BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1574
•2 June 2021
BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574 (2 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1502
Re:BHHX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:2 June 2021
Place:Sydney
The decision under review is set aside and the matter is remitted to the Respondent with a direction that the Applicant is not a person to whom paragraph 501(1)(d)(i) of the Migration Act applies.
...........................[sgd].............................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – refusal of protection visa – finding of good character – discretion to refuse visa – Direction No. 90 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – international non-refoulement obligations – effect of impediments – links to the Australian community – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Crimes (Domestic and Personal Violence) Act 2007 (NSW),
Crimes (Sentencing Procedure) Act 1999 (NSW)Migration Act 1958 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562
AOU21 v Minister for Home Affairs [2021] FCAFC 60 (27 April 2021)
BHL19 v Commonwealth of Australia [2021] FCA 462 (29 April 2021)
Commonwealth of Australia v AJL20 [2021] HCATrans 68 (13 April 2021)
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 (30 April 2021)
Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Re QKVH and Minister for Home Affairs [2018] AATA 1855
Secretary, Department of Social Security v Ekis (1998) 85 FCR 382
Tran v Commonwealth of Australia [2021] FCA 580WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
2 June 2021
INTRODUCTION
The Applicant, given the pseudonym ‘BHHX’ in this matter, seeks review of a decision by a delegate of the Respondent (the Minister) to refuse to grant the Applicant a Temporary Protection (Class XD) visa (‘the protection visa’) under subsection 501(1) of the Migration Act 1958 (Cth) (‘the Migration Act’) (‘the decision under review’).
BACKGROUND
The Applicant is a 24 year old Iranian citizen. In 1991, as a five year old child, he witnessed a car accident in which five members of his family, including his father, were killed.[1] His mother believes that the crash was politically motivated, and some years later she chose to leave Iran and embarked on the perilous journey to Australia with her son and daughter, at the mercy of people smugglers. They travelled the final stage from Indonesia on a small boat, exposed to fate and the natural elements. They were lucky to survive. It must have been a traumatic experience for a mother and two teenage children.
[1] G2 at 294, 465.
In June 2013, they arrived at Christmas Island and the Applicant was processed as an unauthorised maritime arrival (UMA).[2] He was then 16 years old.
[2] For movement records, see G4 at 400, 787.
In September 2013,[3] the Applicant was granted a Bridging Visa (WE-050) and a Temporary Safe Haven Visa (Class UJ-449).
[3] G5, 788.
In April 2017, the Applicant applied for the protection visa.
The Applicant’s Bridging Visa was subsequently cancelled. The parties agree that this occurred on 7 March 2018, after he was charged with a criminal offence.[4] He entered Villawood Immigration Detention Centre (‘VIDC’) in Sydney. He was then 21 years old and has not been at liberty since.
[4] The date of cancellation is not specifically verified by documentation before the Tribunal but the Tribunal accepts that the Bridging Visa was cancelled.
Subsection 501(1) of the Migration Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. On 5 March 2021, a delegate of the Minister refused to grant the protection visa (that being the decision under review).
The Minister’s delegate found that the Applicant did not pass the character test as set out, relevantly, in paragraph 501(6)(d)(i) of the Migration Act. The delegate considered that there was an ‘ongoing likelihood that [the Applicant] will reoffend’, and concluded that in the event that he was allowed to remain in Australia, there is a risk that he ‘would engage in criminal conduct’.[5] No other ground specified in subsection 501(6) was referred to as a basis for finding that the Applicant did not pass the character test.
[5] G2 at 22-23.
The delegate also decided to exercise the discretion under subsection 501(1) to refuse to grant the protection visa.[6] The delegate was not satisfied that the likelihood of the Applicant reoffending was ‘negligible’, and found that there was an ‘unacceptable’ risk of harm to the Australian community.[7]
[6] G2 at 26.
[7] G2 at 26, paragraph 49.
The delegate’s decision was made by reference to Direction No. 79, which has since been replaced by Direction No. 90 (‘the Direction’).[8]
[8] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA. Direction No. 90 came into effect on 15 April 2021.
On 15 March 2021, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) to review the decision of the delegate not to grant the protection visa. The Tribunal heard the application by videoconference on 20 and 21 May 2021. The Applicant was represented by a solicitor.
THE TRIBUNAL HEARING
The Respondent’s solicitor contended that the Applicant does not satisfy the character test on the basis that there is a risk that the Applicant, if allowed to remain in Australia, would engage in criminal conduct: s 510(6)(d)(i) of the Migration Act. No other ground has been relied upon by the Respondent in relation to the character test.
The Applicant’s solicitor did not concede that the Applicant did not satisfy the character test. He also argued that, even if he was found not to satisfy the character test, the discretion to grant a temporary protection visa should be exercised in the Applicant’s favour. He relied on an overall assessment of the nature of the offending, together with mental health assessments that were said to be relevant to future behaviour, and his status as a person to whom Australia owed protection obligations.
Protection owed to the Applicant – the effect of recent changes to the Migration Act?
The Respondent’s solicitor informed the Tribunal that the Applicant has been found to be a person in respect of whom Australia has protection obligations (a ‘protected person’) and accordingly non-refoulement obligations in respect of the Applicant’s country of origin, Iran.[9] She noted that legislation was in the final stages of enactment that would amend the Migration Act to significantly restrict the circumstances in which a protected person could be removed from Australia under sections 197C and 198 of the Migration Act.[10] The Tribunal requested the parties file and the Tribunal received submissions in relation to the impact of this legislation.
[9] G2 at 16.
[10] Migration Amendment (Clarifying International Obligations for Removal) Bill 2021.
The amending legislation passed both Houses of Parliament on 13 May 2021 and received Royal Assent three days after this matter was heard, on 24 May 2021. The amendments to the Migration Act commenced on 25 May 2021.
These amendments create very serious complications in this case. If denied the protection visa, it is possible that the Applicant will be subject to indefinite detention. The relevance of these amendments and their effect in this case are considered in more detail later in this decision.
APPLYING THE CHARACTER TEST
I turn to consider whether I am satisfied that the Applicant passes the character test.
Paragraph 501(6)(d)(i) of the Migration Act, the only ground of the character test the Applicant is said to fail in this case, states that a person does not pass the character test if, in the event the person was allowed to remain in Australia, ‘there is a risk that the person would engage in criminal conduct in Australia’.
Under subsection 499(2A) of the Migration Act, decisions under the Migration Act must be made with regard to any written directions given by the Minister under the Act. In this case, the Tribunal must have regard to the Direction (as above, Direction No. 90).
I note that the Annex to the Direction provides guidance on applying the character test and assessment of risk and states relevantly (emphasis):
6. Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
I note the substitution of the word ‘will’ for ‘would’ in paragraph 6.1(1) of the Direction, relating to paragraph 501(6)(d)(i) of the Migration Act. I do not think the words ‘will engage’ should be used in substitution for the statutory expression ‘would engage’. It involves a subtle but discernible shift in meaning.
The key words ‘risk’ and ‘would engage’ and ‘criminal conduct’ appear in a composite phrase which should be applied as it stands. It is not particularly helpful to construe or qualify the words in isolation or to substitute one word for another. As noted by Drummond J in Secretary, Department of Social Security v Ekis (1998) 85 FCR 382 at 385:
“Interpreting a composite phrase by dissecting it into its component words and seeking a meaning for each has, however, long been identified as an inappropriate method of construing such a phrase ...”
To ask whether there is a risk that a person ‘would engage in criminal conduct’ is not the same as asking whether they ‘could engage’ or ‘will engage’. It is not the same as asking whether there is any risk or no risk. The expression implicitly recognises that some level of risk is acceptable. The encroachment of the criminal law into every aspect of human life and the proliferation of no-fault strict liability offences, especially in the area of traffic and other safety related areas, would make a no-risk standard impossibly strict.
I do not think that the composite phrase requires the exclusion of the bare possibility of engaging in future criminal conduct, nor do I think that it is helpful to try to verbally distinguish the borderline between acceptable and unacceptable risk.
I note the insertion of the words ‘more than a minimal or remote’ into the test in paragraph 6(2) of the Direction:
‘there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in any of the conduct specified in section 501(6)(d) of the Act.’
The substitution of the words ‘minimal or remote chance’ for ‘risk’ is in my view an example of the ‘inappropriate method’ identified by Drummond J. The analysis of risk in terms of probabilities or chance is not required by the terms of paragraph 501(6)(d) of the Migration Act. It may suggest that conduct which involves merely a ‘minimal or remote’ chance of causing harm is protected even if there is no social purpose for the taking of any risk at all (such as tossing stones at random over a perimeter fence into the unpatrolled space beyond). It is questionable whether the words ‘minimal or remote’ and ‘chance’ should be used in substitution for the words of the statutory provision. It is safest to keep to the statutory formula.
THE OFFENDING RECORD
Prior to the cancellation of his Bridging Visa, and his removal to immigration detention, there were two incidents that gave rise to criminal charges. They occurred in 2015 and 2018, when he was 18 and 22 years old. The state of evidence relating to each is unsatisfactory.
The Respondent did not call any witnesses in relation to any of the incidents. In all but one case, which occurred later in immigration detention, the summons material presented to the Tribunal did not include any sentencing comments. The Respondent’s solicitor relied upon police notes as evidence of that which transpired.
The Applicant’s solicitor quite properly objected to all and any of the police notes on the basis that they were hearsay and prejudicial and had no probative value.[11] I ruled that the police notes provided a convenient point of departure for the Respondent’s cross examination and could be received for that purpose. Given the scope of paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), I did not consider it necessary to rule on the admissibility of this material, although I am sensitive to the objections raised by the Applicant’s solicitor.
The first incident – 1 February 2015 (age 18)
[11] For example, SM2 at 65.
In 2014, the family relocated to Sydney and the Applicant got a job working at a restaurant. The Applicant told the Tribunal that he was attacked while walking alone from work in the early hours of the morning. He was injured to the point of needing medical treatment in hospital for his right ear.
According to the police notes tendered by the Respondent, the Applicant ran to a police car (it is not clear whether the car was cruising past or responding to a call) and knocked on the rear window yelling: “Ten minutes. It took you ten minutes!”. Some bloody phlegm landed on the car window and one of the occupants. He was then charged with assaulting a police officer in the execution of duty and damaging the car window.
He was sentenced to a 12 month good behaviour bond.[12] There are no sentencing comments available to the Tribunal.
[12] G2 at 32.
The Applicant told the Tribunal that he had no clear recollection of spitting at anyone. Apparently, there was no CCTV footage of the incident.[13] He said that he was very upset and angry because he had just been assaulted.[14] His Personal Statement is as follows:
It was a Saturday night. I was working in the restaurant I finished my work around 12:00 Am. After that, I went to the park for a cigarette. On the way to go back home around 1:00 am while I was passing through the Burwood station on the side there were the group of the young people. They asked for a spare cigarette, I denied politely, which made one of them aggressive then escalated quickly. So, one of them asked me to have a fight which made me very scared, so I just kept walking quickly on the opposite side. However, suddenly I was punched hard from the back, and I started feeling dizzy. However, I was managed to go towards the pedestrian walk. I fell down, after that I was kicked and stomped everywhere then I tried to stand up. Again, I was kicked hard, I was stabbed or cut with a sharp object in my head for which I had stitches, and after that, they all ran away and left me bleeding. Suddenly I saw the police car, so I was excited and very impulsive. I started banging on a police car. After that, the officer opened the window and told me to wait till he parked the car, which made me angry, as I thought I am being ignored. Then, to have the attention I spitted on the officer, which was a shameful and disgraceful act which I still feel remorse and regret about that. Ultimately, the ambulance took me to the hospital. As a result of my shameful action, I had to face court so, during that time, I had pleaded guilty on the charge of assaulting an officer. However, I am still not sure regarding the destroying and damage property charge.[15]
[13] Annexure B to the Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’), 12.
[14] G2 at 439.
[15] G2 at 439.
This was his first contact with the criminal justice system.
The second incident – 6 March 2018 (age 22)
On 5 March 2018, the Applicant was employed by OW in a trade, but was terminated by OW’s manager at the end of the first shift.[16] The following day he spoke to OW on the phone. According to what OW told the police, he refused to pay him unless he returned some tools. The Applicant became abusive when OW described him as unprofessional. OW then went to the police to report the incident.[17]
[16] G2 at 36; Annexure
[17] Annexure B, 7
The notes record that while OW was at the police station his wife called him to say that a man was outside the house and knocking on the door.[18] The police went to OW’s home and viewed some CCTV footage which showed a man, identified as the Applicant, damaging OW’s car with a blunt object. The Applicant was arrested just before midnight on 6 March 2018. A lawyer could not be arranged and he agreed to be interviewed without one but made no comment.
[18] G2 at 38.
The Applicant told the Tribunal that he was very angry because OW was refusing to pay him. He said that much of the language used was in Arabic. He denied some of the more abusive language used but said that he was very upset. He denied that he refused to return his tools.
Neither the CCTV footage nor transcripts of the SMS exchange were included in the material before the Tribunal.
On 7 March 2018, the Applicant was convicted in the Local Court of NSW of using a carriage service to menace/harass/offend.[19] He was released without passing sentence pursuant to s 20(1)(A) of the Crimes Act 1914 (Cth) (‘the Crimes Act’) upon entering into a recognizance to be of good behaviour.[20]
[19] Criminal Code Act 1995 (Cth), s 474.17(1).
[20] SM3, 189.
There are no sentencing remarks before the Tribunal and it is not clear what was put to the magistrate. It appears that the police account is based on what OW told the police. OW was not called as a witness in the present proceedings.
On 7 March 2018, the Applicant also received a provisional Apprehended Violence Order, requiring him to stay away from OW. Presumably this order was made before the Applicant was removed to immigration detention.
On 19 July 2018, he was convicted in the Local Court of NSW of further charges arising out of the events involving OW in March; one count of damaging property valued at less than $2000;[21] and one count of stalk/intimidate.[22] He entered into an 18 month good behaviour bond for these offences.
[21] Crimes Act 1900 (NSW), s 195(1)(A).
[22] Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1).
Considered in isolation, these pre-detention incidents may suggest a tendency to abusive language or behaviour when reacting to stress. Given the Applicant’s youth and lack of criminal record, it is not surprising that they were dealt with leniently.
There are two further incidents that form part of his criminal record. Both took place within the confines of immigration detention.
On 7 March 2018, the Applicant’s visa was cancelled because he had been charged with the offence of using a carriage service for the purpose of harassing or intimidating. He had been in immigration detention since 7 March 2018.
The third incident – 1 April 2018
The third incident, in April 2018, occurred not long after his arrival into immigration detention. The Applicant said that he expected to be in immigration detention only a few days, not three years. He vented his frustration on a computer monitor and a television set in a common room area. A file note states that he was restrained by ‘placing [him] on the ground’ and in the course of this he bit the arm of a SERCO officer.[23]
[23] Annexure B to the Respondent’s SFIC, 5.
He was charged with property damage and causing harm to a Commonwealth official. He was initially sentenced to 12 months imprisonment to be served by way of an Intensive Correction Order, but on appeal the District Court imposed a 12 month bond. There is no record of the Court’s remarks.[24]
[24] 5 December 2018: Cause harm to Commonwealth Public Official (Non law enforcement); Destroy, Damage Commonwealth Property: SM3, 189.
I note that this incident took place on 1 April 2018, three weeks after he was removed to detention. He told the Tribunal that he lost his temper in frustration. His mother had brought his iPod but, he says, he was not allowed to have it. He did not admit to biting the Serco officer.
He was charged with two Commonwealth offences: criminal damage, and causing harm to a public official. On 5 December 2018, he was convicted by the Local Court of NSW to 12 months imprisonment by way of an intensive corrections order. On appeal, the Parramatta District Court varied his sentence in favour of a good behaviour bond under section 20(1)(A) of the Crimes Act.[25] There are no sentencing comments before the Tribunal.
The fourth incident – 28 March 2019
[25] SM3 at 189.
The final incident in March 2019 was more serious. The Tribunal has been provided with extensive material relating to this incident including still photographs from the CCTV footage.[26]
[26] G2 at p 208; SM3 at 191.
The following account is taken from the Statement of Facts presented in the Local Court of NSW.[27]
[27] SM3 at 190.
The Applicant was detained in the VIDC, which is jointly managed by the Australian Border Force (‘ABF’) and SERCO Security Services (‘SERCO’). Dorm 3 was the residential area of the VIDC’s High Security Centre (‘HSC’).
Between 9.00 pm and midnight there was an outbreak of serious violence within Dorm 3, occupied by 26 male detainees.[28] It started with a verbal argument between detainees from Iraq and Iran. The Applicant was sitting with other detainees including one of his friends in the common area. The other group was congregated in the residential area.
[28] SM3 at 205, paragraphs 5, 59.
At around 9.00 pm, his friend was assaulted by a member of the other group who had punched him on the back of the head, with his fist, several times, using a metal door handle as an improvised knuckle duster.[29] His friend called out for help.
[29] SM3 at 193, paragraph 13.
The Applicant ran to the assistance of his friend to break up the fight, which was continuing. He asked those attacking him “Why are you hitting him?”. His friend returned to his residential unit with blood on his neck, t-shirt and on his arms. When questioned later by SERCO staff about the blood, he said that “nothing happened” and refused medical attention.
Later there was a further upsurge of violence, and additional SERCO officers attended the dormitory area.
At about 10.00 pm there was another scuffle involving serious violence between the active participants in the two groups. SERCO staff radioed a ‘Code Black’ disturbance, signifying a major disturbance in which large groups of detainees are no longer compliant, and requiring the attendance of all available staff. As some point, the Applicant ran through the staff containment line. He was intercepted and restrained. One of the staff received an injury.
Police were called to the HSC and a number of detainees were arrested, including the Applicant.[30]
[30] SM3 at 191.
Various improvised weapons were found, including a metal ashtray on a string, a sharpened pencil, a metal bar with a sharpened end, and a half-pair of scissors. Four of the detainees required treatment from the NSW Ambulance Service, two for cuts and puncture wounds.[31]
[31] SM3, at paragraphs 51, 58, 62.
Eight detainees were subsequently charged with various offences arising from this incident.
The Applicant was charged with affray (a state offence), and with obstructing a Commonwealth officer (a Commonwealth offence). For the affray, he was sentenced to a 24-month conditional release order. For the obstruction, he was sentenced to three months imprisonment.
The sentencing magistrate stated that the CCTV footage had been viewed six or seven times. His role was initially that of peace-maker but he then lost control. The magistrate did not think that a custodial sentence was warranted for the affray, on account of “his age, the early plea, the treatment that he requires, the nature of his hopelessness, the support that he would have in the community and the treatment plan that’s proposed...”[32]
[32] G2, at 46. The magistrate applied Crimes (Sentencing Procedure) Act 1999 (NSW), subsection 21A(3).
In respect of the obstruction, a Commonwealth offence, the magistrate did consider that a custodial sentence was warranted.[33] The Crown argued that the obstruction offence was a “serious example” of the offence of obstruction. The magistrate stated “I’m not sure that it is overly serious”,[34] and described the situation as follows:
‘[C]onfronted by what was perceived in front of him [and] egged on by others, he lost his control. He ran past Serco officers and they attempted to restrain him. In doing that, one of the officers received an injury to a part of his body that cause him quite significant pain, although the pain was temporary and passed over a short period of time…This was a detention centre. These officers – as the offenders says in his letter of apology which I accept – were simply doing their duty and should not have been the subject of assault. He had simply lost his temper and he’d lost his control. So far as the actual involvement in the melee or the affray was concerned, it is my view very much at the lower end of the scale’.[35]
[33] The magistrate referred to the sentencing principles in s 16A(1), (2) and ss 17 and 17A of the Crimes Act 1914 (Cth).
[34] G2 at 45, line 25.
[35] G2 at 47.
The magistrate also stated:
‘His record is not as bad as at first flush, it seems. He is in detention because of matters that he has committed in the past that were not the subject of full time custodial sentences but with subjective conditional release orders, but he was placed in custody. He has been in that Serco custody of the department’s custody for over 18 months. He has been in custody bail refused by me for three and a half months...’[36]
[36] G2, 47.
I note that this is the only relevant custodial sentence in the offence record, and it was accepted that his behaviour towards the officer in question was not deliberate. I also note in passing that the delegate misstated the sentencing outcomes and found that he was sentenced to three months imprisonment for the affray.[37]
[37] G2 at 17, para 7.
I note that the Applicant wrote a letter to the Local Court of NSW and apologised for his actions. He said:
I am writing to express my sincere remorse for my actions
I know fighting and violence is very bad. I also know that the SERCO officers were just at work to do their job. I am very sorry to them and to their families who must have been very worried on the day.
On the day of the fighting there was much tension between the detainees. I did not involve myself in all of it as I did not want anything to do with it. My friend XY was called into one of the rooms. I heard yelling and screaming coming from that room so I got up to see if he was okay. When I entered the room I saw him being beaten up by one of the guys inside and everyone was watching and laughing and letting it happen. I tried to break up the fight straight away and get my friend out of there. He was bleeding. The fighting went on later that day. I was not involved in that and stayed right away the rest of the night.
I know this is no excuse for my actions and cannot make this okay.
I accept that I must be punished for my behaviour and that this was very serious. I just want everyone to know that I am very sorry I have spoken to the person attacked we both apologise to each other.[38]
[38] G2 at 208.
There are some relatively minor incidents contained within the detention records maintained by SERCO. Annexure A to the Respondent’s SFIC records incidents on 21 August, 2 October, 26 October, 30 October, 22 November and 4 December 2020.
The Applicant’s solicitor objected to these incident reports, on similar grounds to the police notes. The Applicant commented that the environment in VIDC was especially bad and that they had nothing to do but drink coffee and smoke. He said that he was much happier at Yongah Hill. He was taking anger management classes and had a better understanding of the things that triggered him and how to break things down so that he would not react.
There is no record of any non-compliant behaviour since his transfer to Yongah Hill in Western Australia. He has not been charged with any offence since the March 2019 incident, dealt with in November 2019.[39]
[39] G2 at 212.
The Applicant’s solicitor tendered a copy of a recent Report of the Commonwealth Ombudsman, which he said, shows that despite the best efforts of SERCO staff to provide a safe and secure environment, it is a harsh environment for those detained with considerable uncertainty as to their future.[40] I note that some of the offences were committed in the now closed Blaxland High Security Compound, a Centre that was the subject of adverse criticism by the Commonwealth Ombudsman, who recommended that it be decommissioned.[41]
[40] See Commonwealth Ombudsman, Monitoring Immigration Detention, Review of the Ombudsman’s Activities in Overseeing Immigration Detention, July December 2019; G2, 644.
[41] See Commonwealth Ombudsman, Monitoring Immigration Detention, Review of the Ombudsman’s Activities in Overseeing Immigration Detention, July December 2019; G2, 644, at 682.
The Tribunal received psychological and psychiatrist assessments which suggested that the Applicant experiences Attention Deficit and Hyperactivity Disorder (ADHD), panic attacks and depression.[42] The psychologist who has been treating him was called to give evidence and was examined by the representatives for each party. He conceded that most of his recent interviews of the Applicant had been conducted by telephone and that he has not undertaken recent psychometric testing, but relied upon his experience as a practitioner to justify his diagnosis. The Tribunal was also provided with a psychiatric assessment which identified a low to moderate risk of recidivism in the absence of protective factors, such as the support of family.
[42] G2 at 268.
None of this material suggests a propensity to antisocial behaviour or violence and the Tribunal did not observe any sign of hyperactivity or an inability to concentrate during the two day hearing.
The material before the Tribunal shows a conspicuous lack of the indicators of criminality or delinquency, such as the use of drugs and alcohol, dysfunctional relationships, or involvement with criminal gangs. There is no evidence of substance abuse either before or during his immigration detention. There is no indication of bullying behaviour, or any violence towards women, and he is strongly supported by his mother and sister. His behaviour both before and during his detention does not suggest a tendency to repeat offending. The pre-detention incidents occurred in unusual circumstances that are unlikely to be repeated.
It is often said in these cases, as it was in this case, in response to rehabilitation programs taken in detention, that a person’s behaviour has not been tested in the wider community.
In my view, his behaviour in immigration detention, including his behaviour which led to criminal convictions, does not provide a realistic indicator of his tendency to engage in criminal conduct in the wider community. Moreover, the deterrent effect upon a person in his early twenties of such a long period of indefinite detention under conditions of strict detention, detained without any significant criminal record, cannot be underestimated. I note that eighteen months has passed since the magistrate noted that he required ongoing treatment in the community, and that he has been in the challenging circumstances of immigration detention for three years, without any definite release date.[43]
[43] G2 at 47.
Conclusion on whether the Applicant passes the character test
Under the circumstances, I consider that there an insignificant risk of the Applicant engaging in further criminal conduct. His overall criminal record does not support a finding that he would engage in criminal conduct if allowed to remain in Australia. I am therefore not satisfied that the Applicant fails the character test by reason of paragraph 501(6)(d)(i).
THE DISCRETION TO REFUSE A VISA UNDER SUBSECTION 501(1)
The parties made extensive submissions relating to the question of discretion, including the impact of the amendment to section 197C. I therefore propose to indicate why I also consider, in light of the Direction and the recent amendment, that the reviewable decision to refuse a visa should be set aside.
The discretionary question involves an expanded inquiry focusing on the considerations referred to in the Direction.
In this case the Minister’s delegate considered the discretionary question by reference to Direction No. 79. The delegate was not satisfied that the Applicant’s likelihood of reoffending was ‘negligible’ and found that there was an unacceptable risk of harm to the Australian community.[44]
[44] G2 at 23, paragraph 49.
EXERCISING THE DISCRETION TO REFUSE A VISA
In exercising the discretion under subsection 501(1), as mentioned above, the Tribunal is bound to comply with the Direction, which is designed to assist the Tribunal in weighing the various considerations that must be taken into account.
The Direction contains rules and principles relating to the weighting of the various considerations. I expressly note for example the principle that a non-citizen who has committed a serious crime, particularly against women, should generally expect to forfeit the privilege of staying in Australia.
The Direction identifies certain factors, so-called ‘primary’ and ‘other’ considerations. I note that primary considerations should generally be given greater weight than ‘other’ considerations. However, any one factor may be determinative in the particular circumstances of the case, regardless of its classification.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
The first primary consideration is the protection of the Australian community. I note paragraph 8.1, which provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 of the Direction outlines the various factors to which a decision-maker should have regard.
I note specifically paragraph 8.1.1(b) which refers to the types of crimes or conduct considered by the Australian Government and community to be serious, and that this includes crimes committed against government representatives or officials due to the position they hold or in the performance of their duties; and crimes committed in immigration detention. There is no doubt that the offences committed by the Applicant while in detention should be regarded as serious, and I note that, in relation to the most recent offence which involved causing harm to a Commonwealth official, he was sentenced to three months imprisonment.
I also note the frequency of the offending and whether there is a trend of increasing seriousness. I find that his offending overall is infrequent, having occurred in 2015, 2018 and 2019. I do not think that there is a sufficient record that one can say that there is an increasing trend.
I note that paragraph 8.1.2 which seeks to identify the risk to the Australian community should the non-citizen commit further offences. I note the Government’s view that the community’s tolerance for risk decreases in proportion to the seriousness of the potential harm.
I have previously identified the nature of harm to individuals and the Australian community should the Applicant engage in further criminal acts or serious conduct. As noted previously, I consider that the likelihood of further offending by the Applicant, if he is released into the community, to be vanishingly small, and certainly no higher than that which applies to law abiding members of the community.
For the reasons outlined in the first part of this decision relating to the character test, I am not satisfied that the Applicant’s presence in the wider community constitutes a risk to the Australian community.
Taking account of the principles contained in the Direction, and specifically those articulated in paragraph 8.1.1(b), I am satisfied that PC1 weighs against the Applicant, but only moderately so.
Family violence: PC2
This consideration does not apply.
Best interests of minor children in Australia affected by the decision: PC3
This consideration does not apply.
The expectations of the Australian community: PC4
Paragraph 8.4 of the Direction provides:
8.4 Expectations of the Australian Community
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
In relation to PC4 (the expectations of the Australian community) it is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against an applicant in any particular case varies according to the seriousness of their offending.[45]
[45] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Paragraph 8.4.1 provides that where a person has engaged in serious conduct the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. Paragraph 8.4.2(d) of the Direction requires these incidents to be treated as serious. I have described the circumstances of the Applicant’s offending relating to the 2015 assault against a police officer, and the two offences of obstruction committed against SERCO officers (in April 2018 and March 2019). I take account of the following:
·The assault was committed under circumstances where the Applicant had been seriously assaulted by a group of men;
·The obstruction offences do not appear to have been deliberate; and
·The 2019 offence was committed under difficult circumstances due to an outbreak of violence in VIDC where the Applicant was not a primary participant or instigator but attempted to mediate before finally losing self-control.
The Tribunal is required to assess the weight to be attached to each of the considerations and the ‘expectations of the Australian community’ is appropriately regarded as a primary consideration. Nevertheless, the views of the sentencing magistrate in describing the most serious offence (the obstruction for which he was sentenced to three months imprisonment) as not ‘overly serious’ should be weighed in assessing the expectations of the Australian community.
The Respondent contends, consistently with the Direction, that any offences committed in immigration detention should be regarded as serious. A description of the offending as serious does not determine the issue of weight. As noted by Buchanan J in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38:
[181] The Minister’s reasoning is set out in paragraphs 8, 28 and 29 of the Reasons. In essence, the reasoning is: criminal conduct of this type in immigration detention will not be tolerated; the conduct was serious, because committed in immigration detention; the conduct demonstrates a fundamental disrespect for Australian laws, standards and authorities; and, refusal of a visa is not incompatible with Australia’s obligations in this case.
[182] The first three premises in this line of reasoning are certainly contestable upon the ground that they are exaggerated and unbalanced, whatever the policy position to which they give expression.
[183] One measure of the seriousness of the applicant’s conduct is the penalty imposed under Australia’s own laws. The Minister’s remarks are out of all proportion to that penalty and the sentencing remarks which accompanied its imposition…
[202] Statements by a sentencing magistrate, for example, that conduct is “serious” may amount to no more than an indication that it is appropriate to record a conviction. In the present case, a better guide to the objective seriousness of the offence is that the applicant was released without imprisonment, and without fine.
I note that in relation to the most recent offence, which occurred in detention and involved causing harm to a Commonwealth official, the Applicant was sentenced to three months imprisonment. However, each of the other offences committed in immigration detention (including the affray) attracted no more than a good behaviour bond.
In the particular circumstances of this case, PC4 weighs moderately against the Applicant.
OTHER CONSIDERATIONS
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i) Strength, nature and duration of ties: OC4.1
(ii) Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
Paragraph 9.1 of the Direction provides:
9.1 International non-refoulement obligations
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) 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. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a 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 applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
(4) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5) International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6) It may not be possible 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 nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7) Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non-refoulement obligations.
Subsection 197C(3) provides that section 198 does not ‘require or authorise’ the removal of a protected person unless the conditions in (i) – (iii) apply.[46] Section 197C provides:
[46] Migration Amendment (Clarifying International Obligations for Removal) Act 2021(Cth). Section 197C was amended on 24 May 2021, three days after this matter was heard.
197C Australia’s non‑refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
Subsections (4) – (8) are omitted.
The Explanatory Memorandum explains the impact of new subsection 197C(3) as follows:
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:
· modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless:
· the decision finding that the non-citizen engages protection obligations has been set aside;
· the Minister is satisfied that the non-citizen no longer engages protection obligations; or
· the non-citizen requests voluntary removal; and
· ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.
The introduction of new subsection 197C(3) creates tension with some of the paragraphs of the Direction. Paragraph 9.1(2) is no longer correct in relation to a protected person. Section 198 neither requires nor authorises an officer to remove an unlawful protected non‑citizen unless certain conditions are satisfied. Other aspects of the Direction, as discussed below, may also require adjustment in light of the statutory amendment.
The Explanatory Memorandum notes further:
The need to modify section 197C follows the impact of two Federal Court judgments which have altered the intended effect of this provision on persons who have been found to engage protection obligations:
·In DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 (DMH16) the Federal Court found that, where it is reasonably practicable to remove a UNC, section 197C obliges the Department to remove the UNC, even where the person had been found to engage Australia’s non-refoulement obligations. This was not the intended purpose of section 197C.
·In AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20), the Federal Court ordered the release from immigration detention of an individual (who was also the applicant in DMH16) who it found had no ongoing matters before the Department, Minister or the Courts and had not been removed from Australia as soon as reasonably practicable (in circumstances where removal may have been inconsistent with non-refoulement obligations).
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The cases referred to involve the same individual; that is, DMH16 and AJL20 are the same person: see AJL20 v Commonwealth [2020] FCA 1305, at [97].
On 11 September 2020, the Federal Court (Bromberg J) made orders for AJL20’s immediate release on the basis that he had been unlawfully detained since 26 July 2019. I note that he was originally detained on 2 October 2014, so at the time of his release he had been in detention for just under six years.[47] Bromberg J stated:
I have held that since 26 July 2019, the removal of the applicant from Australia has not been undertaken or carried into effect as soon as reasonably practicable and that that was so principally because no steps at all have been taken to remove the applicant to Syria, the country of his nationality. Whilst that failure was based on a recognition of Australia’s obligation not to refoul the applicant to Syria, the terms of s 197C of the Act required that Australia’s non-refoulement obligations in respect of the applicant be treated as irrelevant for the purpose of his removal from Australia as soon as reasonably practicable in accordance with s 198 of the Act. I have concluded that the applicant has, since 26 July 2019, been unlawfully detained by the Commonwealth and that an order directed to the Commonwealth should be made commanding it to release the applicant from detention forthwith.
[47] DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, at para 4.
The matter was removed to the High Court and argued on 13 April 2021.[48] At the time the applicant was in the community as a result of his release by the Federal Court order.[49] I note that two judges of the Federal Court have rejected a submission by the Commonwealth that AJL20 is ‘plainly wrong’.[50]
Is indefinite detention a relevant consideration?
[48] See Commonwealth of Australia v AJL20 [2021] HCATrans 68 (13 April 2021); see ‘Case C16/2020—Commonwealth of Australia v. AJL20’, High Court of Australia website.
[49] This is a rapidly moving field: see also BHL19 v Commonwealth of Australia [2021] FCA 462 (29 April 2021); AOU21 v Minister for Home Affairs [2021] FCAFC 60 (27 April 2021); MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 (30 April 2021).
[50] See BHL19 v Commonwealth of Australia [2021] FCA 462 per Wigney J; Tran v Commonwealth of Australia [2021] FCA 580, per Jagot J.
I turn then to the question whether the Applicant’s possible exposure to ongoing immigration detention that is indeterminate in nature is a relevant consideration in applying paragraph 9.1 of the Direction. I note that, unlike Direction No. 79, there is no reference to indefinite detention in the Direction.[51]
[51] Paragraph 14.1(6) of the previous direction (Direction No. 79) referred explicitly to the possibility of indefinite detention.
I note the submission made by the Respondent’s representative that:
… the Tribunal is also required to consider the legal consequences of its decision, including those arising from the operation of sections 197C and 198 of [the Migration Act] and from Australia's non-refoulement obligations, and the possibility of 'indefinite detention', being detention for a period with no chronologically fixed endpoint: WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [136] and [153].
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, Kenny and Mortimer JJ at paragraphs [128] to [136] and at [153] made comments that are relevant to the matter at hand, with the caveat that their comments are directed to Direction No. 79 rather than the Direction. Although their comments must now be read subject to the statutory changes to section 197C, I note the passage in [136]:
Decision makers in the position of the Tribunal are not entitled to ignore the continued deprivation of liberty of a person in the position of the appellant, while the executive pursues its policies to avoid refoulement. Further (and separately), if these matters are put to the decision maker as a representation, the decision maker is obliged to consider them because of the terms of s 501CA(3): Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 at [38]- [41], followed in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 at [30].
I take these comments to be equally applicable to cases involving the refusal to grant a visa in the exercise of discretion under subsection 501(1).
I note that Abraham J refrained from commenting on the indeterminate detention issue, noting that it had not been addressed by the parties.
I proceed on the footing that the possibility of indefinite detention is a relevant consideration in exercising the discretion under subsection 501(1).
Is the Applicant likely to experience such detention?
The position of the Applicant is administratively complex. If he is refused a protection visa he is prevented by section 48A from making a further application for a protection visa while in the migration zone (unless the Minister determines under section 48B that s 48A does not apply to him).
Section 501E provides that a person who has been refused a visa is not allowed to make a further application for a visa, including a Bridging R (Class WR) visa, while he is in the migration zone, unless the Minister has invited him to do so.[52]
[52] Migration Regulations 2.20A, 2.12AA.
I note that the Minister has various powers that may be used to avoid the Applicant’s indefinite detention.
For example, the Minister may grant a visa to a non-citizen in detention under section 189 if he thinks that it is in the public interest to do so: section 195A. The power is a personal and non-compellable power and not reviewable in any court by virtue of section 474. Moreover, by reason of subsection 195A(4) the Minister does not have a duty to consider whether to exercise this power, regardless of whether he or she is requested to do so by any person, or in any other circumstances.
The Minister may also determine that that person is to reside at a specified place rather than being held in detention centre: section 197AB.
There is no evidence before the Tribunal as to the likelihood that any of the Minister’s non-delegable personal powers may be exercised in favour of the Applicant. There is no material before the Tribunal that would allow a reasonable assessment to be made as to how long he is to endure detention should he not be granted a protection visa. The avoidance of a future state of unlawful detention is a relevant consideration in deciding whether to grant a visa.
Unfortunately, the absence of executive action by the responsible Minister does not create an obvious marker to identify when lawful administrative detention becomes unlawful and tortious. Ministerial inactivity cannot be measured in quarter-tones: see Tran v Commonwealth of Australia [2021] FCA 580 (1 June 2021).
The legal consequence of a refusal to grant a protection visa is that the Applicant will be detained essentially at the Minister’s pleasure (understood to mean, until such time as the Minister exercises one of the personal, non-compellable and non-reviewable powers open to him).
A protected non-citizen cannot be lawfully removed unless he or she requests removal. If no such request is made, then unless his protected status is changed or withdrawn, the legal consequence is ongoing detention. Whether this is properly described as ‘indefinite’ or ‘indeterminate’ detention is perhaps unimportant.
The practical consequence for a non-citizen to whom protection obligations are owed is that he or she must choose between ongoing immigration detention and asking for ‘voluntary’ return.
The Applicant has not requested voluntary return to Iran. In submissions filed on 26 May, the Respondent confirmed that the Applicant is a person to whom protection obligations are owed ‘and accordingly is owed non-refoulement obligations in respect of Iran’.[53] None of the conditions enumerated in subsection 197C(3) apply to the Applicant.
[53] The Respondent’s Supplementary Submissions filed on 26 May 2021.
In Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb), the case concerned a stateless Palestinian born in Kuwait. The difficulties of removal were practical. Mr Al-Kateb was stateless and no country was required to take him. His statelessness meant that his removal was not a practicable possibility. The High Court decided in a split 4-3 decision, that a non-citizen in the migration zone without a visa is an unlawful non-citizen and must be detained for the purpose of removal. Even if removal is not practicably possible, there is no constitutional impediment to indefinite detention.
In AJL20, the problem was different. The impediment to removal was not statelessness, but the applicant’s status as a person to whom protection obligations were owed. It was common ground that the Minister had failed to consider the various options available to regularise his status outside the detention centre. The detention was therefore unlawful and the Minister was liable for false imprisonment.
In the present case, the impediment arises by reason of subsection 197C(3). Unless his protected status is lost, he cannot be lawfully removed unless he requests voluntary removal.
Without a protection visa, the Applicant is facing the prospect of many years of immigration detention. The Minister may well promptly consider his case in terms of the various options for regularising his residence outside the detention centre. But if no action is taken as the years go by, the remedies for inactivity by the Minister are uncertain. He has already been in immigration detention for more than three years.[54]
[54] DMH16 v Minister for Immigration and Border Protection [2017] FCA 448, at paragraph 4.
The possibility that the Applicant may experience a lengthy period of ongoing detention is a relevant consideration that weighs very heavily against the refusal of a protection visa.
I find that the Applicant may be subject to ongoing detention, such that the period of detention will be indeterminate, in having no chronologically fixed end point. The possibility of experiencing indefinite detention is not justified in the circumstances of this case.
I find that this consideration weighs very heavily in favour of the Applicant.
Extent of impediments if removed: OC2
Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen 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 impact of new subsection 197C(3) on this aspect of the Direction is problematic.
As a protected person, the Applicant cannot be removed to Iran unless he requests removal. It is impractical to assess impediments on the assumption that he is not a protected person.
It is accepted that the Applicant is a protected person. If his application for a protection visa is refused he will be detained in Australia until he requests to be returned, or his protected status is cancelled. He cannot be lawfully returned to Iran unless the conditions specified in new subsection 197C(3) are satisfied.
His mother believes that the car crash in which several members of his family were killed was engineered by elements of the Iranian Revolutionary Guard, and that it was a political assassination. He and his mother survived the crash because they were travelling in a separate car, but they witnessed the accident.
His mother says that he was badly injured in the crash and suffered a blow to the head. I note the medical evidence before the Tribunal, and the sentencing magistrate’s comment that the Applicant requires appropriate treatment in the community, primarily for his mental health.
The evidence presented to the Tribunal tends to suggest that mental health services in Iran are limited and those who suffer are subject to a stigma perhaps great than that which applies in Australia.
The Tribunal has not been provided with any evidence that the Applicant has any friends of family in Iran to turn to, and given his kinship ties, it is impossible to rule out the possibility that he might be targeted by the Iranian government.
I find that the impediments that he may face, in the unlikely and hypothetical circumstances of his removal to Iran, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), are very great indeed.
I therefore find that this consideration weighs heavily in favour of the grant of a temporary protection visa.
Extent on victims: OC3
No evidence has been led as to the impact on any victim.
Strength, nature and duration of ties: OC4.1
Paragraph 9.4.1 of the Direction states:
9.4.1. The strength, nature and duration of ties to Australia
(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.
I note the following submission by the Respondent:
The Respondent acknowledges that the Applicant's mother and sister reside in Australia. The Applicant's mother and sister currently hold Bridging visas (Class E, subclass 50), which is a temporary stay visa. As the Applicant's mother and sister are not citizens, permanent residents, or people who have a right to remain in Australia indefinitely, the Respondent submits that the Tribunal should not have regard to the impact of the decision on the Applicant's mother and sister.
The Applicant’s mother and sister gave evidence to the Tribunal without objection from the Respondent’s solicitor. She contends however that the Tribunal ‘should not have regard’ to the potential impact of his deportation on them. I do not read paragraph 9.4.1(1) in this manner. A requirement that the Tribunal must consider a certain factor if certain conditions apply logically entails that if those conditions do not apply, the Tribunal is not required to consider that factor. But the factor may be a relevant consideration even if it is not a mandatory consideration.
It is true that at present his mother and sister do not have a right to remain in Australia indefinitely, and therefore the Tribunal is not required to consider the impact of his removal on them. However, the Direction does not prohibit the Tribunal from doing so, and in the present circumstances the Tribunal should do so.
Having listened to their evidence, I simply observe that his lengthy detention and potentially ongoing detention is a matter of psychological torment for both mother and sister. I have no doubt that the impact upon them of his removal will be emotionally crippling and, in the case of his mother, potentially dangerous. I note a psychological report relating to his mother which states:
It is my considered opinion that her if her brother does not receive a visa and/or is released from detention – she will continue to be at high risk of ongoing depression and anxiety and possibly a suicide risk. She has indicated she blames herself for his detention and will find it hard to cope with her feeling and her mother and brothers distress if he does not get a Visa. [55]
[55] G2 at 430.
As Allsop CJ said in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, at [44]:
All the material, if considered, would lead any reasonable person to a conclusion that this decision, unrevoked, will cause lifelong grief and psychological hardship to a number of people…
I therefore take into account the impact upon of his potential removal or indefinite detention upon his mother and sister.
I also note various testimonials that have been provided on behalf of the Applicant;[56] and that he has aspirations to study political science in Australia to improve his educational qualifications.[57]
[56] G2 at 436, 437, 438.
[57] G2 at 416, 427.
I find that that overall OC3 weighs very heavily in favour of the Applicant.
Impact on Australian business interests: OC4.2
This consideration is not relevant to the present proceedings.
FINAL OBSERVATIONS ON THE IMPACT OF THE AMENDMENT ON THE DIRECTION
The introduction of the amendment to section 197C of the Migration Act will require a considerable adjustment to the Direction. For example, paragraph 9.1(2) provides:
(2) 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. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
This aspect of the Direction is no longer legally accurate. By reason of subsection 197C(3), in the absence of a request for voluntary removal, section 198 does not require or authorise an officer to remove an unlawful protected non‑citizen from Australia.
Direction 9.1(3) also requires adjustment. While the first sentence remains an accurate statement of the law, the second sentence does not accommodate the legislative change. In the vast majority of cases the removal of a protected non-citizen will not be authorised, by reason of new subsection 197C(3).
I also note paragraph 9.2 of the Direction relating to impediments. In the case of protected persons who do not seek voluntary return, it is not clear whether the Tribunal is required to consider impediments on a factually incorrect footing; that is, on the footing that the protected non-citizen is in fact not protected, for otherwise the person would not be subject to return, by reason of subsection 197C(3). Assessing impediments for a person not in need of protection would be a different exercise from assessing the impediments likely to be experienced by a person in need of protection.
It is not immediately clear to the Tribunal how these specific paragraphs should be applied in subsection 197C(3) cases, and it is respectfully recommended that these issues be considered by the Departmental officers responsible for advising the Minister.
CONCLUSION
My conclusion in weighing the primary and other considerations is that two of the primary considerations (PC1 and PC4) weigh moderately against the exercise of discretion in favour of granting a visa to the Applicant. As against this, three of the other considerations (OC1, OC2 and OC4.1) weigh heavily in favour of exercising the discretion.
I have decided to set aside the decision by the Minister’s delegate to refuse to grant a protection visa to the Applicant, with a finding that the Tribunal is not satisfied that he fails the character test in paragraph 501(6)(d)(i); and that in any event, the circumstances of his offending do not require that his visa application should be refused, taking into account the primary and other considerations in the Direction.
DECISION
The decision under review is set aside and remitted to the Respondent with a direction that the Applicant is not a person to whom paragraph 501(1)(d)(i) of the Migration Act applies.
I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
........[sgd]........
Associate
Dated: 2 June 2021
Dates of hearing: 20-21 May 2021 Solicitors for the Applicant: Ray Turner and Sai Sivalohan,
Turner Coulson Immigration LawyersSolicitors for the Respondent: Isla Tobin,
Clayton Utz
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