driving laws are themselves quite serious.Similar comments were made by Senior Member Poljak in Kohli:
The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community....
Similar sentiments have been expressed by the Tribunal in QKJY and Minister for Immigration and Border Protection [2017] AATA 820 at [41]; NSWQ and Minister for Immigration and Border Protection [2016] AATA 373 at [58].
(emphasis added)
Further, as discussed below, the Minister’s submission is that, viewed holistically “the Applicant’s criminal history reveals a persistent disregard for the law and persistent criminality”[39] and that: “It is of concern that he repeats similar offences and that those offences have escalated in gravity.”[40] These considerations invoke sub-para 8.1.1(1)(d) of Direction 90, which requires decision makers to have regard to “the frequency of the non-citizen’s offending”.
[39]Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) para [31.1].
[40]Ibid.
It is also of relevance to note the Minister’s submission that: “The Applicant’s offending is lengthy, comprising of 30 separate offences over a 10-year period.”[41] The repeat nature of many of the Applicant’s recorded offences together with the persistence of his offending over his period of residence in Australia mean that sub-para 8.1.1(1)(e) of Direction 90, which requires decision makers to have regard to “the cumulative effect of repeated offending”, is also a relevant consideration.
[41]Respondent’s SFIC para [20].
The Applicant’s lack of personal insight about his traffic offending is significant and continues to be of concern. In particular, we refer to his extensive record of unlicensed driving and driving with excessive blood alcohol offences. The following extract of evidence from the resumed hearing on 2 February 2022 demonstrates this lack of personal insight:
DEPUTY PRESIDENT: Yes, okay. If you’re moving on, you’ve referred several times in your evidence to your car. How many cars have you owned since you’ve been in Australia?
APPLICANT: Like, one, two, three, four, five. Like five car. Five car.
DEPUTY PRESIDENT: And you’ve bought five cars and never had a driver’s licence, is that correct?
APPLICANT: No, I was having a driver’s licence.
DEPUTY PRESIDENT: No. No.
APPLICANT: I was having a driver’s licence. I just lost it. Yes.
DEPUTY PRESIDENT: No. No, listen to the question. Have you ever had a driver’s licence?
APPLICANT: Okay. If I ever have a driver’s licence?
DEPUTY PRESIDENT: Have you ever had a driver’s licence?
APPLICANT: I do. I do have a driver’s licence.
DEPUTY PRESIDENT: No. Mr Ba, listen to the question. You’ve only just obtained your learner’s permit since you’ve been in gaol, is that correct?
APPLICANT: Yes.
DEPUTY PRESIDENT: Prior to that time, before then, did you ever have a driver’s licence?
APPLICANT: Yes. Before I been in prison, if I ever have a driver lesson?
DEPUTY PRESIDENT: Driver’s licence, not lesson, licence.
APPLICANT: (Indistinct) - licence, yes, driver’s licence. Yes, I do have a driver’s licence before.
DEPUTY PRESIDENT: Well, are you thinking of a learner’s permit, not a driver’s licence?
APPLICANT: I do have - I do have a driver’s licence. When I was working with Kings Transport and Civic Transport for delivering, they cannot take someone who doesn’t have a driver’s licence. And that time, I was having a driver’s licence.
DEPUTY PRESIDENT: So when did you have a licence?
APPLICANT: Okay. Around 2014. 2013, ‘14, ‘15, I think, I was having driver’s licence.
DEPUTY PRESIDENT: Well, you were convicted for driving in 2014 without a driver’s licence. So you didn’t have one in February 2014.
APPLICANT: Then, 2013, ‘12, I was having a driver’s licence. I do have a driver’s licence.
DEPUTY PRESIDENT: No. No, Mr Ba, in 2013 - - -
APPLICANT: Yes.
DEPUTY PRESIDENT: You were convicted for driving without a driver’s licence. If you turn to page 1.
APPLICANT: Yes.
DEPUTY PRESIDENT: So turn to page 3 of those documents.
APPLICANT: Yes.
DEPUTY PRESIDENT: Well, starting at page 4, in June 2010 you drove without a licence.
APPLICANT: 2014, yes.
DEPUTY PRESIDENT: See on page 4, the top one there, no authority to drive. That was in June 2010, so you didn’t have a licence then, did you?
APPLICANT: 2010.
DEPUTY PRESIDENT: On 12 August 2010, you were convicted of driving without authority to drive, and that offence occurred on 10 June 2010. So you didn’t have a driver’s licence then, did you?
APPLICANT: Yes. Because in 2008, when I come I didn’t have a driver licence, 2008, ‘09, ‘10. But I think ‘11 or ‘12, I do have my driver licence for two years.
DEPUTY PRESIDENT: You were convicted - - -
APPLICANT: I remember, I do have a driver licence, but I didn’t catch which year it was, but I do have one before.
DEPUTY PRESIDENT: But you were convicted in September 2013, again, of driving without a licence. So, as at 10 September 2013, you didn’t have a driver’s licence; that’s on page 3.
APPLICANT: Yes, my Honour, I cannot remember which year, but in Australia, I do have a driver licence once, because I - - -
DEPUTY PRESIDENT: Okay, in March 2014, again, you’re convicted of driving [without a licence], this time in February 2014.
APPLICANT: (Indistinct).
DEPUTY PRESIDENT: You didn’t have a driver’s licence, a current driver’s licence then, did you? That’s at the top of page 3.
APPLICANT: Yes. Page 3, yes.
DEPUTY PRESIDENT: So, in 2014, it appears you didn’t have a driver’s licence.
APPLICANT: Ten months. Yes, your Honour, what you said is right, but I cannot remember which year, but I do have a driver licence once here in WA, 35 a full driver licence, a full one, but (indistinct) which year.
DEPUTY PRESIDENT: In February 2017, if you go to page 2, you were convicted of driving with excess alcohol in your blood. You, at that stage, had a learner’s permit. Can you see that, on 10 February, that conviction?
APPLICANT: Yes.
DEPUTY PRESIDENT: So, in January 2017, when that offence occurred you had a learner’s permit.
APPLICANT: Just learner permit, yes.
DEPUTY PRESIDENT: So, you were still learning. You only ever had a learner’s permit, is that correct, up to that point?
APPLICANT: Yes, after 2017, yes, I was having just a learner permit. But before - - -
DEPUTY PRESIDENT: No, before 2017, you only had a learner’s permit, isn’t it?
APPLICANT: A learner’s permit, yes, that’s what I said. Yes.
DEPUTY PRESIDENT: But you didn’t have a driving licence?
APPLICANT: Yes, I did have a driver licence before, but I cannot remember which year. (Indistinct) your Honour.
(emphasis added)
We find that the nature and seriousness of the applicant’s offending are significant. It is also clear to us that he lacks personal insight into this aspect of his offending and into his offending generally, as highlighted below at [0].
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction 90)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(emphasis added).
The Tribunal in CZCV and Minister for Home Affairs[42](CZCV) summarised the task on review as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection[43] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[42][2019] AATA 91.
[43][2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the preceding Directions, the same considerations and principles apply to the present case. We adopt the approach indicated in the above cases.
Protection of the Australian community (8.1.2(1))
With respect to the Australian community’s tolerance for any risk of future harm that would be caused if he were to repeat his offending behaviour, the Minister submitted that:[44]
The nature of the harm to the community should the Applicant again commit similar offences means that the community should not be expected to tolerate a risk of similar offences being repeated.
[44]Respondent’s SFIC para [30].
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.
This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[45]
[45]Para 8.1.2(2)(a) of Direction No. 90.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
The nature of the harm that would be caused to the community if the Applicant were to reoffend or engage in the serious conduct that he has in the past would be serious, not only to individuals in the community, but also to the community as a whole.
With respect to an assessment of the risk that may be posed to the Australian community by the Applicant, referred to at sub-para 8.1.2(2)(a) of Direction 90, the Minister made the following submission touching on the nature of harm that may be occasioned if the Applicant engages in further criminal or other serious conduct:
31. The respondent contends that there are cogent reasons for the Tribunal to be concerned about the Applicant’s risk of re-offending.
31.1. Firstly, the Applicant’s criminal history reveals a persistent disregard for the law and persistent criminality. It is of concern that he repeats similar offences and that those offences have escalated in gravity. The Applicant’s offending is lengthy comprising of 30 separate offences over a 10 year period. His offending is also recent with the Applicant receiving a serious conviction last year.
31.2. Secondly, the Applicant has a history of breaching police and other orders.
31.3. Thirdly, the Applicant has an “an entrenched history of alcohol abuse” with no evidence that the Applicant has taken any steps to address this. Neither is there any substantial evidence that he has taken any steps to address his underlying issues with aggression and violence save for the provision of 2 certificates for attending Lifeskills and Men’s Group programs at Yongah Hill IDC in November 2021. With a record such as the Applicant’s the Tribunal would ordinarily be looking to consider objective gains made in respect of substance abuse, anger management and relationship issues. There is no such objective evidence and given the backdrop of a 10-year history of increasingly serious offending, that should be of concern to the Tribunal.
32. Given the nature of the offences and the nature of the harm to individuals, including vulnerable persons, the respondent contends that any risk of recidivism would be unacceptable to the Australian community: see paragraphs 5.2(5) and 8.1.2(1) of the Direction.
33. Furthermore, the Applicant’s former visa was a permanent visa such that there is no argument that there might be strong or compassionate reasons for granting a short stay visa.[46]
(Emphasis added)
[46]As this is not a review of a refusal to grant a visa, this submission appears to be irrelevant. Accordingly, we have not considered the Minister’s submission at para [33] of the Respondent’s SFIC.
The Applicant has made a number of statements of relevance to this primary consideration as follows:
Before I knew it I started abusing alcohol and I had constant arguments with my girlfriend which led me into custody. I regret drinking and I know realise I was hanging out with the wrong crowd of people at the time. This was very out of character for me and I never want to go down that path again.[47]
I pleaded guilty straight away and was sentenced to 22 months. What I did was out of character for me. I never had any intention to hurt or harm anyone. I was intoxicated and not myself at the time. I am very sorry for my offending and I understand what I did was very wrong.
During my time in prison I have had a lot of time to reflect on my life and my offending. I truly understand right from wrong. I really want a second chance to prove to my family and myself who I really am and that what I did does not reflect correctly on the person I am. I have used my time wisely in prison to do as many certificates and courses as possible. I have a lot of qualifications and I can offer a lot to the workforce once released.[48]
6/ your honour on the 11 May 2013 car crash.
We where [sic] five people inside an orange Hyundai Accent travelling north on Wanneroo Road when our driver lost control and crashed into a tree about 3 am on Saturday. Myself and four other friends three Mauritanian, one Australian woman was involved in a horrific accident that cost life of my two very good Mauritanian friends and our lovely Australian girlfriend may their soul rest in peace. From that early morning I was not feeling myself is normal [sic] because of that horrific moment as I witnessed the death of a loves once. I still living with that traumatising moment, making me think that life has no meaning and every now and then those memories are with me, hoping at the meantime with although support around me I will be recovering to contribute positively in Australia.[49]
(Original spelling retained. Underlining added).
[47]G Docs p 86.
[48]G Docs p 98.
[49]Supplementary G Docs p 160.
As we noted earlier, it is of concern that the Applicant fails to squarely acknowledge his own culpability for or the full extent of his criminal offending. This comes into sharp relief when considering the Applicant’s evidence about his guilty plea for the offence for which he was sentenced to an immediate term of imprisonment:
MR GERRARD: All right, well that’s a bit different to what the judge found though, isn’t it? Did you plead guilty when you went to court?
APPLICANT: I didn’t want to plead guilty, but someone said if I pleaded guilty I will get parole out or I will get maybe two months or three months. That’s why I plead guilty.
MR GERRARD: All right.
APPLICANT: But I plead guilty. Yes, I did.
MR GERRARD: But you did plead - - -
APPLICANT: I did plead guilty.
MR GERRARD: So the judge talks about this event and talks about Ms T getting angry with you and throwing a jar of sauce at you, but then the judge then says this:
You then went towards Ms T and she moved backwards towards the backdoor in the bathroom. You broke a bottle on the coffee table and continued after her, and you held the broken wine bottle in your hands and put it to Ms T’s throat. This caused four cuts to her neck and throat area which started bleeding, and she began screaming. You left the house and flagged down Ms M, who was in her car, and you got in and asked Ms M to take you home. That’s a bit different to what you’ve said, isn’t it?
APPLICANT: Yes, that’s what they’re writing, but I did explain - he’s [sic] the one who attacked me, I’m sure 100 per cent. She is one attacked me - she always do that. When you see my lips here, my hand, all cut - I have some biters - she always - she’s attacker. She’s a fighter. But I plead guilty for that.
MR GERRARD: Yes, you pleaded guilty.
APPLICANT: I pleaded guilty for that.
MR GERRARD: But you were saying that you didn’t break the bottle - this says that - the judge found that you did break the bottle when you went towards her? So did you or didn’t you break the bottle?
APPLICANT: She is the one - throw me the bottle and the bottle hit the wall, and it broke. And from there I pick up the broken glass.
MR GERRARD: All right.
APPLICANT: I was just scaring her. I was just scaring her.
MR GERRARD: And you said - - -
APPLICANT: I’m so sorry.
MR GERRARD: You said a little cut to her hand, and maybe a little to her neck. But there were four cuts to her neck and throat. Do you accept that? Well, let me put it to you more specifically - - -
APPLICANT: Yes, I accept - - -
MR GERRARD:
Ms T was taken to hospital where she was treated for a cut to the left side of her face just below her ear, a cut to the left side of her face along the jawline, a cut on her neck below her jaw and a cut on her neck above her collarbone. She had surgery to repair those cuts.
Do you accept that that is a bit different to a cut on her hand a little cut to her neck?
APPLICANT: Yes. Yes, it is. Some cuts - she already have some cuts before even we fight. She just put all of that just to blame on me, but I’m sorry we did fight. We did fight.
MR GERRARD: And you said - - -
APPLICANT: She was - - -
MR GERRARD: You told someone to get medical assistance, but the judge found that after the cutting occurred, you left Ms T there without seeking medical assistance?
APPLICANT: I did. That’s why I come back. That’s why I come back to the house. It’s where the police arrested me - while I come back to see her.
MR GERRARD: The difficult I have, Mr Ba, is that you say you’re remorseful and you’re very sorry, and the judge found that you were remorseful and that your plea of guilty showed that you were remorseful. But you’re not really accepting what was found here. You’re not accepting that you broke the bottle and went towards her. You’re not accepting that you caused all of the cuts that the judge found you did. And you’re not accepting that you just left her there. It doesn’t sound like you’re as remorseful as you say you are.
APPLICANT: Yes, I’m remorseful. I’m very, very sorry what happening on that day. Because all of us - we was drunk, and she was on a high on the drugs. We know we fight. We know we all injuries in that day. And that’s why I’m sorry - I don’t want to fight with a woman at all. I don’t want to have a problem with a woman.
MR GERRARD: All right. You remember making an application to this tribunal - you filled in a form to get this application underway?
APPLICANT: Sorry, again?
MR GERRARD: You’ve applied for - you’ve asked this tribunal to make a different decision to the delegate. That’s correct, isn’t it?
APPLICANT: I don’t understand - I don’t understand that - what he means.
MR GERRARD: All right. You filled in a form - an application for review of the Minister’s decision. You’re asking this tribunal to reach a different decision, right? Do you understand that?
APPLICANT: Yes.
MR GERRARD: And you remember filling out - - -
APPLICANT: Yes, yes.
MR GERRARD: You remember filling out that application form?
APPLICANT: Yes. Yes, I remember.
MR GERRARD: That application form asked you to explain why do you claim the decision is wrong. And what you said is:
I feel the police said I had been armed and am danger to the community, and what my ex accused me is a lot of things is not true. I had some of my friends talk to me about her, she just wanted me to be in gaol.
APPLICANT: That’s true. Yes, (indistinct).
MR GERRARD: It doesn’t sound very remorseful, Mr Ba. (Indistinct) that the police are saying things that are not true and it sounds like you are accusing your victim of just trying to get you into gaol.
APPLICANT: Yes, because - - -
MR GERRARD: How do you say that squares with being remorseful?
APPLICANT: People been calling me, telling me about what she’s saying outside. She said she just want to put me in prison. Other people tell me about that. But I know people who know him - who know her outside. It’s them, they call me on the phone, they tell me your ex she said she wanted you to just (indistinct).
MR GERRARD: So, this is all her fault?
APPLICANT: Yes, that’s what they tell me. They said, her friends, around her friend, but I’m really, really responsible, I’m very sorry, I don’t want to happen to no one. I don’t (indistinct).
MR GERRARD: So, are you remorseful for what you did or are you remorseful for the fact that you’re in prison and you’re facing removal from this country?
APPLICANT: Sorry?
MR GERRARD: Are you sorry for what you did to Ms T?
APPLICANT: Yes.
MR GERRARD: Or are you sorry because of the circumstances you now find yourself in?
APPLICANT: I’m sorry what I did to Ms T, of course, I’m sorry.
(emphasis added)
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[50]
[50]Para 8.1.2(2)(b)(i) of Direction No. 90.
In support of the Applicant’s case for demonstrating that he presents a low risk of re-offending, he has provided a number of support letters from people in his network of support. These are discussed further at para [160] below. These support letters are denuded of much of their value relating to the Applicant’s prospects of rehabilitation and reform given that many of the authors of those letters were unaware of the extent and nature of the Applicant’s history of offending.[51]
[51]Transcript 2 pp 104-105; 773.
Accordingly, while these letters are noted, they are accorded little weight in the context of the likelihood of the Applicant re-offending. As discussed below, these letters do carry slightly more weight in the context of demonstrating the Applicant’s links to the community. They are considered below in relation to that consideration.
It appears from the evidence quoted at [67] above, that the Applicant is now effectively recanting from his previous guilty plea. It also appears from the foregoing that the Applicant’s expressions of remorse for his offending conduct must be qualified as lacking personal insight. This, taken with his lack of substance abuse or domestic violence treatment while in either prison or immigration detention, satisfies us that the Applicant’s risk of reoffending should be objectively assessed as being moderate.
The Tribunal finds that, on balance, para 8.1.2 of Direction 90, being the risk to the Australian community should the Applicant commit further offences, weighs against revocation of the Cancellation Decision. We further find, in summary, that the first primary consideration should be given a significant weighting.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
The Minister made the following submission on this aspect of the Applicant’s offending conduct:
36. Family violence is referred to in the principle enunciated at paragraph 5.2(5) as conduct which is so serious that even strong countervailing considerations may be insufficient to justify revoking a mandatory visa cancellation in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community. Family violence is also expressly referred to in the primary consideration of the protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community [Direction 90, at para 8.1.1(1)(a)(iii)]. It is also expressly referred to in the primary consideration of the expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens [Direction 90, at para 8.4(2)(a)].
37. This consideration begins with a statement of principle 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 Direction states that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen [Direction 90, at para 8.2(1)].
38. Furthermore, this Tribunal has consistently found that family violence is abhorrent. It has been described as “a corrosive blight on the Australian community” [citing Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1955], “plainly abhorrent” [citing Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107] and an offence which “warps and destroys the healthy bonds that should exist between partners and within families” [citing ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633].
39. The Minister contends that the Applicant’s conviction on 3 September 2020 should be treated as an act of family violence, having regard to the finding made by the sentencing judge that the Applicant and his victim had been in a family and domestic relationship for over five years even though they had separated by the time of the offending.
(Emphasis added)
We note that para 8.2 of Direction 90 relevantly provides:
(1) 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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; 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 being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the 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 of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
…
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means 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. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
…
j) unlawfully depriving the family member … his or her liberty.
(Original emphasis.)
The proper construction of this aspect of Direction 90 was considered in detail by Halley J in Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Deng) at [135]-[157]. While acknowledging that his Honour found that “the expression ‘member of the person’s family’ in Direction 90 should not be narrowly construed”,[52] we note the prior observation of his Honour that he did “not consider that it would extend to relatives of a person who are not financially dependent on the person and who are not living with the person.”[53]
[52]Deng [156].
[53]Deng [155].
At the hearing on 2 February 2022, the Applicant was directly questioned about the nature of his relationship with his former domestic partner, Ms T, at the time of his offending on 7 September 2019. The relevant passage of transcript is as follows:[54]
[54]Transcript 2 p 74.
MEMBER:Okay, I’ll ask the question again. So, [Ms T’s] bills, who was paying [Ms T’s] bills in 2019?
APPLICANT: She pay by herself, I just give her some money to pay some and do whatever she have to do.
MEMBER:Why did you give her money?
APPLICANT: Because we was [sic] together, been together.
MEMBER:But it’s difficult to understand what your living arrangements were on the night of offence and I need to understand very clearly. Were you living at her house or were you not living at her house?
APPLICANT: Yes, I was living [sic] her house, because I sleep there two days before we fight.
MEMBER:Two days before the fight and before that, where were you living?
APPLICANT: Before that, I live in my boss house in Armadale.
MEMBER:Where did you leave your clothes? Did you leave your clothes in Armadale or did you leave your clothes in [Ms T’s] house?
APPLICANT: No, it’s my car that night was in [Ms T] house.
MEMBER:Yes, but you just said that you’d paid rent to your boss and you had your mail delivered to your boss’s house. Were you a visitor with [Ms T] or were you living at her house?
APPLICANT: Yes, meaning visitor, you can say visitor, but I just come sleep there two days and go back to my work or sometime she come to my boss house, sleep there one day, two days (indistinct).
(Emphasis added)
Later in the hearing, the Applicant put the events of this period of time in the following contextual framework:[55]
APPLICANT: Yes, because I didn’t rent anywhere, I just come my boss give me a house with six room to live there, it’s in the bush around Armadale. I work with him and he give me the house as I do have to look after what is in the house. Sometime, I took [Ms T], we go there, she sleep with me in that place and sometime I go to her house again, I sleep there. Yes, we eat together, we go together most of the time. Yes, but two days before our fight, I was with her in her house, two days, everything was good until she drunk, she find there another woman, she come (indistinct) and come angry. That bring - - -
(Emphasis added)
[55]Transcript 2 p 80
Something more should also be said about the Applicant’s evidence to the Tribunal regarding what Gillan DCJ described as the “family and domestic relationship for over five years”[56] between the Applicant and Ms T. Relevantly, the Applicant provided the following contextual evidence during cross-examination at the resumed hearing on 2 February 2022:[57]
[56]G Docs p 38.
[57]Transcript 2 p 55.
MR GERRARD: And how long were you in a relationship with [Ms T]?
APPLICANT: Because our relationship was just up and down, up and down, but nearly around four to five - - -
MR GERRARD: Four to five years?
APPLICANT: Four to five years, yes.
MR GERRARD: Did you live together?
APPLICANT: Yes, many years. Many months, yes.
MR GERRARD: Many years, or many months?
APPLICANT: Many years, many years. We lived together many years, yes.
MR GERRARD: All right. There were many incidents where the police issued you with restraining orders and with her with restraining orders. That’s the case, isn’t it?
APPLICANT: Yes.
MR GERRARD: You remember getting - - -
APPLICANT: Yes, (indistinct) I’m sorry.
MR GERRARD: So you remember lots of incidents where the police restrained you from being anywhere near her for 72 hours and the same for restraining her from being around you?
APPLICANT: Yes.
MR GERRARD: I think in the material there’s about 20 or so orders - I think there’s about 13 for you, maybe about eight or nine for Ms T - that sounds right?
APPLICANT: Sorry, again?
MR GERRARD: So I think the documents have that there’s about 13 orders issued against you protecting Ms T, and there’s about nine orders issued against Ms T protecting you. That sounds about right?
APPLICANT: (Indistinct). Yes, yes.
MR GERRARD: And these were issued by the police, weren’t they?
APPLICANT: Yes. Yes
MR GERRARD: So the police often came around to your house and, sort of, stopped arguments?
APPLICANT: Yes, me and [Ms T]- between her she was - it was too much - it was up and down, fight all the time, breaking TVs, breaking tablet, everything. Between us is worse, it was crazy. And I’m so sorry about that.
MR GERRARD: I think in some of the statements provided by the police they indicated that they were aware that you and Ms T had a volatile relationship. Would you accept that as a fair description of that relationship?
APPLICANT: Yes.
MR GERRARD: You used to fight all the time?
APPLICANT: Yes.
MR GERRARD: You were talking about broken TVs and broken tablets - is that both of you?
APPLICANT: Yes, but she broke TVs - I don’t broke stuff [sic] at home at all. But, you know, (indistinct), she is the one who broke a lot. Me, sometime, I don’t. (Indistinct) I bought it - I bring it to my house - I have everything, but when she’s angry, just broke (indistinct) broke everything.
MR GERRARD: But they were mainly verbal arguments?
APPLICANT: Yes. Yes, all of it.
MR GERRARD: All of it?
APPLICANT: Verbal argument, fight, yes. Between us it was crazy.
MR GERRARD: You say all the arguments that the police came and issued orders about were verbal arguments.
APPLICANT: Yes.
(Emphasis added)
For greater clarity about some of these details, the Tribunal made the following further inquiries with the Applicant during his cross-examination on 2 February 2022:[58]
[58]Transcript 2 pp 76–78.
MEMBER:In August 2018, about a year before the attack that you were charged with, we’ve got a restraining order that you asked for from the police against [Ms T], is that right?
APPLICANT: It’s page 38?
MEMBER: Page 38, yes.
APPLICANT: Okay. Yes, I’m listening.
MEMBER: Do you remember that? Beginning of August 2018, you asked the police to give you a restraining order.
APPLICANT: Yes.
MEMBER: It says that she was given this at Royal Perth Hospital.
APPLICANT: Royal Perth Hospital, yes.
MEMBER: Do you know why she was in Royal Perth Hospital on that day?
APPLICANT: Why she went in hospital that night?
MEMBER: Yes.
APPLICANT: Yes, I think she was injured in the fight we was having, she injury, that’s why she went there.
MEMBER: She was injured during a fight that night, was she?
APPLICANT: Yes, that night, we fight, yes.
MEMBER: Was anyone else involved in that fight besides you and her?
APPLICANT: No, just some friends was around, but no one. Only the - - -
MEMBER: Just you and she that were fighting, is it? Did others join in?
APPLICANT: Anyone join in?
MEMBER: Was it just you and her fighting?
APPLICANT: Yes, yes. I don’t understand, sorry.
MEMBER: Were you fighting with her or were there other people involved in the fight?
APPLICANT: No, it just me and her fight, that’s it. No one (indistinct).
MEMBER: She was injured after that fight and went to hospital, is that right?
APPLICANT: Yes.
MEMBER: I’ll just take you now to page 41.
APPLICANT: (Indistinct).
MEMBER: Page 41. This is 13 December the same year, 2018. You’ve asked for a protection order against her.
APPLICANT: Yes.
MEMBER: Again, it was given to her in the morning at Sir Charles Gairdner Hospital. Do you know why she was in hospital that day?
APPLICANT: No, I can’t remember. Which page?
MEMBER: Page 41.
APPLICANT: Charles Gairdner Hospital, Nedland. This is (indistinct) okay.
MEMBER: Do you remember why you asked the police to protect you like this?
APPLICANT: Yes.
MEMBER: What happened?
APPLICANT: Because she - yes, I wasn’t - from the house, is it like that, yes. I was on the house with her, I left her on the house, she was sleeping, I locked the door and when I come back, I find she broke the window and jump off from the window outside from the window top to the (indistinct) down side.
MEMBER: Why did she do that?
APPLICANT: Yes, I - she jump out. I don’t know why she did that. She said the door was locked, that’s why she broke the window to jump outside from the window.
MEMBER: So, why did you think you needed to be protected that day?
APPLICANT: She was having a trouble with other neighbours, she always do [sic]. She was having a problem with African girls, I think.
MEMBER: If I can take you to the next page, which is March, it’s four months later, March 2019? Once again, you asked the police to protect you from [Ms T].
APPLICANT: Yes.
MEMBER: This is early in the morning of 10 March. They gave her the protection order, she was at Royal Perth Hospital. Do you remember why she was at Royal Perth Hospital on that day?
APPLICANT: No, no, Sir. I cannot remember. This is was in my house in Midland, but I cannot remember, Sir. (Indistinct).
MEMBER: So, you don’t remember any of the events around - so you went to police and you said “you need to protect me from [Ms T]”, but you can’t remember why you asked for that?
APPLICANT: Yes, because me and [Ms T], we did a lot crazy bad stuff. She fight me many, many times, she bite me, she cut me with the knife. I was very scared of her, but I cannot remember what it was happening.
MEMBER: She was in hospital at the time, is that right?
APPLICANT: Yes, yes (indistinct).
DEPUTY PRESIDENT: Mr Ba, when you were fighting with [Ms T], around these times when she’s ended up in hospital, did you hit her at all in those fights?
APPLICANT: No, I didn’t hit her.Didn’t hit her, that’s just he go through me, try to use his name and bite me in here and yes, pulling on the table down and get up he take my hand and try to pull me inside of the house and I pull it back to let me go away.
DEPUTY PRESIDENT: So, your evidence is you don’t remember why she ended up in hospital following these fights?
APPLICANT: Yes, we all was - we both was very drunk that night and - - -
DEPUTY PRESIDENT: She was in hospital, Mr Ba, was she injured?
APPLICANT: Yes. Yes, that night, she - - -
DEPUTY PRESIDENT: Who injured her?
APPLICANT: The night, yes, the night we fight she was injured. Yes. She was injured, I was injured too.
DEPUTY PRESIDENT: Who injured her?
APPLICANT: I did, I did. I think I did.
DEPUTY PRESIDENT: That was in March 2019 when she was in Royal Perth Hospital? And was it also September 2018, when she was in Sir Charles Gairdner?
APPLICANT: I cannot remember.
DEPUTY PRESIDENT: Sorry, what was your answer?
APPLICANT: Yes, I said I cannot remember what happening in these days; 13 of March 2019 and - - -
DEPUTY PRESIDENT: 10 March 2019 and 13 December 2018?
APPLICANT: Yes, I cannot remember what’s happening in that date.
DEPUTY PRESIDENT: Your evidence earlier was that - - -
APPLICANT: I remember this was my house in Midland, but she used to come there, having an ugly with the neighbours, fight with the neighbours. Sometime they call for police or some kind of that stuff, yes. But I don’t remember - - -
DEPUTY PRESIDENT: But your evidence, you admit, don’t you, Mr Ba, that the reason she ended up in hospital was because she had been injured in the fights with you?
APPLICANT: Fight with me? Yes, can’t remember, but I never got (indistinct) well I remember only the fight.
DEPUTY PRESIDENT: Mr Ba, it’s not a hard thing. Are you telling me and this Tribunal that you can’t recall that the reason Ms T ended up in hospital is because she was injured in the fights with you?
APPLICANT: With me?
DEPUTY PRESIDENT: Yes. So, you injured her in these fights, didn’t you?
APPLICANT: Because I remember the police when he was there, he said to him to not come to my place. But I cannot remember the fight or - sorry, Sir.
(Emphasis added)
It will be appreciated that the Applicant’s own evidence to the Tribunal was that his relationship with Ms T had been turbulent and mutually violent throughout, with periods of separation and multiple police-issued temporary violence restraining orders having been obtained by each against the other.[59] In the course of this relationship, Ms T was admitted to hospital on at least three occasions due to injuries that were sustained during domestic disputes with the Applicant. On one occasion, the Applicant’s evidence is that he locked her in their dwelling place, which resulted in her breaking a window to escape, during which she sustained cuts requiring an admission to hospital.[60]
[59]See above para [79].
[60]Ibid
The Applicant’s written submissions in response to the Minister’s submissions on the question of non-refoulement are contained in a statement received on 9 December 2021 as follows:[99]
1/ There is no longer a refugee camp in Senegal where I was living until the time the Australian government rescued us from the horrible conditions we lived in that camp. The Senegalese government will not accept any person who has no civil status document to enter the country.
2/ The Mauritanian government consider officially, that all those who left the refugee camp and been accepted as a permanent resident in the others countries are no longer, welcome in Mauritania, and they have been warned that if they step in the country (Mauritania) they be considered has a part of the list of those who vilify and betrayed the country. Those refugees will be persecuted. Any Mauritanian refugee with Mauritanian civil status documents who will return to Mauritania will be considered as a traitor to the nation and will be purely and simply imprisoned for life on the territory.
3/ The Mauritanian government will not admit any refugees who have been admitted in Australia and other countries around the world as Mauritanian refugees. They will not be provided any civil status documents up front to see themself leaving in Mauritania.
4/ Your Honour my life is at high risk in Mauritania, and all black Mauritanian like me who lost everything in the country during the dark days of April 1989 are not welcome to Mauritania until now, as there is no democracy in Mauritania (as an example the 27 November 1990, to celebrate the Independence Day the Mauritanian government hanged 28 HALPULAAR soldiers from my ethnic group to glorify the celebration. Today in Mauritania this particular date is considered by the Halpulaar community as a date of national sadness.
(original spelling retained).
[99]Applicant’s Statement received 09 December 2021.
The Applicant did not provide any supporting country information to corroborate the claims made above. The Applicant’s claims in this respect (highlighted at the adjourned hearing on 1 February 2022)[100] were explored further at the hearing on 2 February 2022.[101]
Briefly, he holds a subjective fear of harm in Mauritania because during the aftermath of a Military coup around 1988 his father was harassed and beaten by the incoming regime and the family were forced to seek asylum in Senegal. None of his family has returned to Mauritania since this time. The Applicant raised the fact that he has no official Mauritanian identity documents. At the resumed hearing on 2 February 2022, the Applicant confirmed that he had not attempted to obtain any Mauritanian documents because he had no desire to travel to that country.[102]
[100]Transcript 1 p 8-9.
[101]Transcript 2 pp 82-86.
[102]Transcript 2 p 87.
Although not commenting on any protection claims the Applicant may choose to pursue should he elect to apply for protection in Australia, we note that nothing in his evidence to date articulates any sufficiently formed non-refoulement consideration with a degree of specificity or particularity that would give rise to a reasonable apprehension that he is owed international non-refoulement obligations in the event of his being unsuccessful in his application to revoke the visa cancellation decision.
In passing, we do note that despite the Applicant having previously claimed that he is unable to return to Senegal,[103] he has in fact done so voluntarily, between August and November 2017,[104] during which time he fathered SB.
[103]G Docs p 89.
[104]G Docs p 135.
We also note that the country information referred to by the Minister in the extracted passage above at para [139] above makes it clear that, while circumstances for returning failed asylum seekers in Mauritania are problematic, as a member of the Economic Community of West African States, Mauritania allows freedom of movement with other member states, including Senegal. Further, contrary to the applicant’s assertions, democratic elections were held in Mauritania in 2018 and 2019 and the national government is cooperating with the United Nations human rights monitoring agencies in addressing long-term human rights concerns.[105] Accordingly, there is nothing before the Tribunal to suggest that the Applicant would be prevented from entering Senegal if, on return, he was unable to find conditions in Mauritania amenable to his long-term wellbeing.
[105]Supplementary G Docs pp 166-199; US Department of State, Mauritania 2020 Human Rights Report, 30 March 2021 <>
In the present case, we find that the non-refoulement consideration does not arise in the context of the decision to revoke the cancellation decision, given that the Applicant’s return to Mauritania does not give rise to any non-refoulement obligations.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) 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 relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Mauritania enjoy.
Relevantly, the Minister made the following submissions in relation to the extent of any impediments that the noncitizen may face if removed from Australia to:[106]
We would accept that there are going to be difficulties for the Applicant in returning to Mauritania. But there is nothing particular in the evidence which would put to him – which would say that it should be elevated given the Applicant would be – we would say there’s no evidence he would not be in the same situation as other people – other citizens of that country.
He doesn’t have any particular healthcare issues. He gave some evidence of having some mental health issues but not that he’s receiving considerable treatment for. He’s reasonably fit. He speaks five languages I think or four languages. He has experience working. He’s gained some qualifications. He is better placed than some Applicants that might be returned. We expect that the Tribunal will find that that consideration weighs in the Applicant’s favour
[106]Transcript 2 p 127.
During the hearing on 2 February 2022 the Applicant was questioned about his mental health.[107] The Applicant’s evidence was that he has derived some benefit from speaking with the detention centre counsellor about his mental health issues. While this is positive, we note that the Applicant has not undertaken any specific substance abuse treatment programs. This raises the inference that the Applicant may be reluctant to engage with cognitive behavioural or transformational relationship therapies whether in Australia or in another country, such as Mauritania. We note that, throughout his period of offending, he maintained a network of support and community within the Mauritanian diaspora in Australia, including regular attendance at Mosque. There is no suggestion that he would conduct himself any differently on return to Mauritania or if subsequently relocating to Senegal.
[107]Transcript 2 p 89.
We note that the Applicant was 13 when he left Mauritania and 33 when he left Senegal. He speaks several relevant languages, and he is experienced in the cultural milieu of both countries, particularly within the community of his ethnic and cultural peers.
It is likely that return to Mauritania would mean that the Applicant would face some economic dislocation and personal challenges. Given that he has children and extended family in Senegal, and given also that he has returned to that country since his arrival in Australia in 2008, an option may be for him to relocate to Senegal after returning to Mauritania. There is no evidence before the Tribunal to establish that the Applicant would face no impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Mauritania), taking into account his age (46) and generally good health, the fact that he has a sound knowledge of the relevant language and cultural milieu and the prevailing medical and/or economic support available to him in Mauritania.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 provides:
(1) 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.
Neither party made written submissions to the Tribunal on this consideration.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration does not arise and is therefore neutral.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the visa cancellation decision on the Applicant’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. The Tribunal must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(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.
Relevantly, the Minister made the following submissions in relation to the extent of any impediments that the noncitizen may face if removed from Australia to:[108]
60.The Applicant has been ordinarily resident in Australia since 2008 and has provided evidence of ties to this country. However, his tenure in Australia has been punctuated by persistent criminality, alcohol abuse and other anti-social behaviour. His links to this country should be viewed through that prism.
61. Nevertheless, the respondent concedes that the Applicant has reasonably strong ties to Australia.
[108]G Docs p 15.
The Applicant has two brothers and a sister currently resident in Australia in addition to his biological daughter and his great nephews discussed separately above.[109] The Applicant currently is not in an intimate relationship with anyone in Australia.
[109]G Docs p 85.
He offered support letters from his brothers and a sister-in law, in addition to a number of personal friends and the Mauritanian community in Australia.[110] It is clear from these letters that the Applicant has a network of love, care and support in the community. While a number of these letters bear the hallmarks of a somewhat pro-forma advocacy endeavour, those authors whom the Tribunal was able to contact did confirm the tenor of the letters.[111]
[110]Supplementary G Docs pp 149-165.
[111]Transcript 2 pp 95-115.
Two things are striking about the circumstances of the Applicant’s life from the available evidence, namely;
(a)the Applicant has had the benefit of a staunch and close network of support and love in Australia throughout his period of residency; and,
(b)the Applicant has not only had a persistent and significant record of offending behaviour in Australia throughout this time, but he has failed to disclose this record of offending from those closest to him.
This continues to be the case as is indicated by the following exchange at the resumed hearing on 2 February 2022:[112]
[112]Transcript 2 p 127.
APPLICANT: Yes.
MEMBER: Can you turn to page 1 to 4 of that bundle. This is the History for Court, Criminal and Traffic.
APPLICANT: Yes. Yes.
MEMBER: Do you have that in front of you?
APPLICANT: Yes.
MEMBER: Page 1, page 2, page 3 and page 4.
APPLICANT: Yes, page 4.
MEMBER: Now, this is your criminal record which you confirmed for us at the start of the hearing which begins with offences in June 2009 and ends with your most recent conviction on 3 September 2020, which, as Mr Gerrard has indicated, has details of seven driving without a valid driver’s licence offences, six driving with excess blood alcohol level offences, two offences of providing false personal particulars to police, two gain benefit by fraud offences, two stealing offences, four breaches of lawful orders given by public officers, one going armed or pretending to be armed so as to cause fear, one disorderly in public offence, one breach of bail undertaking offence, and one act or omission causing bodily harm or danger offence. Now, that’s your criminal history since [2009]. The witnesses that you’re going to call now, how many of them know the full extent of your criminal history?
APPLICANT: None.
MEMBER: So none of them?
APPLICANT: No, just little bit my brother, know only little bit.
MEMBER: So the only people who know the extent of your criminal offending are yourself, the Tribunal, Mr Gerrard and that. Is that correct?
APPLICANT: Yes. Correct, yes.
MEMBER: Okay. Thank you.
(emphasis added).
Accordingly, we find that the impact of non-revocation of the visa cancellation decision would be significant to the Applicant’s immediate family members and support network in Australia. This is evidenced by the willingness of the Applicant’s support witnesses to assist with his ongoing care and rehabilitation if the cancellation decision were to be revoked.
We find that the impact of the revocation of the Applicant’s visa needs to be weighed in light of his failure to disclose his actual record of offending to his support network membership and the fact that this record of offending continued from one year after his arrival in Australia until he entered custody on 7 September 2019. Accordingly, we find that this consideration does weigh in favour of revoking the cancellation decision. Given the concerns discussed above, we find that only minor weight should be given to this consideration.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Relevantly, the Minister made the following submissions in relation to the extent of any impediments that the noncitizen may face if removed from Australia to:[113]
62. The Applicant’s employment history has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
63. Overall, the respondent accepts that the Applicant has reasonably strong ties to Australia, and that some weight should be given to this ‘other consideration’ in favour of revocation of the visa cancellation decision.
[113]G Docs p 15.
The Applicant made no submissions relevant to this point beyond requesting a second chance and pointing to his educational and occupational qualifications.[114]
[114]Transcript 2 p 129.
The parties concede and the Tribunal is satisfied that this factor is not relevant in the present case and should be given no weight.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. We are guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[115] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[116]
[115](2018) 74 AAR 545.
[116](2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[117] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[117][2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
We adopt the approach directed by the above cases.
Primary Consideration 1
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in paras [44]–[72] above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as moderate. Taking into account the harm that would be caused to the community if the Applicant were to reoffend and the likelihood of him reoffending, this consideration weighs strongly against of the revocation of the cancellation of the visa. Moderate weight should be given to this consideration.
Primary Consideration 2
Given that the Tribunal has found that the Applicant has engaged in family violence, for the reasons set out at paras [73]–[84] above, the second primary consideration, family violence, weighs heavily against revocation of the cancellation of the Applicant’s visa. Significant weight should be given to this consideration.
Primary Consideration 3
For the reasons set out in paras [86]–[120] above, the third primary consideration, the best interests of minor children, weighs in favour of the revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.
Primary Consideration 4
For the reasons set out at [122]–[136] above, the fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. Significant weight should be given to this primary consideration.
Other Considerations
International non-refoulement
For the reasons set out above in paras [138]–[145] the Tribunal has found that the non-refoulement consideration has a neutral weight in the context of the decision to revoke the cancellation decision, as the Applicant’s return to Mauritania does not give rise to a non-refoulement obligation.
Extent of impediments
With respect to the consideration of the extent of impediments, the Tribunal has found that these are real and weigh moderately in favour of revoking the cancellation decision, as set out above in paras [146]–[151]. However, given the Applicant’s lack of candour and the absence of remorse or rehabilitation, only minor weight should be given to this consideration.
Impact on victims
The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses impact on members of the community other than victims, is addressed above in the Tribunal’s consideration of other paras of Direction 90 (see paras [44]–[84] above) and insofar as para 9.3 calls upon the Tribunal to consider the impact of the decision on victims, this consideration has a neutral weight.
Links to the Australian community
The consideration of the strength, nature and duration of the ties that the Applicant’s links to the Australian community weighs in favour of the revocation of the cancellation of the visa. For the reasons set out above at paras [155]–[168], little weight should be given to this consideration.
CONCLUSION
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, the Tribunal finds that the considerations in favour of revocation do not outweigh those against revocation. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked and the cancellation decision should stand.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 19 November 2021, not to revoke the mandatory cancellation of the Applicant’s class BB Subclass 155 visa pursuant to 501CA(4) of the Act is affirmed.
I certify that the preceding 184 (one hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle and Member Dr C Huntly
..........[Sgd]............................................................
Associate
Dated: 09 February 2022
Date of hearing: 01 and 02 February 2022 Applicant: In person Solicitors for the Respondent: Mr A Gerrard, Australian Government Solicitor ANNEXURE
Applicant’s record of offending
The Applicant’s criminal history is set out in a National Criminal History Check, dated 09 September 2020,[118] and is detailed below:
[118]G Documents p 33-34.
Court Date Offence Result Perth District Court
of Western Australia3/09/2020 Acts or omissions causing bodily harm
or danger to any person; Criminal Code (WA); 304 (1)(a)VRO Section 63A
Imprisonment 22 Months CONCURRENT from 07 September 2019 - ConcurrentPerth Magistrates Court 8/05/2020 Breach of Bail (Fail to appear soon
after).; Bail Act 1982; 51 (2)Fine $400 13/06/2019 Breach of Police Order; Restraining
Orders Act 1997; 61 (2a)Fine $200 Perth Magistrates Court 22/05/2019 Fail to Obey Order Given by an Officer; Criminal Investigation Act 2006; 153(1) Fine $400 Perth Magistrates Court 3/07/2018 Exceed 0.02g alcohol per 100ml of blood Fine $150
Disqualified 3 Mths - Concurrent3/07/2018 No Authority to Drive - Never Held Fine $200 Perth Magistrates Court 16/06/2017 Stealing; Criminal Code (WA); 378 Fine $700 - global 16/06/2017 Gains Benefit by Fraud.; Criminal Code(WA); 409 (1)(c) B Fine $700 - global 16/06/2017 Stealing; Criminal Code (WA); 378 Fine $700 - global 16/06/2017 Gains Benefit by Fraud.; Criminal Code(WA); 409 (1)(c) B Fine $700 - global Perth Magistrates Court 10/02/2017 No Authority to Drive - Never Held Fine $100
Disqualified 3 Mths - Concurrent10/02/2017 Driver Exceeds Zero Blood Alcohol Content Fine $150
Court Date Offence Result Perth Magistrates Court 12/03/2015 Give False Personal Details To Police;
Criminal Investigation (Identifying
People) Act 2002; 16 (8)Fine $100 12/03/2015 Breach of Police Order; Restraining Orders Act 1997; 61 (2a) Fine $200 Joondalup Magistrates Court 10/03/2014 Exceed 0.02g alcohol per 100ml of blood Fine $150
Disqualified 3 Mths - Concurrent10/03/2014 No Authority to Drive - Suspended Fine $1200
Disqualified 9 mths - CumulativePerth Magistrates Court 13/01/2014 Breach of Police Order; Restraining Orders Act 1997; 61 (2a) Fine $200 Joondalup Magistrates Court 11/09/2013 No Authority to Drive - Suspended Fine $1000
Disqualified 9 Mths11/09/2013 False Name (Suspect) Fine $200 11/09/2013 Exceed 0.08g alcohol per 100ml of blood Fine $1200
Disqualified: 14 mths - ConcurrentPerth Magistrates Court 25/03/2013 Disorderly behaviour in public; Criminal Code WA s 74A 2 (a) Fine $300 Perth Magistrates Court 21/01/2013 Being Armed or Pretending to be Armed in a way that may Cause Fear; Criminal Code WA s 68(1) Fine $500 Perth Magistrates Court 23/08/2011 Exceed 0.08g alcohol per 100ml of blood Fine $500
Disqualified 4 mthsPerth Magistrates Court 12/08/2010 No authority to Drive - Suspended Fine $400
Disqualified 9 mths - CumulativeMidland Magistrates Court 19/05/2010 Fail to Transfer Vehicle Licence Fine $100 19/05/2010 Unlicensed Vehicle (Owner/Driver) Fine $150 Perth Magistrates Court 1/04/2010 Unauthorised Driving by Learner Drivers Fine $250 1/04/2010 Exceed 0.02g alcohol per 100ml of blood Fine $200
Disqualified 3 mthsMidland Magistrates Court 3/02/2010 Unauthorised Driving by Learner Drivers Fine $200
0
21
0