BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] ARTA 78
•30 October 2024
BCDC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 78 (30 October 2024)
Applicant/s: BCDC
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2021/0604
Tribunal:Deputy President Britten-Jones
Place:Sydney
Date:30 October 2024
Decision:The Tribunal sets aside the decision under review and in substitution decides that the cancellation of the applicant’s visa, made on 11 December 2019, is revoked.
..............................[SGD]......................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class XB Subclass 200 Refugee visa – where the Applicant does not pass the character test - whether there is another reason to revoke the mandatory cancellation - applicant has taken appropriate steps of rehabilitation to address his alcohol abuse – applicant has three minor children and five minor grandchildren whose best interests would be served by revoking the cancellation decision - decision under review is set aside
Legislation
Migration Act 1958 (Cth)
Cases
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Ismail v Minister for Immigration, Citizenship & Multicultural Affairs [2024] HCA 2; 98 ALJR 196CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)
Statement of Reasons
BCDC (the applicant) seeks a review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the respondent).
On 11 December 2019, the applicant’s Class XB Subclass 200 Refugee visa (the visa) was mandatorily cancelled under s 501(3A) of the Migration Act 1958[1] (the cancellation decision) because he had a ‘substantial criminal record’ and was serving a sentence of imprisonment.
[1] All references to legislation are to the Migration Act unless otherwise specified.
The applicant then requested that the cancellation decision be revoked, and he provided reasons for requesting revocation dated 17 December 2019 and 7 November 2020.
On 30 December 2020, a delegate of the Minister decided under s 501CA(4) to not revoke the cancellation decision (the non-revocation decision). This is the decision under review. The applicant sought review in the Tribunal and the cancellation decision was affirmed but the Tribunal’s decision was then set aside on judicial review in the Federal Court. There were a further two Tribunal decisions both of which were set aside by the Federal Court and remitted to the Tribunal. This is the fourth hearing of the Tribunal, and it took place on 24 and 25 October 2024.
The applicant was self-represented. He has poor English, so an interpreter was used during the hearing.
Background Facts
The applicant was born in the Democratic Republic of Congo in 1970 and he came to Australia as a refugee in 2010 with his wife and six children. He and his family had fled to a Ugandan refugee camp in about 2006 because his brother had been killed and he feared the government would target him because of his family’s alleged connection to rebels. This was a very traumatic experience for him and his family, and he has suffered some post-traumatic stress disorder (PTSD) as a result. The family came to Australia and settled in Toowoomba in Queensland. Two more children were born in Australia.
Despite having suffered trauma and not speaking good English, the applicant found work at the local council as a gardener and then later in a meat factory and a chicken farm. He has never had difficulty obtaining work, but when he developed problems with alcohol there were periods of unemployment and his marriage broke down.
The applicant was introduced to alcohol in Australia for the first time and it has been a significant contributor to his criminal behaviour and particularly his domestic violence against his wife.
Legislative Framework
Under s 501(3A), 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
The applicant does not pass the character test. The only issue for the Tribunal is whether there is another reason to revoke the cancellation decision. In considering this issue, the Tribunal is bound by s 499(2A) to comply with Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the primary and other considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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 noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
The other considerations are:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
I note that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[2]
[2] Direction 110 at 7(2).
CONSIDERATION
Protection of the Australian community – 8.1 of the Direction
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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. As required by paragraph 8.1(2) of the Direction, I give consideration below 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.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of the Direction
The applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.[3] It records his first conviction for contravention of a domestic violence order on 19 July 2016 by attending at his wife’s residence. The applicant was fined $300. There were further convictions for contravening domestic violence orders on 10 January 2017 (probation ordered for 9 months), 4 March 2019 (6 months imprisonment for two aggravated offences) and 1 November 2019 (6 months imprisonment for an aggravated offence). The most serious domestic violence offence (resulting in a conviction) was committed on 17 February 2018 for which the applicant was sentenced to 2 years imprisonment in the Brisbane District Court. I will consider these offences, together with related domestic violence, further under paragraph 8.2 of the Direction.
[3] RB1 p 29 - 31.
The applicant was convicted for a series of offences involving intoxication, assaulting or obstructing police, damaging property, public nuisance and breach of bail on 23 November 2016, 25 August 2017, 13 November 2017, 16 January 2019, 6 February 2019, 4 March 2019, 10 April 2019, 17 April 2019 and 1 November 2019. Most of these convictions were dealt with by way of fines imposed in the local magistrates court.
The applicant was convicted for drink driving in 2011, 2013, 2016 and 2018. There were other traffic offences such as licence suspensions and driving whilst disqualified. This shows a disregard for authority and a failure to learn from his mistakes.
The seriousness of this offending is reflected in the custodial sentences imposed. The applicant was in prison for most of 2018, for a period in 2019 and then from September 2019 up until he was taken into detention in June 2020.
The applicant’s crimes are viewed very seriously by the Australian government and community because they included repeated driving offences, acts of family violence and intimidation and acts against police officers in the course of their duty. Further, there was frequent more serious offending from 2016 to 2019 with a very significant cumulative effect. The applicant was given numerous warnings and yet he continued to abuse alcohol and to offend. Despite losing his licence, he continued to drink drive. Despite the imposition of protection orders which were designed to protect his wife and children, he disregarded them and continued to cause his wife and children fear over a long period of time. The impact on his family cannot be overstated.
The applicant clearly had a problem with alcohol which contributed to nearly all of his offending. There is also a reference in the sentencing remarks of a magistrate in May 2016 that his exposure to violence before arriving in Australia has caused PTSD consistent with his anger management problems, which was another contributor to his offending.
I conclude that the nature and seriousness of the applicant’s conduct is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of the Direction
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[4] As required by paragraph 8.1.2(2) of the Direction, I also 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 other 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).
[4] Direction 110 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of the Direction
[5] (2014) 225 FCR 424; [2014] FCA 673.
If the applicant were to engage in further similar criminal offending, the nature of the harm would be serious particularly because of the number of offences and the repeated acts of family violence which had a devastating impact on his wife and children. The applicant’s alcohol abuse resulted in violence towards his family and the police and put the wider community in danger through his drink driving.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of the Direction
The applicant has expressed remorse for his offending and says that his lengthy period in prison and detention has given him the opportunity to reflect and understand the impact of his conduct and how not to repeat it. The effect of the evidence from the applicant is that he has learnt his lesson and that he will not offend again because he is sworn off alcohol. The applicant’s stated intention of not re-offending is a positive factor but it must be seen in the context of his failure in the past to learn from his mistakes and to continually reoffend despite warnings. This is reflected in the sentencing remarks of the magistrate on 1 November 2019 who accepted his pleas of guilty but said:
The reality is, however, that you have been convicted six times before of breaching domestic violence orders… And for another breach of a domestic violence order, you got six months imprisonment. And you have committed this offence only six months after that sentence. That is a serious aggravating feature that indicates that you just do not get it. …
… So the fact that you persist in all of those things indicates that a deterrent penalty is required both to punish you and to reinforce the message to you that these things are not going to be tolerated.
The applicant pleads with the Tribunal that his period of incarceration outside of the community since those sentencing remarks in November 2019 has finally had the effect of teaching him a lesson to not reoffend. The applicant referred to steps he has taken to rehabilitate himself by completing relevant courses whilst in detention and abstaining from alcohol and drugs (which are freely available in detention). Between September 2021 and February 2022, the applicant completed courses in anger management, drug and alcohol abuse and domestic violence. He repeated these courses in August 2024.
The applicant was cross examined about what he learnt from these courses, and I was very impressed with his answers. He said that he learnt how to control his emotions, and to step away and take a few deep breaths when a situation arises. He understands how alcohol has been such a bad influence on him and he repeatedly told the Tribunal that he will never touch it again. He has learnt that domestic violence is a very bad thing and that it is not tolerated in this country. Although the applicant is not very articulate, he demonstrated to me by these answers that he has a genuine insight into the seriousness of his past offending, its impact on his family and the wider community and how alcohol and anger management issues had been a major contributor to his poor behaviour. The applicant understood that he needed to address his alcohol and anger management issues and he has done so by completing appropriate courses and by reflecting over the last five years.
If the applicant is released he will live in Sydney with his oldest daughter and son-in-law and their five children. The oldest daughter is currently unwell having suffered a serious brain injury, but she supports her father’s release and has written a letter describing him as a loving, caring and responsible father. She wrote on behalf of all the children and acknowledged his past mistakes. The son-in-law gave written and oral evidence to the Tribunal. He is aware of the applicant’s past alcohol abuse but says he will help him, as will the members of the local church community. He described how close the applicant is to his oldest daughter and how it will help with their children. I consider this to be a very stable and wholesome environment which will reduce the likelihood of alcohol relapse and further crime.
In my opinion the likelihood of further criminal conduct is low to moderate which I do not consider to be an unacceptable risk to the Australian community.
Conclusion as to 8.1 of the Direction
In considering the protection of the Australian community, I take into account that remaining in Australia is a privilege for the applicant who has not been law abiding and who has caused and threatened harm to his family and other members of the Australian community. However, he has shown genuine remorse and contrition both through his evidence to the Tribunal and his conduct over the last five years since his last drink and his last offence.
I have no doubt that if the applicant lapses into alcohol abuse if released into the community, he will find himself in trouble with the law again. In my view the applicant has a very clear understanding about this. It is true that he repeatedly offended for a long period of time in the community after numerous warnings, but the difference this time is that he has had a five-year period of alcohol abstinence and reflection in prison and detention, and he has engaged in appropriate rehabilitative courses which address the very issues that contributed to his past offending. He has the added motivation of helping his oldest daughter recover from her injuries and helping more generally with her family.
The protection of the Australian community is a factor that weighs against revoking the cancellation decision, but if the applicant were released, I do not consider that the safety of the Australian community would be subjected to an unacceptable risk because it is unlikely that the applicant will reoffend. Accordingly, I give this factor moderate weight in determining whether there is another reason to set aside the non-revocation decision.
Family Violence – 8.2 of the Direction
The applicant has engaged in family violence which has had a devastating impact on his wife and children. In considering the seriousness of the family violence engaged in by the applicant, the following factors in paragraph 8.2(3) are 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
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
In what can only be described as a drunken rage on 15 April 2013, the applicant head-butted his wife and punched her three times to the head. Their baby child was scratched during the incident. This was the first episode of domestic violence, and it resulted in a protection order being made on 18 April 2013.
After a move from Toowoomba to Brisbane with his wife and children in 2016, the episodes of domestic violence became more frequent.
On 2 May 2016, the applicant accused his wife of cheating on him and then grabbed her around the neck and threatened to kill her. He was drunk at the time. This resulted in a temporary protection order being made on 9 May 2016 which prohibited the applicant from approaching his wife or her residence. The applicant immediately breached the order by attending the residence on 26 May and asking to stay because he had nowhere else to go. The applicant was effectively homeless at this stage, sleeping in the park or at friends’ houses. The temporary order became a 2-year order on 30 May 2016. He breached the order again on 19 July 2016.
On 2 January 2018, the applicant was staying in the garage of his oldest daughter and got drunk. His daughter kicked him out. A month later, on 2 February 2018, the applicant breached the order by attending at his wife’s residence. There was a more serious incident on 17 February 2018 which resulted in the 2-year sentence of imprisonment. He entered the residence uninvited and caused fear to the family and screamed “For me to be satisfied I need to end her life. I don’t care if I get locked up, I just need to kill her.” He then picked up a knife and showed it to his daughter who said she was going to call the police. The applicant denies the incident with the knife and says he would never harm his children, but he admitted he was drunk. By this stage the applicant had lost his job and was suffering as a result of being separated from his wife. He was abusing alcohol. He admitted intimidating his wife but said he would never kill her.
The applicant was in prison from March to November 2018.
The applicant threatened and abused his wife again on 6 September 2019 when he saw her with her boyfriend. He said to them, “I give you both two weeks. You both will be dead.” He was drunk at the time. This incident resulted in another term of imprisonment for 6 months. The magistrate in sentencing him said:
How, after all this time and all of these convictions, you still do not understand that you cannot commit acts of domestic violence is beyond me. To not only breach the terms of the order, but to make death threats against your wife is both disgraceful and mind-blowingly the stupid.
It must have been apparent to you, after nine years in Australia, that this country is a little bit different to the Congo. And we do not tolerate domestic violence or violence or death threats or the breaching of Court orders.
In summary, the applicant has engaged in numerous acts of domestic violence in the period from 2013 to 2019. It continued despite numerous warnings by way of protection orders and after their relationship had ended. It included one episode of serious physical violence (on 15 April 2013), two episodes of threats to kill (on 17 February 2018 and 6 September 2019) and numerous other breaches of protection orders which caused fear to his wife and children. The violence involved the children and was frequent with a significant cumulative effect.
In terms of rehabilitation, the applicant completed two courses on domestic violence whilst in detention. He understands that he had a problem with alcohol abuse and anger management and that these were the most significant contributors to his violent behaviour towards his wife. When giving evidence to the Tribunal he expressed genuine remorse and accepted responsibility for his actions. I believe that he has a good insight into the harm that he caused and the reasons for it. He has taken steps to address those reasons. He has not been tested in the community, but he has now had five years without alcohol, and he has used this time to reflect and to rehabilitate himself. He knows that domestic violence is wrong. Another factor in terms of risk is that his ex-wife lives in Brisbane, and he has decided to live in Sydney with his oldest daughter, her husband and their five children. This will provide a stable environment where he is surrounded by good persons. He will not go to Brisbane, but he hopes that his other children will come to Sydney to visit him.
The physical violence, threats to kill and constant breaches of protection orders over a seven-year period is extremely serious behaviour which the Australian government views very seriously. He has shown good signs of rehabilitation and if he avoids an alcohol relapse, I consider it is unlikely that he will engage in further domestic violence. I am confident that he has learnt his lesson and that he will stay alcohol free because he understands the consequences if he does not do so. It follows that I believe that he is a low risk of further domestic violence, but even a low-risk weighs heavily against the applicant.
I conclude that this consideration weighs heavily against revoking the cancellation decision.
Strength, Nature and Duration of Ties to Australia – 8.3 of the Direction
This primary consideration provides at paragraph 8.3 of the Direction:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has eight children and six grandchildren in Australia. The applicant’s oldest daughter wrote on behalf of the other children saying, “We miss our dad.” The applicant said that he was an active father in his children’s life before the protection order was taken out. He picked them up from school and social events and took them to church, as well as teaching them how to sing. I believe that the applicant’s adult children would be adversely impacted if he were not released from detention.
The applicant’s son-in-law said that the applicant was very close to his oldest daughter. She has recently suffered a severe brain and back injury and she would appreciate the support that the applicant could provide if released and living with them. The applicant’s son-in-law said that “His presence is crucial for her emotional well-being and for the overall stability of our family.” I believe that non-revocation of the cancellation decision would have a devastating impact on the daughter and had her family. This is a significant factor in terms of whether there is another reason to revoke the cancellation decision.
With respect to other ties that the applicant has to Australia, I take into account his connection to the community through his church activities and his work, which were strongest in his first six years in Australia before his separation from his wife and children. In that period, he worked and attended church regularly with his children. The Vice President of the Darling Downs African Communities Council in Toowoomba wrote a letter of support and gave oral evidence attesting to the applicant’s positive role in the African community. He organised children in the community to play soccer and he helped others to get employment including at the chicken factory which was his last job. When the applicant first arrived, he worked as a gardener at the local council, then in a meat factory and other jobs. He provided much needed financial support for his family. I consider this to be a significant period of positive contribution to the Australian community, but it was marred by his drinking and, in particular, his violence towards his wife in April 2013.
The applicant was 30 years old when he arrived in Australia in 2010. He has spent the last 14 years in Australia, although about six of those years has been in prison or detention. Through his family, work and church activities, the applicant has demonstrated significant positive ties to Australia. This is a factor that weighs heavily in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of the Direction
I must determine whether non-revocation of the cancellation of the applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[6]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[6] Direction 110 at 8.4(4).
The applicant has three children aged 10, 13 and 16 years old.[7] His other five children are over 18 years old. The applicant also has five minor grandchildren in Sydney from his oldest daughter and one other minor grandchild in Brisbane. I give no material weight to the grandchild in Brisbane about which there is no probative evidence.
[7] There is some uncertainty in the evidence as to whether this 16 year old is in fact 18 years old but it would not alter my decision either way and I have decided to accept the applicant’s evidence that he is 16 years old.
Before May 2016 when the 2-year protection order was made, the applicant lived with his children and acted as an active father in their lives. On 2 November 2020, the oldest daughter wrote on behalf of all the children that they missed him and wanted him to be set free. She described the applicant as a “loving, caring and a responsible father.”
I accept that the applicant’s minor children want their father to be released and that they miss him. I determine that non-revocation of the cancellation decision is not in the best interests of these three children, but I give this factor less weight because of the long periods of absence and limited meaningful contact since 2016 and because of the applicant’s domestic violence in front of the children and the risk, albeit low, of any further domestic violence. If released, I would expect the applicant to play some positive parental role in the future for these children, but the extent of that role is unclear because the applicant plans to live in Sydney and the children live in Brisbane. The applicant told the Tribunal that he hoped the children would visit him in Sydney but that he would not go to Brisbane because he wanted to ensure that he had no contact with his ex-wife.
With respect to the five grandchildren in Sydney, I consider that it would be in their best interests if the applicant were released and able to live with them as planned. These children are currently being looked after by their father because the mother (the applicant’s oldest daughter) has suffered a very severe brain injury and has left the family home temporarily. The son-in-law said in his letter of support dated 28 September 2024:
Despite being in immigration detention, [the applicant] has maintained regular communication with us and has been a constant source of emotional support, particularly during an extremely challenging period for my family. In 2024, my wife … sustained a severe brain and back injury, which resulted in her being in a coma for over three months, followed by a recovery period of nine months. During this time, [the applicant] transferred from Yongah immigration detention to Villawood immigration detention to be closer to his daughter and provide her with emotional and physical support. Although his visits to the hospital were limited, his presence and care were invaluable to my wife during her recovery.
Additionally, his grandchildren greatly benefited from his visits, finding comfort in his presence. They often talk about how much they enjoyed spending time with their grandfather during those hospital visits and continue to express how much they miss him. My wife, who now suffers from permanent brain injury, continues to emphasise her need for her father’s support. His presence is crucial for her emotional well-being and for the overall stability of our family.
I take into account that the applicant’s relationship with these five grandchildren is non-parental, and he has had limited or no meaningful contact with them. I take into account that the applicant’s drunken behaviour caused his daughter to kick him out when he was living with them in the garage, but I do not expect that to be repeated given that he has said that he will never touch alcohol again.
I believe that it is critical to the best interests of these five grandchildren that the applicant be released so he can help bring them up whilst his daughter recovers (if she can). This will be an obvious help to his daughter but also to the son-in-law because it will allow him to return to work and provide much needed income to the family. The benefits provided to the parents will flow through to their children. I place a significant amount of weight on the interests of these five grandchildren.
I conclude that, taking into account the best interests of the three children and the five grandchildren, this primary consideration is very significant in terms of whether there is another reason to revoke the cancellation decision.
Expectations of the Australian community – 8.5 of the Direction
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[8]
[8] Direction 110 at 8.5(1).
Paragraph 8.5(4) of Direction 110 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. In this regard, the High Court recently stated in Ismail v Minister for Immigration, Citizenship & Multicultural Affairs[9] in relation to the equivalent paragraph in an earlier version of the Direction:
Paragraph 8.4 (“Expectations of the Australian community”) involves an assessment in which the decision-maker is required to consider that the Australian community, as a norm, expects the Australian Government not to allow a non-citizen who has engaged in serious conduct in breach of Australian law to enter or remain in Australia. This assessment under para 8.4 thus focuses on the expectations that Direction 90 itself (by para 8.4(1)-(3), applied as required by para 8.4(4)) instructs the decision-maker that the Australian community holds about the response of the Australian Government to a non-citizen seeking to enter or remain in Australia if they have committed serious breaches of Australian law.
[9] [2024] HCA 2; 98 ALJR 196 at [38] (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ)
Later in its reasons, the Court said (at [51]–[52]):
Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government’s views as set out in para 8.4 “without independently assessing the community’s expectations in the particular case”.
The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was serious, but the applicant has addressed the causative factors and I do not consider there is an unacceptable risk of further re-offending. Nevertheless, the Australian community expects that the Australian government should cancel a visa if there are serious character concerns because of acts of family violence, commission of serious crimes against women and crimes against police officers in the performance of their duties.
This is a factor that weighs heavily in favour of non-revocation of the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, but these are not exhaustive.[10]
[10] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of the Direction
The applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for not cancelling the applicant’s visa. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to the Democratic Republic of Congo. That claim is made both on the basis upon which he was previously granted a Refugee visa in 2009, as well as his status as a person removed from Australia on criminal justice grounds.
I note that the risks of harm that the applicant will face if removed are also relevant to non-refoulement obligations and the extent of impediments if removed.
The respondent submits that the Tribunal is entitled to and should defer consideration of non-refoulement obligations because it is open to the applicant to apply for a protection visa.
The applicant has not applied for a protection visa, but it is open to him to do so. Consequently, the applicant is not the subject of a protection finding (as defined in s 197C) and paragraph 9.1.2 of the Direction is relevant:
9.1.2 Non-citizens not covered by a protection finding
(1)Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2)However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3)Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or nonrevocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
The decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs[11] (Plaintiff M1/2021) provides that I am required to read, identify, understand and evaluate the representations made by the applicant. Those representations included a claim of non-refoulement under domestic law. I intend to defer assessment of whether the applicant is owed non-refoulement obligations because it is open to the applicant to apply for a protection visa. That does not mean that I ignore the representations made by the applicant. Plaintiff M1/2021 makes it clear that a decision-maker must not do that,[12] but ‘one available outcome’ is the deferral of the substantive assessment of such a claim.[13] This is consistent with the terms of paragraph 9.1.2 of the Direction.
[11] [2022] HCA 17.
[12] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [23].
[13] CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124 at [105].
In this case, the applicant has expressed a fear of what will happen if he is returned to the Democratic Republic of Congo. His written statement of 24 March 2022 provides details of how his younger brother was killed by soldiers in 2006 because of an alleged business connection with rebels. The applicant’s claim to be a refugee was assessed by representatives in Uganda of the United Nations High Commissioner for Refugees who concluded in a report dated 2 October 2008 that the applicant and his family should be resettled in a third country on the following basis:
UNHCR has carefully assessed the applicant’s case and established that the applicant and his wife have a well-founded fear of persecution on grounds of imputed political opinion… As shown above, the applicant’s family was attacked by unidentified soldiers on false accusation of selling medicine to the Mayi Mayi rebels. Owing to the accusation, the unidentified soldiers abducted the applicant’s wife and held her in captivity for one night. During time, the applicant’s wife was brutally beaten and repeatedly raped by the unidentified soldiers. Further, the unidentified soldiers killed the applicant’s brother when they failed to find the applicant and his wife.
Presently, it is highly probable that the applicant and his wife would be subjected to the same persecution as before by the unidentified soldiers because of the false accusations levelled against them by the unidentified soldiers. It is noted that various rebel groups and government forces continue to be active in eastern DRC are subjecting civilians to serious human rights abuses with impunity.
The applicant maintains that if returned, he will be persecuted or subject to arbitrary killing because of his family’s alleged support of rebel groups. Although he does not know with certainty the identity or association of the soldiers that shot and killed his brother, he believes that they were government soldiers or members of a pro-government militia.
Assertions of a current risk of harm are difficult to assess and are more appropriately dealt with as part of any future application for a protection visa. Nevertheless, on the basis of the applicant’s evidence and some more recent country information, I am prepared to accept that he would face a risk of harm if returned to the Democratic Republic of the Congo. The applicant may come to the attention of the authorities because of his criminal record in Australia when he arrives. This is a factor that weighs in favour of revoking the cancellation decision.
Because the applicant can apply for a protection visa, an adverse Tribunal decision will not necessarily result in the applicant’s removal to the Democratic Republic of Congo. The applicant would not be liable for removal whilst a valid protection visa application was being determined. However, he would remain in detention and therefore I take into account the ongoing deprivation of the applicant’s liberty.[14]
[14] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 463 at [136].
Extent of impediments if removed – 9.2 of the Direction
The Direction requires that I consider the extent of any impediments that the applicant may face if removed from Australia to the Democratic Republic of the Congo in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The Applicant gave evidence to the Tribunal that he is in relatively good physical and mental health, although he has suffered some mental health issues whilst in prison or detention. The applicant has not been in the Democratic Republic of the Congo since 2006 and he has no family or other support there. Country information indicates ongoing security issues which, in his circumstances, would present difficulties to the applicant in re-establishing himself. He is not likely to face substantial language barriers. This is a factor that weighs in favour of the applicant, but I do not give it considerable weight because the difficulties he would face are not insurmountable.
Impact on Australian business interests – 9.3 of the Direction
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community and family violence weigh against the applicant, but I consider that these factors are outweighed by the countervailing considerations of ties to Australia, best interests of minor children, legal consequences and extent of impediments if removed.
The applicant has taken appropriate steps to address the causative factors that contributed to his criminal past including his family violence. The applicant came to Australia as a refugee having fled in fear of his life to neighbouring Uganda from the Democratic Republic of the Congo. Despite a traumatic background, the applicant set himself and his family up in Australia and started to work but unfortunately, he succumbed to alcohol abuse which led to criminal activity including family violence directed towards his wife. He now recognizes how wrong that behaviour was, and it is unlikely, in my opinion, that he will engage in any further family violence. For that reason, the safety of the Australian community does not face an unacceptable risk. He is fortunate to have a loving daughter and son-in-law who will accept him into their home. Looking after the five grandchildren and his daughter will give the applicant some purpose and incentive to not re-offend. If he were removed to the Democratic Republic of the Congo, he would face a risk of harm and his daughter and son-in-law would not receive the benefit of the support that he can offer to their family. His children and grandchildren are better off with him in their lives.
It is critical for the applicant’s future that he not relapse into alcohol abuse. I am confident that he will not relapse because he has abstained from alcohol for five years and he is committed to building a better life for himself and his family.
Having weighed all the factors for and against revocation of the cancellation decision, I am satisfied that there is another reason to revoke that decision so that the applicant can be released.
DECISION
The decision of the Tribunal is to set aside the non-revocation decision and to substitute a decision that the cancellation decision is revoked.
Date(s) of hearing: 24 and 25 October 2024 Applicant: In person Solicitors for the Respondent: Mr A Taverniti, Sparke Helmore
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