Bahrami and Minister for Home Affairs (Migration)

[2018] AATA 1332

Bahrami and Minister for Home Affairs (Migration) [2018] AATA 1332 (16 May 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1078

Re:Miremad Bahrami

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:16 May 2018

Place:Sydney

The decision of the Minister’s delegate not to revoke the cancellation of the Applicant’s visa pursuant to section 501CA of the Migration Act 1958 (Cth) is set aside. In substitution, the Tribunal decides that the cancellation of the Applicant’s visa is revoked.

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – non-revocation of decision to cancel visa – failure to pass character test – Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of child – expectations of Australian community – other considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 500, 501, 501CA

CASES

Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 297 ALR 225

SECONDARY MATERIALS

Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

16 May 2018

RESPONDENT'S STATEMENT OF FACTS, ISSUES AND CONTENTIONS

1. This is an application for review of a decision of a delegate of the Respondent Minister made on 20 February 2018 (the reviewable decision) pursuant to s 501CA of the Migration Act 1958 (Cth) (Act) not to revoke a decision made on 24 March 2017 to cancel the Applicant's Class BN Subclass 136 Skilled - Independent visa (visa) pursuant to s 501(3A) of the Act (the original decision).

2. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act.

3. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

4. The Applicant was born in Iran on 21 September 1980. He first arrived in Australia on 16 January 2009.

5. The Applicant’s criminal history is set out below in a table composed by the Respondent.

   
   
   

Last Court Date	Offence(s)	Conviction	Final Outcome
11 Aug 2011	Shoplifting - t2	11 Aug 2011	12 months good behaviour bond, no conviction Pay court costs
5 Dec 2012	Shoplifting value <=$2000 -t2	5 Dec 2012	Fine: $650 Pay court costs
17 Nov 2014	Shoplifting value <=$2000 -t2 Contravene prohibition/restriction in avo (domestic)	17 Nov 2014	Conviction with no other penalty
6 Feb 2015	Stalk/intimidate intend fear physical etc harm (domestic)-t2	6 Feb 2015	Imprisonment: 7 months, suspended upon entering bond for 7 months
27 Aug 2015	Possess prohibited drug (x2)	27 Aug 2015	Conviction with no other penalty Drugs be destroyed
19 Jul 2016	Possess or use a prohibited weapon without permit -t2	19 Jul 2016	$500 fine Weapon forfeited to the crown
22 Mar 2017	Goods in personal custody suspected being stolen (not motor vehicle) (x2)	22 Mar 2017	Fine: $400
22 Mar 2017	Obtaining restricted substance by false representation	22 Mar 2017	12 months bond with conviction, order to attend counselling
11 Apr 2017	Drive vehicle, illicit drug present in blood - 1st offence	11 Apr 2017	Fine: $1000 Disqualification: 6 months
24 May 2017	Goods in personal custody suspected being stolen (not motor vehicle)	24 May 2017	Imprisonment: 1 month
21 June 2017	Common assault (domestic violence) -t2 Possess prohibited drug (x4) Possession of equipment for administering drugs Possess or use a prohibited weapon without permit-t2 Custody of knife in public place - first offence Goods in personal custody suspected being stolen (motor vehicle)	6 Feb 2015	12 months imprisonment, 3 months non-parole period. Order for drug and alcohol counselling upon release.
	Deposit litter from vehicle	27 Aug 2015

1. On 27 June 2017, the Applicant's visa was cancelled under s 501(3A) of the Act.

2. On 17 July 2017, the Applicant made representations seeking revocation of the Original Decision.

3. On 20 February 2018, the delegate decided to exercise the discretion under s 501CA(4) not to revoke the cancellation of the Applicant's visa.

4. On 13 March 2018, the Applicant applied to the Tribunal for a review of the Non-Revocation Decision. He is currently detained at Villawood Immigration Detention Centre.

   HEARINGS AND COMMENTS ON EVIDENCE

5. This matter was listed before the Tribunal on the 3^rd and 4^th of May 2018, with the 4^th of May hearing later vacated. At the hearing on 3 May, the Applicant, who has been unrepresented throughout the various hearings, attempted to provide further material and give oral evidence about matters which, hitherto, had not been before the original decision-maker. This, of course, is contrary to Section 500(6H) and Section 500(6J). I allowed portions of the statement he produced to be admitted as submissions and excluded other paragraphs.

6. A further hearing was held on 9 May. The passages, originally excluded, were admitted. The Applicant again attempted to produce further evidence, namely, a statement by his former wife, a statement by his treating doctor, Dr Needham, and various records of blood tests relating to the presence, or otherwise, of drugs in his blood. I judged this material as being potentially relevant having regard to the Respondent’s cross-examination of the Applicant on 3 May 2018.

7. The Respondent was offered the opportunity on 9 May to cross-examine the Applicant’s former wife. An adjournment was granted for the purpose of the Respondent’s legal representative to take instructions. The representative said in the course of the hearing that Instructions had been taken and it was not proposed to cross-examine the former wife.

8. It is tolerably clear from decisions such as Minister for Immigration and Citizenship v Li and Another[1] that material evidence favourable to the Applicant elicited during cross-examination would become evidence in the Applicant’s case.

   [1] Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 297 ALR 225.

9. It is therefore greatly to be regretted that the Respondent chose not to cross-examine the Applicant’s former wife. Amongst other things, it resulted in a serious delay in the hearing that was adjourned to the 14^th of May. The only inference that can be drawn from the decision of the Respondent not to avail himself of the opportunity to cross-examine that witness and elicit relevant information is that the Respondent deliberately sought to deny the Tribunal’s consideration of relevant evidence. As I have said, this decision was taken on instructions from the Respondent. This tactical conduct had, in my opinion, the potential to subvert the Tribunal’s functions, amounting to a potentially unfair hearing. This is particularly so in a matter where the consequences of an unfair hearing may have devastating consequences for an Applicant.

10. I am reminded of statements made in the matter of Li, to which I have referred, and remind parties to these proceedings are inquisitorial and not adversarial.

11. To ensure as fair a hearing as possible, the matter was listed for a further hearing on Monday, the 14^th May, merely two days before the 84^th day upon which, according to Section 500(6L) of Migration Act1958, the Minister’s decision is automatically confirmed pursuant to legislation.

12. The Applicant’s criminal history discloses a variety of offences according to the Respondent’s schedule, the most serious of which is the assault on his wife in the presence of the young child. This offence came about as a consequence of his marriage breakdown. I accept that evidence. It is of course a serious offence but the only offence of any significant violence. He became addicted to opioids prescribed initially for a painful injury and which he continued to take in increased doses without proper medical supervision. According to his evidence, this was the beginning of a downward spiral and is reflected in his offending. He admitted also to using ice but his main offending seems to have been founded in the misuse of opioids. Most other offending I regard as either minor or drug related, which includes selling prescriptions. There are further matters of disobeying Court orders.

13. The numerous court appearances really reflect his original offences often being “called up”, that is, as breaching court orders imposed in relation to the further commission of relatively minor offences. The Applicant has attempted, on occasions, to become drug-free by undertaking rehabilitation, although those attempts failed. He has, since being held in immigration detention, originally with the assistance of Dr Needham, and then eventually by his own determination, been able to exist without drugs.

14. I accept this evidence and it is supported by the drug / urine tests produced in evidence. According to the Applicant’s evidence, which I accept, he is now drug-free.

15. Furthermore, I accept that he has broken the cycle of his addiction to drugs. This is the fortunate consequence of his being held in immigration detention.

16. This body of evidence, taken together with his offending history and the quality of the offences, discloses that although the offences were serious in the catalogue of possible offences, they do not fall at the most serious end of the spectrum. Furthermore, the domestic violence offence which he committed, abhorrent to society as that offence is, was perpetrated in a situational way. Evidence properly receivable before the Tribunal establishes that his former wife has visited him in custody with their son and further, has organised other prison visits for their son.

17. This suggests two things. The first is that his former wife does not see the Applicant as a particular threat anymore and therefore there is little risk to her from future offensive behaviour by him. Secondly and significantly, it establishes a continuing an important relationship between father and child, which I regard as a particularly significant feature and a matter which must be considered by me in Direction 65 as a primary consideration.

18. Furthermore, a proper analysis of his offending history suggests that as a drug-free member of Australian society, the Applicant represents little risk to the Australian community from recidivism. Seen in this way, I judge that for the protection to the Australian community, the risk to the Australian community as being low indeed were the Applicant allowed to remain in Australia.

19. I will discuss these matters further when analysing the factors relevant to considerations required by Direction No. 65.

20. On 14 May 2018, evidence was given orally by the former wife and cross-examination was undertaken.

21. I have had, over the various different hearing dates of this matter, considerable opportunity to observe the evidence and behaviour of the Applicant and on the last occasion also that of his former wife. The Applicant’s evidence seemed to me to be honest and credible. There was to my mind, no attempt to dissemble or prevaricate. He made appropriate concessions. Significantly, he demonstrated substantial insight into his past conduct. Submissions were made by the Respondent that the Applicant denied head-butting his wife on the occasion of the domestic violence offence. This was a fact apparently placed before the sentencing Magistrate and referred to in her sentencing remarks. The Applicant denied this in cross-examination. The Respondent had the opportunity to cross-examine the Applicant’s former wife about this. No such cross-examination was undertaken. I, therefore, do not place any significance on this discrepancy nor does it affect the view I have formed as to the Applicant’s credit.

22. As for the former wife’s evidence, I likewise found it credible. There was no sense of her unwillingly giving evidence nor did she appear to be under pressure or fearful of the Applicant.

23. I have no hesitation in accepting the evidence given by both the Applicant and his former wife in support of the Applicant’s case.

24. Furthermore, there is no reason to suppose that the evidence of Dr Needham as to the Applicant’s reformed behaviour in relation to his taking of illicit opioid substances should not be accepted. This is supported objectively by the various blood drug tests that were produced. The Respondent made submissions to the effect that Dr Needham’s evidence should not be accepted on the basis that his evidence is inconsistent with other evidence concerning under what circumstance the Applicant left the drug treatment program. I do not accept those submissions. I see no necessarily inconsistent evidence. Of concern, however, is the Respondent’s failure to request cross-examination of Dr Needham on the 9^th of May. The Respondent sought to cross-examine Dr Needham on the 14^th of May, however, the Tribunal was informed that the doctor was unavailable.

25. As a result of the material provided to the Tribunal prior to the first hearing and my assessment of the evidence in its entirety, I have come to the conclusion that substantial weight should be given to what is in the best interests of minor children, in this case, the Applicant’s son, in the overall collection of competing interests required to be taken into account pursuant to Direction 65.

    RELEVANT LEGISLATION AND POLICY

26. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

27. Subsection 501CA(4) provides that (emphasis added):

    (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.

28. Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

29. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa .

30. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

    (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));

    (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(3));

    (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));

    (d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (cl 6.3(4));

    (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (cl 6.3(5)); and

    (f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (cl 6.3(7)).

31. Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

32. I will now deal specifically with the issues required by Direction No. 65.

    Protection of the Australian community

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle 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 …

    (2)       Decision-makers should also give consideration to:

    a)        The nature and seriousness of the non-citizen’s conduct to date;

    b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

33. The Applicant committed a number of offences between August 2011 and June 2017, the most serious of which was dealt with in February 2015, which was an occasion of domestic violence involving the Applicant’s wife. His child was also present.

34. I, however, regard this as an offence of situational violence, that is, violence which occurred in the specific circumstances of the breakdown of his relationship with his then wife. It was not violence at large. He has committed no other offences of violence. The Respondent accepts this. So much can be discerned from the moderate sentence of suspended imprisonment for seven months which was imposed. A breach of the domestic violence sentence was dealt with in June 2017 with an imprisonment period of 12 months, three months of which was to be served in custody. This was because, on various occasions, the Applicant had committed further but in my view, relatively minor offences. There was no increase in the seriousness in his offending nor cumulatively do I consider the offences overall as being worryingly serious. No offence was committed whilst in immigration detention.

    The risk to the Australian community

35. The harm to the community is the likelihood of commission of further minor offences: property, driving, and the use of drugs. I regard the likelihood, however, as remote, having regard to the evidence that I have accepted as to the Applicant’s reformed behaviour.

36. In considering the risk of harm to the Applicant’s former wife, I regard the likelihood of further behaviour of that type as extremely remote. It was situational violence brought about by the breakdown of the relationship. The Applicant was sufficiently distraught at the time to threaten self-harm. I am satisfied on the evidence that he loves his son. In my opinion, he is also not disposed nor capable of perpetrating any harm on his son who is now 10 years old.

37. Overall, I do not regard the Applicant as likely engaging in further criminal or other serious conduct or that he will reoffend.

    Best interests of minor children in Australia

38. I have concluded that a decision to revoke the decision to cancel the Applicant’s visa is in the child’s best interest. The child is now 10 years of age.

1. In considering the best interests of the child, I must take into account the following factors.

2. Although in the past, because of his drug habit, the Applicant had a less than ideal relationship with his child, that has become far more meaningful with contact both personally whilst in immigration detention and by telephone contact. As well, clearly the Applicant wishes to play a positive parental role in the future.

3. I accept his determination and the evidence of his former wife is to similar effect. Having regard to the view I have formed about the Applicant’s prior conduct on the one occasion when he behaved violently in the child’s presence, there is nothing to suggest that he will be other than a positive influence in the future.

4. I further accept the evidence that the original offence came about because the Applicant was trying to make contact with his son albeit in misguided circumstances.

5. I regard separation of the Applicant from the child as having a likely devastating effect on a 10-year-old male. There is no evidence of any other male figure in his life. The former wife is supportive of future contact. She has promoted contact whilst the Applicant has been in immigration detention. Although it would be possible for the child and the Applicant to undertake telephone contact in the circumstances, I regard that as highly undesirable when it would be far preferable for the child to know his father in a much more vivid way. Although the child lives with his mother, I regard normal contact with his father to be essential for the child’s well-being and development.

6. Furthermore, I infer from the former wife’s evidence that the child, who asks often about his father, is desirous of having a proper relationship with him.

7. While the Applicant did commit an offence of violence in the presence of his child, I am persuaded by the former wife’s attitude that the Applicant is not likely to do any harm or visit physical or mental abuse on the child.

8. There is no evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct to which I have referred.

9. I am persuaded that the interests of the child weigh heavily in the overall consideration of the various competing factors whilst giving due weight to the primary considerations of the nature and seriousness of the conduct and the risk to the Australian community. These carry, in my view, substantially less weight in this case.

10. It is relevant to note that, although I have referred to the Applicant’s drug-taking as such, it was brought about by an injury and initially by the use of prescription medication and then overuse of opioids. The Applicant is not, in my estimation, someone who falls within the traditional categorisation of “drug addict”.

    Expectations of the Australian community

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

12. I have regard to these considerations in assessing the facts of this application. No clear test is legislated in terms of this primary consideration even though the expectations should be those of reasonable fair-minded citizens acquainted with all the facts. I am prepared to accept that those expectations would ultimately be in favour of the Applicant.

13. I will deal now with the other considerations.

    International non-refoulement obligations and impact on Australian business interests

14. These are of no relevance in this case.

15. As to the strength, nature and duration of ties, in this matter, there is a strong and significant bond between father and child. The Applicant has limited family ties in Australia. He has a sister who lives in Australia while most of his family reside in Iran. The Applicant has some working history in Australia although due to his criminal offences, he has also had to rely on Centrelink benefits. He has made a limited, positive contribution to the Australian community.

16. Most of his family live in Iran. He has lived in Australia for only nine years. As to the extent of impediments, if removed, I am prepared to accept the Respondent’s submissions that the Applicant suffers from an injury from which he developed reliance on oxycodone. Removal to Iran, so the Respondent accepts, could cause some impediment to his health. Further, returning the Applicant to Iran, in my view, will not create any language or cultural barriers. The Applicant would be unlikely to be isolated.

17. Overall, these considerations, collectively at best, are, apart from the strong and significant bond between Applicant and child, rather neutral in their impact in the Applicant’s favour.

    CONCLUSION

18. The Applicant does not pass the character test. The sole issue for determination is whether I am satisfied that there is another reason why the original decision should be revoked. Having regard to the views I have formed and on application of the principles and requirements of Direction No. 65, I am satisfied there is another reason. This is founded in the view I have formed of the remote likelihood of commissions of further offences the remoteness of risk to the Australian community, the extreme unlikelihood of any offence of violence being committed against the former wife or any other Australian citizen. I take into account the view I have formed that the Applicant is now and is likely to remain, drug-free. I place considerable weight on the interests of the Applicants 10 year old child who resides in Australia. For these and all the other Direction No. 65 matters to which I have referred, I conclude that the original decision should be revoked.

    ORDERS

19. The decision under review be quashed. Order that, in lieu thereof, that the cancellation of the Applicant’s visa be revoked.

    SM Griffin QC

    Dated: 16 May 2018

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 16 May 2018

Date(s) of hearing:	3, 9 and 14 May 2018
Applicant:	In person
Solicitors for the Respondent:	Mr A Ray, Clayton Utz