BNNN and Minister for Home Affairs (Migration)
[2019] AATA 27
•14 January 2019
BNNN and Minister for Home Affairs (Migration) [2019] AATA 27 (14 January 2019)
Division:GENERAL DIVISION
File Number: 2018/6098
Re:BNNN
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:14 January 2019
Place:Brisbane
The decision under review is affirmed.
............................[sgd]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Refugee visa – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)CASES
Afu v Minister for Home Affairs
[2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection[2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, (2017) 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection[2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs[2018] FCA 919
Marzano v Minister for Immigration & Border Protection[2017] FCAFC 66, (2017) 250 FCR 548
Minister for Immigration and Border Protection v BHA17[2018] FCAFC 68
Minister for Home Affairs v Buadromo[2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs[2003] AATA 1336
YNQY v Minister for Immigration and Border Protection[2017] FCA 1466
REASONS FOR DECISION
Senior Member Theodore Tavoularis
14 January 2019
INTRODUCTION AND BACKGROUND
BNNN (‘the Applicant’) has resided in Australia on a refugee (subclass 200) visa since December 2011.[1] He is a national of Myanmar.[2] Between 2014 and 2017, the Applicant came before the courts on a number of occasions, largely for offences he committed whilst under the influence of alcohol.
[1] Exhibit R3, G-Documents, G 14, p 109.
[2] Ibid.
Significant among these offences is a charge of indecent assault committed against a 14 year old girl, for which the Applicant was duly convicted and sentenced in April 2015. The police incident report says that the Applicant had kissed the girl three times without permission after encountering her on a tram.[3] For this offence, the Applicant was sentenced to 4 months’ imprisonment, wholly suspended upon him entering a $200 good behaviour bond for a period of 18 months.[4]
[3] Ibid, G 13, p 106.
[4] Ibid, G 10, p 93.
The Applicant breached this bond by committing further, minor offences. However, the sentencing magistrate took into account special circumstances to reduce the terms of imprisonment the Applicant was to serve to two months and three days. For his other offending, the Applicant was sentenced, cumulatively, to an additional period of two months and 12 days.[5] However, this additional period was suspended for 18 months upon the Applicant entering into a good behaviour bond of $300.[6] The Applicant again breached his bond and served the additional two months and 12 days’ imprisonment.[7]
[5] Ibid, G 11, p 100.
[6] Ibid.
[7] Ibid, G 9, p 89.
While serving this term of imprisonment, a delegate of the Minister gave the Applicant notice that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[8] His visa was cancelled on the grounds that the Applicant did not pass the character test as set out in s 501(6)(e) of the Act as he had been convicted of a sexually-based offence involving a child and was serving a sentence of imprisonment on a full-time basis in a custodial institution.[9]
[8] Ibid, G 3.
[9] Ibid.
The Applicant requested that this cancellation be revoked.[10] However, a delegate of the Minister decided in October 2018 not to revoke the cancellation of the Applicant’s visa under s 501CA(4) of the Act.[11] The Applicant now seeks for the Tribunal to review this decision.[12]
[10] Ibid, G 15.
[11] Ibid, G 8.
[12] Ibid, G 2.
Under s 500(1)(b) of the Act, the Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word “may” in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[15] I will address each of these grounds in turn.
[15] Ibid.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(e)(i) of the Act, a person will not pass the character test if, inter alia, an Australian Court has ‘convicted the person of one or more sexually based offences involving a child’.
As noted above, the Applicant was convicted of ‘indecent assault’ – which is definitionally a sexually based offence – by the South Australian Magistrates Court in April 2015.[16] This offence was committed against a 14 year-old girl.[17]
[16] Exhibit R3, G-Documents, G 10, p 93.
[17] Ibid, G 13, p 106.
For present purposes, the character test is defined in s 501(6) of the Act. Specifically, s 501(6)(e) of the Act provides as follows:
For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction…
Ministerial Direction Number 65 (‘the Direction’) affords assistance to a decision maker when considering an Applicant’s capacity to pass the character test in circumstances involving an application of s 501(6)(e) of the Act. The Direction provides that:
Sexually based offences involving a child include, but are not limited to offences such as:
(a) Child sexual abuse;
(b) Indecent dealings with a child;
(c) Possession or distribution of child pornography;
(d) Internet grooming; and
(e) Other non-contract carriage service offences.
(3) This provision applies irrespective of the level of penalty or orders made in relation to the offence.
Offending History
The totality of the Applicant’s criminal history appears in the material.[18] As best as I read and comprehended the material, I was not able to locate any traffic history referrable to the Applicant. The criminal history may be summarised thus:
[18] See Exhibit R3, s 501 – G Documents, National Police Certificate, G9, page 89-90.
Date
Offence
Penalty
February 2014
Disorderly behaviour
Convicted and discharged without penalty
April 2014
Disorderly behaviour (five counts)
Convicted and discharged without penalty
April 2014
Consume liquor in a public place
Disorderly behaviour
Convicted and fined $170
June 2014
Disorderly behaviour (two counts) (urinate in public place)
Convicted with a good behaviour bond in the sum of $200 for an operative period of 12 months
October 2014
Fail to comply with Bail Granted agreement (two counts)
Convicted and discharged without penalty
April 2015
Indecently assault a person – basic offence
Disorderly behaviour and failure to comply with Bail Granted agreement (two counts)
Convicted, four months imprisonment, sentence suspended for an operative period of 18 months with the imposition of a $200 bond for the same operative period
Convicted, seven days imprisonment, sentence suspended for an operative period of 12 months with the imposition of a $200 bond for the same operative period
November 2015
Use carriage service in harassing or offensive way;
Fail to leave licensed premises – intoxicated person
Breach of bond imposed in April 2015
Convicted and fined $50
Found proved on original offence – two months imprisonment
Further bond/obligation in the sum of $300 imposed for an operative period of 18 months.
November 2015
Further breach of bond imposed in April 2015
Found proved on original offence – three days imprisonment – with a further bond/obligation in the sum of $300 imposed for an operative period of 18 months.
March 2017
Disorderly behaviour
Fail to comply with Bail Granted agreement
Refuse to provide name and address
Fail to comply with reporting obligations
Assault police officer
Disorderly behaviour
Convicted and discharged without penalty
Convicted and discharged without penalty
Convicted and sentenced to one month and 12 days imprisonment.
May 2017
Fail to comply with Bail Granted agreement
Convicted and discharged without penalty
At the hearing, the Respondent’s representative read the totality of the Applicant’s offending history to him. The Applicant agreed that each of the offences, as read by the Respondent’s representative, were accurate. Uniquely, for present purposes, the Applicant’s difficulties with passing the character test derive not from the totality of custodial terms imposed on him, but specifically from the nature of his offending. That is, the fact his offending involved a 14 year old girl and was of a sexual nature.
In April 2015, the Applicant was convicted with an offence comprising “indecently assault a person – basic offence”. The offence was committed against a 14 year old girl and the acknowledged factual circumstances of the offending involved the Applicant approaching the girl and kissing her three times without her permission. There are additional factual circumstances around that offending, which I will discuss later in these reasons.
For the purposes of the character test, regard must be had to paragraph 7(1) of Annexure A to the Direction. It relevantly provides that a person will not pass the character test if he has been convicted of one or more sexually based offences involving a child. Further reference and assistance can be found in paragraph 7(2) of Annexure A to the Direction, which defines but does not limit sexually based offences to “indecent dealings with a child.” Further, paragraph 7(3) of the Annexure A tells a decision maker that s 501(6)(e) of the Act applies “irrespective of the level of penalty or orders made in relation to the offence.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the cancelation of his visa to be revoked.
ISSUE 2: IS THERE ANOTHER REASON WHY THE CANCELATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[19]
[19] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[20]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[21]
[20] [2018] FCA 594.
[21] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct to date
The Respondent contended that the Applicant’s offending conduct is of a very serious nature.[22] I think this is a worthy contention and one that should be accepted. The Applicant’s history of offending, while not as lengthy as other criminal histories that arise in matters such as this, is nevertheless one of consistency, demonstrating a failure to deal with the root cause or causes motivating the behaviour requiring regulation by lawful authority. As will be discussed later in these reasons, the primary or root cause of the Applicant’s offending is not only one that causes him to not just offend, but also one that causes him to not comprehend or respect the personal rights of others and the lawful authority of law enforcement officers in protecting the community from the type of conduct exhibited by the Applicant to date.
[22] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 24 on page 7 and paragraph 31 on page 9.
The consistent and persistent nature of the Applicant’s offending has seen him dealt with by lawful authority on at least nine occasions during his time in this country. He arrived here at the end of 2011 and was part of the Australian community for something like 6 or 7 years until his incarceration. As mentioned, the ratio between the time he has spent here and the number of sentencing events is of real concern. That concern is augmented by the reality that a number of those sentencing events have involved numerous counts of each offence.
While perhaps it cannot be convincingly said that his offending is escalating in seriousness, but nor is it diminishing in seriousness. The Applicant does not seem to understand lawful boundaries defined by legislation for the protection of the community. It seems clear from the evidence that his unresolved issues with alcohol render invisible to him both the personal rights of other people and the critical importance of law enforcement officers meeting their obligations to protect the community.
The Applicant has not sought to deny his history of offending. Similarly, while he gave evidence of a previous attempt at rehabilitation, he conceded that his primary responsibility – were he to be released back into the community – would be the resolution of his issues with alcohol. For reasons that follow, I think it is reasonable to assume that the Applicant’s issues with alcohol remain unresolved. Without documentary evidence of rehabilitation, it is very difficult to justify any decision revoking the mandatory cancelation of the Applicant’s visa.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled) or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of violence are to be viewed very seriously. For reasons that follow, I have little or no difficulty in regarding the Applicant’s conduct towards law enforcement officers and others to contain undeniable elements of violence for the purposes of this sub-paragraph of the Direction.
In March 2017, the Applicant was convicted and sentenced in relation to an offence involving the assault of a police officer. The sentencing Magistrate noted:
From 12 January of this year, disorderly behaviour, assaulting a police officer and refusing to provide your personal particulars, again you were intoxicated. Police were called to an incident where you were behaving poorly, swearing and threatening when they arrived. You were arrested and when in the police vehicle you were kicking out and kicked one of the police officers which constitutes the assault and you failed to provide your personal particulars.[23]
[23] Exhibit R3, s501 – G Documents, PG12, page 103, paragraph 5.
In November 2015, the Applicant was sentenced for his involvement in a violent incident resulting in a conviction for aggravated assault. As noted by the sentencing Magistrate:
…You had travelled on a bus from Kilburn to Blair Athol. At the final bus stop at the end of the route you were told by the bus driver that you needed to get off the bus as it was the end of the line. You refused to do so. You demanded that the driver take you where you wanted to go. You yelled and abused the bus driver. You made some martial arts moves and a kicking motion. You approached the driver and punched with a clenched fist in his direction, stopping about 25 cm from his face. You then poked the driver on the left cheek. You were again told to get off the bus. That is the circumstances of the Aggravated Assault.
You dialled 000 again in breach of a bail condition that you not contact 000 except for a life-threatening emergency. Police arrived and told you to get off the bus. Your behaviour continued while getting off the bus and during your arrest, resulting in the Hinder Police offence. Again, you were intoxicated at the time of the offences, having drunk about 4 litres of wine.[24]
[24] Ibid, PG11, page 96, paragraphs 8 and 9.
In addition to the imposition of his physical authority upon others, the Applicant has also been convicted of at least ten counts of disorderly behaviour on five separate occasions between 2014 to 2017.[25] There are three notable examples of this behaviour which may perhaps not be viewed as violent in the usual sense, but is undeniably menacing behaviour that would alarm any reasonably minded and law-abiding member of our community.
[25] See Exhibit R2, SA Police: Apprehension Report, pages 2, 6, 10, 14, 22, 26, 30, 43 and 61.
In March 2014, the Applicant took it upon himself to commence verbally abusing members of the public while, at the same time, attempting to climb on their vehicles. The offence details comprise:
…Police… attended King William Road ADELAIDE to reports of a male verbally abusing members of the public and attempting to climb on their vehicles.
On arrival Police could see the accused, who matched the description provided, shouting at a group of people.
The accused was shouting and swearing at the group of people as they attempted to calm him down and he appeared under the influence of alcohol, slurring his speech and unsteady on his feet.
Police attempted to speak with the accused, where he continued to shout and swear, repeatedly saying ‘Fuck you’ and ‘fuck off’. The accused then also became aggressive, raising his hands in fists, shouting ‘I can fucking fight you’.
There were numerous members of the public in the vicinity and walking past who appeared distressed and upset by what the accused was saying, including young children in vehicles who were stopped at nearby traffic lights.
The accused was informed he was under arrest and conveyed to the City Watch house where he was given his arrest rights, charged and left in the care of City Watch House staff.
…
The accused was not interviewed due to his aggressive and abusive behaviour.[26]
[26] Ibid, page 22.
Later in March 2014, while being questioned by police about his being in possession of a 5 litre cask of what wine, the Applicant took it upon himself to yell abuse and obscenities to both the public and the police. The offence details comprise:
As Police were speaking with the accused about possess liquor contrary to prohibition the accused was yelling abuse at members of the public who were walking past. Police warned the accused that if he did not stop he would be arrested for disorderly behaviour. Police left the area. As police were approximately 50 metres away from the scene the accused could be heard yelling “FUCK YOU POLICE” this was heard clear over all other noise including passing cars and busses. The accused was waving his arms around aggressively at police. This was drawing the attention of passing members of the public. Police approached and arrested the accused.
The accused was handcuffed to the rear, searched and his rights were given. The accused was conveyed to the City Watch House in the rear of a cage vehicle. The accused was charged and left in the care of the City Watch House staff. The accused was grossly intoxicated at the time of his arrest…
…Due to his constant abuse and his level of intoxication, he was not asked any questions in relation to these matters.[27]
[27] Ibid, page 26.
In August 2014, the Applicant again exhibited similar conduct in a public place. Particulars of that offence comprise the following:
…he [the relevant police officer] was on uniform patrol when he saw the accused…standing on the foot path in front of the Crazy House Gentleman’s Club. The accused was yelling aggressively and pointing at patrons as they entered licensed premises in this area, including the Crazy Horse and Madame Josephine’s.
The accused was yelling words such as ‘FUCK’ and ‘SLUT’. Two females who were entering Madame Josephine’s appeared frightened and moved very quickly inside the premises and closed the door. About 50 people in the area had their attention drawn to the accused by his behaviour. The accused was arrested.[28]
[28] Ibid, page 43.
Having regard to sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the totality of the Applicant’s offending against other persons must be viewed very seriously. He seems to have no boundaries when he becomes fortified by alcohol. He does not comprehend or respect the rights of others to share a given public space with him, nor does he respect the role and responsibility of law enforcement officers. His unresolved issues with alcohol mean that both the actual and potential harmful effects of his offending likewise remain unresolved.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction relates to the principle that crimes committed against vulnerable members of the community, such as minors, are to be viewed as serious. The sentencing Magistrate left no doubt about the serious and very concerning aspects of the Applicant’s conduct in relation to the offence of indecent assault against the 14 year old girl:
…The most serious matter I have before me is the indecent assault matter ... His guilty plea has been accepted on full facts, although I accept he had a different perception at the time because of his intoxication. That was appalling and serious offending. He took advantage of a vulnerable young woman. His inappropriate behaviour was persistent. The overall circumstances of the matter are very worrying. It represents a change in nature and an escalation of his previous offending behaviour and that worries me. His intoxication is no excuse at all.
I note the impact of his offending and his behaviour, on the victim and also on the victim’s family. I declared earlier that I am the parent of an autistic daughter. It simply gives me perhaps an extra appreciation for issues associated with people, including children, who have Autism Spectrum Disorder. I simply want him to be aware that I take into account the particular impact it had on this victim, given her issues and therefore the increased impact it had on her parents.
The community needs to be protected from such appalling, inappropriate behaviour.
I am of the view that his behaviour is so serious and so worrying that the only appropriate penalty is a term of imprisonment, but I will tell him now that I am not going to make him serve that term of imprisonment.
I will put him on a good behaviour bond, but if he does not comply with each and every condition of that bond, he will go to gaol, because I know that less than a month before he committed the indecent assault, he told a magistrate that he would behave himself for 12 months, and he not only committed the indecent assault, but then a disorderly behaviour and a breach of bail. In many respects this will be his last chance.[29]
[my underlining]
[29] Exhibit R3, page 92, paragraph 3-7 (inclusive).
In making the abovementioned sentencing remarks, the learned Magistrate had regard to the factual circumstances of this particular offence. To my mind, the facts are more revealing about the nature of the offence and what the Applicant is truly capable of doing when he is adversely affected by alcohol. The police narrative reads as follows:
Suspect has engaged in uncomfortable conversation with the victim, 14 yo female, saying he loves her/wants to marry her. Suspect is stranger to victim. Suspect has grabbed victim’s hands and rubbed them and has positioned his face near victim’s face making her feel uncomfortable. Victim has alighted from tram due to feeling uncomfortable but was followed by suspect. Suspect has pulled victim by her arms onto a bench at the stop. Suspect has continued telling victim he loves her, wants to marry her. Has asked the victim to come home with him, said he can provide her with drugs. Suspect has kissed victim on lips 3 times with nil permission, victim has attempted to pull away but suspect held her tightly by arms and hands. Suspect has pulled her onto another tram and cornered her near rear of this tram. Victim has continued to protest and eventually the two of them were separated by members of the public on the tram. Police have attended the scene and suspect was subsequently arrested.[30]
[my underlining]
[30] Ibid, page 106.
At the hearing, the Applicant sought to ameliorate or explain away this appalling conduct by venturing to suggest that the victim somehow played an inducing role and that she led him into the expectation of some physical or romantic encounter. The Applicant’s demeanour in giving this absurd and offensive evidence was equally appalling, smirking as he was and giving this evidence under the guise of a barely concealed giggle. I reject this evidence outright.
I further note both my surprise and, indeed, astonishment that given the circumstances of the physical measures adopted by the Applicant to assert actual control over the victim did not result in a more significant and severe charge for this offence against the person of an 14 year old girl who provided nothing in the way of consent for what the Applicant did. Having regard to the provisions of this sub-paragraph (b) of paragraph 13.1.1(1) of the Direction, I regard the Applicant’s conduct towards this victim as both appalling and very serious in equal measure.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with the sentence(s) imposed by the court(s) for a crime(s) committed by the Applicant. The removal of a person from mainstream society is viewed by the courts as a measure of last resort in any reasonably applied sentencing process. What is not immediately apparent from the Applicant’s criminal history is the imposition of progressively more severe sentences across that history.
I do not think that the relative absence of progressively more severe sentences across his criminal history is in some way not suggestive of the inherent seriousness of what the Applicant has done. To my mind, this Applicant, in terms of the sentences imposed upon him, has enjoyed the combined effects of (a) the leniency, fairness and reasonableness of judicial officers who are sentencing him, prepared to give him one further chance and (b) the fortunate reality (for him) that his dreadful conduct perpetrated upon the 14 year old girl was not actioned by significantly more serious criminal charges.
As mentioned earlier, his offending remains consistent and, put at its highest, the sentences imposed upon him similarly remain consistent in terms of their nature and type. I have already said his issues with alcohol remain unresolved. While that remains the case, any further offending by this Applicant can reasonably be expected to be met with sentences of the same type and nature and, indeed, even more severe than what has already been imposed on him.
With regard to sub-paragraph (c) of paragraph 13.1.1(1) of the Direction, I am of the view that while the sentences imposed on him may not be demonstrably escalating in severity, it is more by luck and good fortune (and reasonableness on the part of police officers enforcing the law against him and judicial officers sentencing him) that those sentences have not been more severe. While this sub-paragraph (c) might not be immediately demonstrative of the very serious nature of his offending, it does the Applicant no favours either.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction requires a decision maker to look at the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. Even a cursory review of the National Police Certificate is demonstrative of an undeniable escalation in the seriousness of the Applicant’s offending.[31] The Applicant arrived in Australia in late 2011. The first five sentencing episodes in his criminal history involve offences essentially comprising antisocial/irresponsible and disorderly conduct. These first five sentencing episodes run from February 2014 until October 2014.
[31] Exhibit R3, s 501 – G Documents, National Police Certificate, G9, page 89-90.
To my mind, there is then a dramatic escalation in the seriousness of his conduct, culminating in the appalling circumstances of the above-described offending relating to the 14 year old girl. At the risk of repeating myself, while the Applicant’s issues with alcohol remain unresolved, so does any capacity he may have to further escalate the severity of his offending. As noted by the learned sentencing Magistrate when sentencing the Applicant for his indecent assault committed upon the 14 year old girl: “It represents a change in nature and an escalation of his previous offending behaviour and that worries me. His intoxication is no excuse at all.”
Certain ratios relating to the Applicant make for sombre reading. He arrived in this country in December 2011. His final sentencing episode was in May 2017. In barely five and a half years (i.e. 66 months) participating in the general community of this country, the Applicant found himself before lawful authority on ten occasions. This translates to a ratio of one court appearance for sentencing every six months he has been in Australia.
Put another way, one can compare the totality of his time in this country with the total number of offences he has committed. As mentioned, the Applicant has been here for 66 months. In that time, his criminal history discloses that he has committed something in the order of 23 individual offences. Expressed as a ratio, this roughly equates to the Applicant committing one offence punishable by lawful authority for every three months he has spent in this country.
It is not open to the Applicant to deny the increasingly serious trend of his offending. He speaks of unresolved issues with alcohol as being causative of his offending, but while those issues remain untreated and unresolved, and in the absence of any independent prognosis of how his difficulties with alcohol may influence his future conduct, I am not convinced that were he to be allowed to return to the community, that all would be well and he would no longer offend.
Accordingly, the only conclusion that I can draw from an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, is that the frequency of the offending and its trend of increasing seriousness are significant factors confirming the very serious nature of the Applicant’s criminal offending to date.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction requires me to consider whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. This consideration can only be answered in the affirmative. His offending is consistent and, most certainly, in terms of the first six occasions he found himself before lawful authority, his offending graduated from antisocial and disorderly-type offending to the appalling circumstances of his offence against the 14 year old girl.
The balance of his offending from 2015 to 2017, while not escalatory in nature, is nevertheless persistent and consistent in terms of its refusal to respect lawful authority. While his issues with alcohol remain unresolved, there is nothing to remove the suggestion that the cumulative effect of his post-April 2015 offending would not, at some point in future, involve similar very serious offending.
I have little or no doubt that the cumulative effect of his repeated offending leads one to the conclusion that his offending days are not over and that the sentences imposed upon him to date have not caused him to learn any lesson or to change his ways. One cannot be convinced that this is the case because: (a) the Applicant has not demonstrated a capacity to positively behave in the community and (b) there is nothing from any independent or expert medical or similar practitioner detailing a diagnosis, treatment and ongoing management of the factors arising from the Applicant’s abuse of alcohol which, on his own evidence, is the primary motivator behind his very serious offending to date.
I have had regard to the totality of the evidence referable to the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction. I have reached the conclusion that the Applicant’s conduct is readily capable of characterisation as “very serious”. I have considered the Applicant’s criminal history as a whole, particularly in the context of his unresolved issues with alcohol. Being fair to him, the persistent and consistent elements of his offending history largely involve antisocial conduct and refusal to submit to lawful authority.
However, he has demonstrated in his history a disturbing capacity to engineer a significantly more serious spike in the nature of his offending as can be seen in his offence involving the 14 year old girl. I am not at all convinced that, in the circumstances of his unresolved issues with alcohol, his offending would not experience a similar future spike in both violence and ultimate harm to a victim. Viewed as a cumulative whole, his offending can thus only be described as “very serious.”
His offending is such that the nature of the harm that would result were he to reoffend would indeed be very serious and quite capable of causing significant physical or psychological harm to members of the community. Having regard to (a) the application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction; (b) a longitudinal view of his history with its persistent and consistent offending containing the spike of very serious offending relating to the 14 year old girl, and (c) the absence of any rehabilitative or other measures regarding his alcohol abuse issues, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The risk to the Australian community should the Applicant commit further offences of engage in other serious conduct
Paragraph 13.1.2(1) provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(a)Paragraph 13.1.2(2)(a) requires me to consider 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)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
I am of the view that the totality of the Applicant’s conduct is such as to lower the Australian community’s tolerance for any risk of future harm this Applicant may cause, given the consistent and persistent nature of his offending, marked as it is with a ready propensity to significantly escalate in seriousness. The uncertain trajectory of his offending is such that, were it to be repeated, it would likely be so serious that any risk of such repetition would be unacceptable to the Australian community.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
In my view, an assessment of the nature of the harm resulting from further criminal or other serious conduct by this Applicant is informed by the following factors:
·He has a demonstrated lack of insight into the nature of the harm that his persistent and consistent offending has caused other people, be it in the form of a large-scale social disturbance attracting the attention of 50 people or in the form of the dreadful circumstances involving the 14 year old girl;
·This lack of insight extends to the potential catastrophic outcomes that could have and may in future result from his very serious conduct. It was clear from his evidence that the Applicant has neither given serious thought to nor fully comprehended the outcomes that could result were he to continue his offending ways;
·He has a propensity to yielding to the escapist effects of alcohol which, in turn, predispose him to ignoring both lawful and personal parameters and engaging in menacing, antisocial, disruptive and violent behaviour towards those around him;
·There can be no doubt from his criminal history that this Applicant has outrightly refused to accept, respect and defer to lawful authority, whose purpose it is to protect the community from the danger presented to it by the very serious offending behaviour he has demonstrated to date;
·His demonstrated inability to derive any deterrent benefit from punishments imposed on him ranging from convictions and discharges without penalty to convictions and fines to the imposition of custodial, but wholly suspended, terms of imprisonment; and
·His evidence at the hearing for the return of his visa so that he can then seek some assistance and treatment for his issues with alcohol. Viewed at its highest, this is aspirational evidence for wishing, at some future point, to resolve his issues with alcohol. Such evidence is not suggestive of those issues being presently under any sort of management or control.
Having regard to the consistent and persistent nature of his offending history, containing, as it does, an unpredictable capacity to spike in seriousness, I am of the view that were the Applicant to reoffend in a similar manner, the risk that he would pose to a member of the general public or a member of the law enforcement community would be very significant. That harm could result in others suffering anything from financial loss, to serious physical or psychological injuries or, conceivably, death. I am therefore of the view that the potential future harm that the Applicant may cause to members of the Australian community is very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
As will be gleaned from the abovementioned quoted portions of sentencing remarks made by various judicial officers, there is a recurring theme of the Applicant being intoxicated whilst offending. Indeed, there is a ready acknowledgement by the Applicant in this regard: “I do admit my alcohol abuse and know that it was my major factor to my offending…”[32].
[32] Exhibit A1, Applicant’s SFIC, paragraph 8, page 2.
The Applicant purports to rely on the purported completion of certain remedial programs while in detention, aimed at addressing his issues with alcohol. While there is evidence of some level of engagement with the rehabilitative process, it goes no higher than the remarks of the learned sentencing Magistrate when sentencing the Applicant for his offending in November 2015:
I have also had regard to all the matters referred to in the pre-sentence reports provided… They suggest that you may have some underlying mental health issues although there has been no formal diagnosis. They indicate that since imposition of the suspended sentence bond for Indecent Assault in April this year, which included a condition that you be under supervision and undertake treatment regarding alcohol issues, you have struggled to engage in the supervision process. You have attended supervision under the influence of alcohol on the majority of occasions. You have been aggressive and abusive on more than one occasion when intoxicated and asked to leave…
However, the most recent pre-sentence report states that there has been some improvement in your engagement with supervision in the last four to six weeks. You have presented to supervision as required and lessened your alcohol consumption prior to appointments…You underwent in-house detoxification… earlier this year. You stayed there for the duration, but after a short period of abstinence declined to follow up treatment and relapsed into alcohol use.
…despite the support with which you have been provided to date, it appears from all the information before me and as shown by the offences before the court today, that alcohol still poses a significant issue for you and continue to underlie much of your offending.
On the last occasion I called for Magistrate Harrap’s [who sentenced the Applicant for the Indecent Assault] sentencing remarks when you entered both suspended sentence bonds. Magistrate Harrap said it on the last occasion and I will say it again now – your intoxication is no excuse for your offending. The offences before Magistrate Harrap were committed only weeks after you entered into a good behaviour bond. Magistrate Harrap stated that in many respects, those suspended sentences were your last chance. He said you needed to address your alcohol issues and if you did not comply with each and every condition of the bond you would go to jail. Yet again you have breached both the suspended sentence bonds shortly after entering into them.
[my underlining]
Thus it can be seen that the Applicant’s previous attempts at engaging with the rehabilitative process have been both transitory and less than successful. At the hearing, the Applicant tendered a certificate of completion of a more recent (i.e. August 2018) substance abuse program as part of the “Holyoake Men’s Group Program”.[33] This certificate is an attachment to a report from Mr Mark Mahon, Senior Counsellor, Counselling and Support at the immigration detention centre where the Applicant is being held. Mr Mahon says:
[The Applicant] has thus far attended four Holyoake Men’s Group counselling sessions out a twelve week program at the Yongah Hill Immigration Detention Centre.
This group is predominantly alcohol and drug related. Topics covered include: The Process of Dependency, Change, Relapse Prevention and Letting Go, Emotions and Stress, Embarrassment, Guilt and Shame, Personal Boundaries, Communication, Grief and Loss, Family Dynamics and Coping Behaviours, Self-Esteem, Understanding Behaviours, Relationships and Self-Responsibility.
[The Applicant] has indicated that he intends to continue to attend the program.
[The Applicant] has continued access to the services of this agency.[34]
[my underlining]
[33] Exhibit A3.
[34] Ibid.
I have misgivings about the reliability and veracity of any evidence from the Applicant that he now intends to more fully engage in the rehabilitative process. I cannot take this evidence seriously in circumstances where in the relatively closed confines of immigration detention, the Applicant has seen fit to attend only four Holyoake Men’s Group Counselling sessions out of a 12 week program. It is of no credit to the Applicant for him to rely on a certificate obtained by completing a third of the necessary sessions. Put another way, if I am wrong in that observation, the certificate is of little value if Mr Mahon’s words about the number of sessions attended were coined on the basis that the program still had two thirds of its duration to run. Even in those circumstances, an incomplete program of counselling cannot be said to constitute a fulsome engagement with the process of rehabilitation.
In the final analysis, it cannot be denied that there has simply been insufficient opportunity to test the Applicant’s claims of rehabilitation, because he has been either in criminal custody or in immigration detention on a continual basis since March 2017. The Applicant has not spent any unsupervised time within the community such that his claims of rehabilitation and thus, a lower likelihood of his reoffending, can be properly gauged or tested.
Both during the hearing before me and in his written material, the Applicant has sought to rely on a submission that his offending is attributable to a lack of fluency in spoken and written English such that it caused him to not know about the laws and regulations governing lawful conduct within the Australian community:
I am sadly to say [sic] that when I came to Australia, I can’t speak and read English very well, I correctly didn’t know about the laws, rules, and policies of the government of Australia. Therefore, I lived my life without obeying the laws, rules, and policies of the government. When I drank alcohol, I did not obey policies, women and others [sic] people …[35]
[35] Exhibit A2, Petition to the Government of Australia, page 1.
It is difficult to attribute any realistic weight to such a contention because one does not need to be versed in the laws of any country to know that one does not abuse alcohol and then behave violently towards law enforcement officers. One does not need to be versed in the laws of any country to know that one does not indecently assault a 14 year old girl and attempt to unduly influence her by suggesting the ingestion of illicit narcotic substances, nor trying to physically impose himself upon her by forcibly guiding her somewhere she does not intend to go. Similarly, one does not need any detailed knowledge of the laws of any country to know not to cause a fracas that alarms up to 50 people around oneself and necessitating the intervention of the police.
His further submission that his offending “…has been at the lower end of the criminal scale” is deliberately ignorant of both its consistent and persistent nature and the very serious indecent assault offence on the 14 year old girl, which could have, quite conceivably, resulted in very serious consequences for her and significantly more serious charges for the Applicant.
Having regard to the available evidence in relation to this Primary Consideration A, I am of the view that the Applicant is nowhere near being in control of his issues with alcohol (and perhaps other illicit substances) that have been the root causes of his offending. Having further regard to the totality of the Applicant’s evidence, I am of the view that he has limited or no insight into his offending due to (a) his failure to derive any benefit from ameliorative and beneficial interventions designed to assist him to change his offending ways; and (b) his failure to meaningfully engage with the rehabilitative process. I find that there is a high likelihood that the Applicant will reoffend in the same manner as he has done in the past – that is, in at least a serious way and, most probably, in a very serious way.
Conclusion: Primary Consideration A
I find that the Applicant’s failure to moderate or control his behaviour for virtually the entirety of his time in this country points to a strong likelihood that he will engage in further serious conduct if returned to the Australian community. I am also of the view that it is quite likely that harm would be occasioned to others were he to reoffend and that such harm would be both substantial and serious, as has been the harm caused by his offending to date. In consideration of all relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of the Applicant’s visa being cancelled.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
There are no relevant children whom could have their best interests considered in this case, and, accordingly, I find that Primary Consideration B is of no weight to my consideration of this matter.
Primary Consideration C: The Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an applicant’s offending is such that the Australian community would expect that they should not hold a visa.
For the purposes of considering the present matter, the essential question with respect to this Primary Consideration C is surely whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending, his lack of engagement with the rehabilitation process and his consequential lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether this Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
To my mind, the essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in late 2011 and found himself before the sentencing courts in Australia just over two years after arriving here and then further found himself before those sentencing courts on a number of occasions from 2014 until 2017;
·The persistent and consistent nature of his offending has caused him to be the subject of the imposition of lawful authority on:
o February 2014;
o April 2014 (on two occasions);
o June 2014;
o October 2014;
o April 2015;
o November 2015;
o March 2017;
o May 2017;
·He has committed offences that can be categorised as follows:
oOffences indicating a refusal to submit to lawful authority (at least 11 offences);
oOffences of violence (including indecent assault against a 14 year old girl and assaulting a police officer) (at least 2 offences);
o Disorderly conduct offences (at least 17 offences);
·His most recent sentencing regime has seen him in criminal custody and then immigration detention on a continuous basis from 5 May 2017;
·For the seven years he has spent in this country, virtually two of those years have been spent in either criminal custody or immigration detention. The remaining approximately five and a half years have been largely dominated by a criminal history running from February 2014 to May 2017;
·For the barely five and a half years he has spent in the general Australian community, the Applicant has found himself before lawful authority on 10 occasions, or, put another way, one court appearance for sentencing every six months. As mentioned earlier, the frequency and consistency of his offending is such that the Applicant has committed an offence punishable by lawful authority once every three months during his time in the general community of this country; and
·There is nothing before the Tribunal from a medical or other independent expert, either:
oproviding any diagnosis of the factors giving rise to the Applicant’s propensity to offend; or
oproviding confirmation that he has successfully submitted to a regime of treatment and management of those factors; or
oproviding any prognosis as to any future likelihood of the Applicant reoffending and, if so, the nature of any such future offences.
I am mindful of the elements necessary to be balanced in any proper consideration and application of this Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching the decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of:
…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.[36]
[36] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Of course, the changing geopolitical profile of the world over time would inform and, even alarm, any reasonably minded member of the Australian community. Times and circumstances change, which sometimes spawns an alteration in the community’s apprehension of how a specific statutory power ought be applied. Global circumstances have definitely changed since the early 2000s. Its effect on how Courts and Tribunals have sought to apply s 501 of the Act (and more particularly, paragraph 13.3(1) of the Direction) is palpable, particularly in more recent decisions.
Deputy President Forgie of this Tribunal has considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[37] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[37] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[38]
[76] In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[38] [2017] FCA 1466 at [76].
The learned Justice Mortimer went further, and considered the last two sentences of paragraph 13.3 of the Direction:
[76]…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.[39]
[My underlining]
[39] Ibid, at [76] – [77].
In Afu v Minister for Home Affairs,[40] Justice Bromwich said:
[85] …The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms, which is precisely what it did.
[40] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonably minded member of the Australian community would consider that the Applicant has been adequately punished by serving repeated custodial terms for his lengthy record of serious offending, such that he should not now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The serious nature of his offending with its persistent and consistent pattern of offending containing, as it does, the spike of very serious offending arising from the indecent assault committed upon the 14 year old girl;
(ii)The Applicant’s historically stubborn refusal to accept and submit to lawful authority;
(iii)His refusal to derive any benefit from reasonable and non-custodial punishments imposed on him, be they in the form of good behaviour bonds, discharges without penalty or wholly suspended sentences;
(iv)His unresolved issues with alcohol and, possibly, illicit substances as well, which has clearly skewed his capacity to moderate and regulate his behaviour in a social context and in his interaction with other members of the community;
(v)My assessment of the significant risk of substantial harm to the Australian community were he to reoffend;
(vi)A virtual absence of any meaningful participation in a rehabilitative process, with clear evidence that he returned to his offending ways after some scant involvement in such a program in 2015; and
(vii)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in a contemporary context.
I therefore find that the Australian community would consider that this Applicant has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would not consider it appropriate that this Applicant should continue to hold a visa.
At the hearing before me, the Applicant spoke of wanting to return to the community to make a genuine attempt to re-establish his life in this country, to look for work and to properly address his issues with alcohol. Does he deserve such an opportunity? The answer depends on the circumstances of his case, to be considered in light of the overriding purpose of the legislation.[41]
[41] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
As mentioned, the Applicant arrived in Australia in December 2011. On his own evidence, he has never worked while in Australia. During his time in Malaysia, before coming here, he said he had worked as an air conditioning installer. He spoke of wanting to grow and develop his participation in his local church group.
I have had regard to certain references tendered by the Applicant. There is a reference from a Pastor Mang Hlei Cung[42] from the Adelaide Chin Christian Church. Pastor Cung did not give evidence at the hearing and his written reference contains little to no knowledge of the Applicant’s offending history. Be that as it may, Pastor Cung says:
…as his pastor I used to pray for him and encourage him…He also heartedly confess [sic] and sorry for his past life and really repentant, promising me that if the government grant his Visa again he will have good characters [sic] and live in accordance with the laws and participate in our Church activities. He told me that all he had done before was because of the alcoholic influence.
[42] Exhibit A4 – Reference (undated) – Pastor M.H. Cung, Adelaide Chin Christian Church.
There is a further reference from Mariloly Reyes Munoz, Team Leader at Multicultural Youth SA Inc,[43] who did not give evidence at the hearing before me. Again, there is scant or no reference to any knowledge of the Applicant’s offending history. The reference speaks of potential support that this organisation could offer the Applicant. The reference does not say the Applicant has actually engaged with this group for ongoing and/or concluded treatment or counselling. Tellingly, Ms Munoz says:
Although [the Applicant’s] engagement with MYSA has at times been ad hoc he generally engages extremely well and has a positive rapport with myself and the service and knows to access the service when he requires support.[44]
[my underlining]
[43] Exhibit A5 – Reference (dated 25 May 2018) – Mariloly Reyes Munoz, MYSA Inc.
[44] Ibid, page 1 of 2.
Simon Cinzah is Deputy Chairman of the Chin Community of South Australia Inc. Mr Cinzah provided a reference in support of the Applicant,[45] but did not give oral evidence at the hearing. Mr Cinzah’s reference contains no knowledge of the specific nature of the Applicant’s offending. It makes reference to the Applicant’s “…undesirable habits such as drinking.” It goes no further than to say that the Applicant has “…tried to engage with the church and TAFES [sic] classes.” Mr Cinzah concludes with “I believe with an appropriate treatment and support plan, he should get better.”
[45] Exhibit A6 – Reference (dated 12 November 2018) – Mr Simon Cinzah, Chin Community of South Australia Inc.
The Applicant’s brother also provided a reference.[46] The reference is silent as to any knowledge of or explanation about the Applicant’s history of offending. The brother speaks of supporting the Applicant with “…accommodation, counselling and linking to church groups and community group activities.” The reference needs to be treated carefully in circumstances where, on the Applicant’s own evidence, his previous period of lodging with his brother and his family saw the Applicant acrimoniously removed from the brother’s residence.
[46] Exhibit A7 – Reference of the Applicant’s brother –dated 9 November 2018.
Well-intended though these references may be, they contain little or no discussion or knowledge about the Applicant’s history of offending, nor do they address the predominant theme behind his offending, namely, his significant and unresolved issues with alcohol. Put at their highest, these references are, to an extent, informative but not determinative.
Perhaps my greatest reservation and concern arising from the factual circumstances of this matter arises from the unresolved nature of the Applicant’s issues with alcohol. As recognised by multiple previous sentencing judicial officers, it is the alcohol that corrupts the Applicant’s moral compass and that causes him to not delineate between right and wrong and to otherwise fail to act in a way that a reasonably minded member of the Australian community would expect. Therefore, I am of the view that he is likely to reoffend and, if he does, the consequences will most likely be very serious.
The Australian community would, in these circumstances, consider that if released back into the community, the Applicant represents an unacceptable risk of further breaching the trust that our community placed in him when he first came here in December 2011.
As is all too often heard in matters such as this, the Applicant speaks of a further chance to re-establish his life in this country. His history is clear: he has had those chances. Whether it has been in the form of favourable and non-custodial terms imposed by the courts, the support of an apparently loving brother and both church and community groups who seem willing to help him. It is the Applicant who has failed to take those opportunities and, indeed, ignored them. I am of the view that a reasonably minded member of the Australian community would conclude that there is little more our country can do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a chance to be released from immigration detention and to resume his life here.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancellation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[47]
[47] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
The Applicant has contended and continues to contend that he fears the prospect of returning to Myanmar. In his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A), he said:
·Yes. I left my country to save my life because the authority of Burma searching me to arrest;
·I must be charged with illegal crossing the border and becoming as a refugee;
·I must be putting to jail for long time by the authority with my case the reason why I left my country;
·My life is still danger in my country because the conflict between Burmese Army and ethnic arms group are still happening in the country. Mostly, the ethnic people (minorities) are living with fear every day due to the Burmese army attacked can never stop in the area. Many villagers were arrested and tortured brutally until now. There is no human rights, no freedom and no peace in the country because the country are still under the military controlled. Democratic leader Aung San Su Kyi and her parliament members can do nothing over the military.[48]
[48] Exhibit R3, s 501 G Documents, G16, pp. 123 and 124.
Judicial officers who have sentenced the Applicant have also noted his past in Myanmar. Magistrate Duncan of the Magistrates Court of South Australia while sentencing the Applicant in November 2015 noted:
You are 26 years old from Burma. You are a young man who has faced significant trauma and hardship in your life. You fled persecution in Burma in 2009. You went to Malaysia and spent time in a Malaysian prison and refugee camp and entered Australia through a humanitarian program in 2011.[49]
[49] Ibid PG11, p. 97, paragraph [16].
Similarly, Magistrate Foley, also of the Magistrate’s Court of South Australia, while sentencing the Applicant in March 2017, noted:
You are 27, single, from Burma. The minority community in Burma of which you are a part of I am told was subject to a level or [sic] persecution by the authorities and following being captured by the military you have not seen your family, except for one brother, who also lives in Australia, since.
Prior to coming to Australia in late 2011 you spent two years as a refugee in Malaysia and when you first arrived in Australia you lived with your brother…[50]
[50] Ibid, PG12, p. 103, paragraphs [8] and [9].
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A 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…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WK) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[51] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[51][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[52] In Greene v Assistant Minister for Home Affairs,[53] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[54]
[52] [2018] FCA 650.
[53] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[54] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Class XB, Subclass 200 Refugee visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[55] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[55] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that assessment was made before the Applicant came to Australia in December 2011. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).[56]
[56] Ali v Minister for Immigration and Border Protection (2017) 248 FCR 456, [2017] FCAFC 96, [33].
As things stand, the Applicant has given evidence that both of his parents and his sister continue to reside in Myanmar, but that he was fearful of what the Burmese army would do to him. While the Respondent’s representative sought to test the Applicant’s evidence about an apprehension of harm were he returned to Myanmar, it seems those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor on or prior to December 2011 that his claims for a refugee visa were genuine. In the hearing before me, the Applicant gave unconvincing evidence about his apparent fear of harm were he to be returned to Myanmar.
In response to the specific question as to who exactly would harm him upon his return, he vaguely answered “The army”. He was asked about how that harm would occur and he responded by saying that he would be forced to join the army and consequently forced to commit violence against other people. He was asked whether the army or anyone else in Myanmar had ever harmed him, his parents or anyone else within his social or family circle. He responded in the negative. As I understood the Applicant’s evidence, his apprehension or fear of harm were he to be returned to Myanmar, crystalises in a possibility that he will be asked to join the army and possibly be ordered to do things he does not want to do. This, to my mind, is a separate and distinct thing from the army (or anyone else in Myanmar) directly inflicting harm on the Applicant.
The Applicant also gave somewhat peculiar evidence to the effect that if returned to Myanmar, he would not be able to be identified or, put another way, he would not have any identity. I found this evidence very unconvincing because it was put to him that, surely, his parents and/or his sister would be able to recognise him and confirm his identity, to which he responded “Yes.”
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this Other Consideration (a) weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
There is an acknowledgement by the Respondent that the Applicant has some ties to Australia, given that he has resided in this country for nearly seven years and has a brother who also resides here.[57] As against that, it should be noted that the Applicant has previously resided with his brother and his family, but that the brother’s wife demanded (successfully) that the Applicant leave that residence due to the domestic disharmony caused by his abuse of alcohol. Although the brother now says (as does the Applicant in his own evidence at the hearing) that the Applicant could return to live with him and his family[58], I have misgivings about the longevity of any such arrangement in circumstances where the Applicant’s issues with alcohol remain unresolved.
[57] Exhibit R1, Respondent’s SFIC, page 15, paragraph [52].
[58] Exhibit A7 – Reference of the Applicant’s brother –dated 9 November 2018.
The weight attributable to this Other Consideration (b) is, to my mind, lessened because of the operative effect of paragraph 14.2(1)(a) of the Direction. The Applicant arrived in Australia at the end of 2011/beginning of 2012. He commenced offending in Australia in early 2014. Paragraph 14.2(1)(a) stipulates that less weight should be given to this factor when a non-citizen begins offending soon after arriving here. The Applicant speaks of wanting to re-commence his life in Australia to make some sort of positive contribution to the community. Commendable though this aspiration may be, it does not satisfy the alternate requirement of paragraph 14.2(1)(a) of the Direction, which allows for more weight to be given to this Other Consideration (b) if the non-citizen has made a positive contribution to the Australian community.
Accordingly, having regard to the totality of the evidence about the Applicant’s ties to Australia, I concur with the Respondent’s contention that it weighs slightly in favour of the Applicant but is not outweighed by the Primary Considerations weighing heavily against revocation.
(c) Impact on Australian business interests
There is no evidence before me that this Other Consideration (c) is of any relevance in determining this Application.
(d) Impact on victims
Several sentencing judicial officers have spoken of the social disturbance and harm resulting from the Applicant’s numerous episodes of offending. However, there are no actual victim impact statements (or equivalent) for any of the victims or other people on the receiving end of the Applicant’s very serious conduct.
There is nothing before me in the form of a victim impact statement (or equivalent) from, for example, the 14 year old girl or the law enforcement officer who suffered physical trauma or the bus driver against whom the Applicant offended.
In the absence of any evidence of the impact of the Applicant’s continued presence in Australia on his victims, it would be an exercise in mere conjecture for me to form a concluded view about the effect his continued presence in this country would have on his victims.
I am therefore not able to conclude that this Other Consideration (d) attracts any weight either in favour of, or against, the revocation of the Applicant’s visa. Therefore, this Other Consideration (d) is neutral.
(e) Extent of impediments if removed
Little or nothing emerged from the evidence at the hearing indicating the Applicant would face insurmountable impediments if returned to his country of origin. I am of the view that the Applicant will be able to re-establish himself in Myanmar and maintain basic living standards similar to those generally available to other citizens of that country.
Pursuant to sub-paragraphs (a), (b) and (c) of paragraph 14.5(1) of the Direction, the following findings can be made:
· While there is evidence of the Applicant suffering a back injury resulting from a motor vehicle collision in, there is no medical evidence before me to the effect that this injury requires on-going treatment and management and that it consequently is an impediment to his removal from Australia. That claimed back injury aside, the Applicant is a young man of 29 years with no other significant health concerns;
· There are no substantial language or cultural barriers facing the Applicant were he to be returned to Myanmar. I agree with the Respondent’s contention: he may face some difficulty in re-establishing himself in Myanmar, but this would only be for the short-term and not insurmountable;[59] and
· As a citizen of Myanmar, and having resided there for something in the order of the first 20 years of his life, the Applicant would have the same access to social, medical and economic support as other citizens of Myanmar. Any negative impact of this subparagraph of the Direction is assuaged by the reality that his parents and sister reside in Myanmar.
[59] Ibid, page 15, paragraph [55].
I am thus of the view that this Other Consideration (e) is of neutral weight in terms of exercising the discretion to revoke the decision to cancel the Applicant’s visa.
Conclusion: Other Considerations
The allocation of weight to the Other Considerations in this matter can be stated thus:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs slightly in favour of the Applicant;
(c)Impact on Australian business interests: not relevant to my decision;
(d)Impact on victims: weighs neither in favour of nor against the Applicant and is thus of neutral weight;
(e)Extent of impediments if removed: weighs neither in favour of nor against the Applicant and is thus of neutral weight.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, I find that there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find:
·Primary Considerations A and C weigh heavily in favour of non-revocation; and
·Primary Consideration B is of no weight; and
·The combined weight of the Other Considerations is such that none of them, alone or combined, outweigh the significant weight that I have attributed to Primary Considerations A and C.
I therefore find that a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..............................[sgd]..........................................
Associate
Dated: 14 January 2019
Date of hearing: 7 January 2019 Applicant: In person Advocate for the Respondent: Jake Kyranis Solicitors for the Respondent: Sparke Helmore
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