BPJK and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2560

BPJK and Minister for Immigration and Border Protection (Migration) [2017] AATA 2560 (7 December 2017)

Division:GENERAL DIVISION

File Number:          2017/5724

Re:BPJK

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:7 December 2017

Place:Brisbane

The decision under review is affirmed.

.......................[SGD].................................

Senior Member T. Tavoularis

MIGRATION – review of decision not to revoke mandatory visa cancellation – Applicant had a Refugee and Humanitarian (Class XB) (Subclass 202) (Global Special Humanitarian) visa – Applicant committed a number of offences – Applicant’s visa cancelled under s 501(3A) – he was sentenced to more than 12 months prison and was serving full-time term of imprisonment – Applicant failed character test – whether there is another reason to exercise discretion to revoke cancellation of visa – Primary Considerations A and C weigh heavily in favour of non-revocation – Other Considerations: non-refoulement, strength of ties, and extent of impediments if removed, weigh moderately in favour of revocation – no reason to exercise discretion - decision under review affirmed.

Legislation

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases

Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION

Senior Member T. Tavoularis

7 December 2017

INTRODUCTION

1. This matter relates to an application for review filed by “BPJK”[1] (“the Applicant”) on

   
   

   21 September 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 13 September 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was not to revoke the original cancellation decision.[2]

   [1] Applicant’s name has been supressed.

   [2] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).

2. The Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.

   BACKGROUND

3. The Applicant is a 26 year old citizen of Liberia. He was granted a Refugee and Humanitarian (Class XB) (Subclass 202) (Global Special Humanitarian) visa (“the visa”) offshore on 16 November 2006. He arrived in Australia on 25 January 2007, aged 16. His movement records confirm he has not left Australia since his arrival.[3]

   [3] See Exhibit 9, G Documents, G20, p 91.

4. The Applicant has been charged and convicted with a number of offences since being in Australia. They can be briefly summarised as follows:

   ·17 January 2012 – Perth Magistrates Court – Disorderly Behaviour in Public – fined $600;

   ·29 June 2012 – Perth Magistrates Court – Damaging property, assault public officer (x 2), obstructing public officers – fined $1,200;

   ·10 August 2012 – Perth Magistrates Court – Being armed or pretending to be armed in a way that may cause fear, obstructing public officers, assault driver of passenger vehicle (x 2), disorderly behaviour in public – fined $1,500;

   ·15 May 2014 – Adelaide Magistrates Court – Resist police, hinder police, disorderly behaviour – convicted and fined $365;

   ·26 August 2014 – District Court of South Australia – Cause death by dangerous driving – aggravated offence – imprisonment for 2 years 6 months 2 weeks commencing 26 August 2014 and licence disqualified for 10 years.

5. This matter concerns the circumstances whereby the Applicant’s visa was cancelled due to his criminal history and incarceration and the subsequent refusal of the Minister’s delegate to revoke that cancellation.

6. On 4 August 2016, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Act.[4] The mandatory cancellation power was enlivened because the Applicant failed the character test,[5] and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against Australian law.

   [4] See Exhibit 9, G Documents, G3, p 14.

   [5] The Applicant had a substantial criminal record because he had been sentenced to a term of imprisonment of more than 12 months pursuant to ss 501(6)(a) and 501(7)(c) of the Migration Act 1958.

7. On 10 August 2016, the Applicant made representations seeking revocation of the mandatory cancellation of his visa.[6] Included with the Applicant’s request for revocation there was a personal circumstances form, statements from the Applicant, and about four letters of support.[7]

   [6] See Exhibit 9, G Documents, G11, pp 61 – 65.

   [7] See Exhibit 9, G Documents, G12, pp 66 – 76, and G13 – G19.   

8. On 13 September 2017, a delegate of the Minister considered the matter and decided not to exercise the discretion in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[8] The decision was delivered to the Applicant by hand on

   
   

   14 September 2017.[9]

   [8] See Exhibit 9, G Documents, G6, pp 34 - 51. 

   [9] See Exhibit 9, G Documents, G7, p 52. 

9. On 21 September 2017, the Applicant lodged an Application for Review of that decision with this Tribunal.[10]

   [10] See Exhibit 9, G Documents, G2.

   ISSUES

10. The issue I must consider is whether, in the circumstances of this case, the discretion in

    
    

    s 501CA(4) of the Act should be exercised in favour of revoking the mandatory cancellation of the Applicant’s visa.

11. When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider:

    (i)whether the Applicant passes the “Character Test” as defined in s 501 of the Act; and if not

    (ii)whether there is another reason why the mandatory cancellation decision should be revoked.

12. The Minister contends that the Applicant does not pass the character test and that there is not another reason to exercise the discretion to revoke the mandatory visa cancellation decision. Therefore, according to the Minister, the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant’s visa.[11]

    [11] See Exhibit 8, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at [21-22] and [53].   

13. I will consider each of these issues in turn.

    ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?

14. It was not disputed by either party at the hearing that the Applicant does not pass the character test. For the sake of completeness, I will briefly address this issue.

15. On 26 August 2014, the Applicant was sentenced to a term of imprisonment for 2 years 6 months and 2 weeks by the District Court of South Australia for the offence of ‘cause death by dangerous driving – aggravated offence’. 

    Character assessment

16. The character test is defined in s 501(6) of the Act. It provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the “character test” if they have a “substantial criminal record” as defined in s 501(7). According to s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.

17. Failure of the character test arises as a matter of law.[12] Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment. There is no doubt the Applicant has a “substantial criminal history” within the meaning of s 501(7)(c) of the Act, and as such, he does not pass the character test.

    [12] Harrison and Minister for Immigration and Citizenship [2009] AATA 47 at [63] per Deputy President Block.

18. I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.

    ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

19. 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. In this case, Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    “Informed by the principles in paragraph 6.3, a decision maker: 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.”[13]

    [13] Direction No 65, paragraph 7(1)(b).

20. Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration.  They are as follows:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The 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.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

    (5)  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…

    (6)  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.

    (7)  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.

21. The considerations relevant in the context of a revocation request appear in Part C of the Direction. Paragraph 13 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; and

    (c)Expectations of the Australian community.

22. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

23. 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; and

    (e)Extent of impediments if removed.

    Primary Consideration A:  Protection of the Australian Community from Criminal or Other Serious Conduct.

24. 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.

    (a) The Nature and Seriousness of the Applicant’s Conduct to Date

25. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: (i) without limiting the range of offences that may be viewed as serious, violent and sexual crimes are viewed very seriously; (ii) the sentence imposed by the courts for a crime or crimes; (iii) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and (iv) the cumulative effect of repeated offending.

    Principle: Violent Crimes are viewed seriously

26. While I accept that taking charge of a motor vehicle whilst over the legal blood alcohol limit is not, strictly speaking, a “violent offence”, the consequences of such an act very often results in a violent or tragic outcome. This is exactly what has occurred here. It is not enough for the Applicant to say that he was socialising with the victim of his drink driving and that the victim somehow badgered or convinced him – apparently throughout the evening’s festivities – to drive him home. Such evidence is both disingenuous and an affront to a deceased person who is not available to corroborate or deny that evidence.  Therefore, while drunk driving may not of itself constitute a violent offence it seems clear to me that the sentencing court thought the offending to be sufficiently serious such as to convict the Applicant of cause death by dangerous driving with circumstances of aggravation.

27. Mention should also be made of the Applicant’s conduct resulting in the assault of the two taxi drivers in the incident which occurred on 5 April 2012, for which he was fined $1,500 by the Perth Magistrates Court on 10 August 2012. The circumstances of those assaults make for sobering reading. Not only did the Applicant physically attack the two taxi drivers, he also sought fit to arm himself with a one meter length iron bar while he was chasing one of the victims just prior to making a threat to kill.[14] While the punishment was moderate in terms of a fine, there can be no suggestion that the conduct was anything other than violent and menacing.

    [14] See Exhibit 6, Bundle of documents from South Australia & Western Australia Police, p 3 of Statement of Material Facts dated 5 April 2012.

    Principle: Sentence imposed by Courts

28. The imposition of a term of imprisonment is the last resort in the hierarchy of sentences available to a sentencing court. This principle logically implies that imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offence involved. As outlined earlier, the Applicant was sentenced to just over two and a half years in custody and he served the entirety of that term.

29. It seems that the Applicant has not fully appreciated the nature and seriousness of his dangerous driving offence that resulted in the death of his best friend. One of the objects of the imposition of a custodial term is to facilitate insight in the mind of the offender into his/her culpability for the offending conduct and to then remove that individual from mainstream society in an effort to deter that person from commission of further like offences.

30. This does not seem to be the case with this Applicant. In the margin of the decision by the Minister’s delegate, the Applicant wrote these words: “If my offence was serious I would have getting more time in prison.”[15] Putting aside the Applicant’s misconception about the adequacy or otherwise of the custodial term he received, what concerns me about his comment is that he does not seem to grasp the seriousness of what he has done. He misconceives the intention of the sentencing court by suggesting that court did not regard his offending as serious. Clearly it was, because it caused him to automatically fall foul of the character test and serve a term of imprisonment on a full-time basis, and thus his visa was cancelled. At the risk of sounding trite, one wonders if the Applicant now comprehends the gravity and seriousness of his offending conduct.

    [15] See Exhibit 9, G documents, PG2, p 7.

31. The gravity and seriousness of the Applicant’s offending clearly struck a chord in the mind of the sentencing judge who chose not to either wholly or partly suspend the imposed sentence. The sentencing judge had regard to the seriousness of the offence, the maximum penalty prescribed and the Applicant’s prior record when making that decision.[16]

    [16] See Exhibit 9, G documents, PG9, p 58.

    Principle: Frequency of offending and trend of increasing seriousness

32. The Applicant arrived in Australia in January 2007. He commences his offending in or about January 2012, and received a fine of $600 for disorderly behaviour in public. In the middle of 2012 the trend of offending seems to increase in seriousness such that there are respective transgressions against the personal and property rights of others, while at the same time, demonstrating a refusal to respect and follow lawful authority. For this offending, he received a fine of $1,200 for damaging property, for assaulting a public officer (two charges) and obstructing public officers in the course of their duty.  

33. In August 2012, the seriousness of the offending conduct seems to incrementally increase again when he is fined $1,500 by the Perth Magistrates Court for being armed or pretending to be armed in a way that may cause fear, obstructing public officers, two charges of assaulting the driver of a passenger vehicle and a charge of disorderly behaviour in public. The theme of a lack of respect of lawful authority is clearly repeated.

34. The circumstances of this offending, can be gleaned from the Statement of Material Facts accompanying the charge documentation, which recounts the sequence of events as follows:

    “At about 5:40am on Thursday the 5^th of April 2012 victim [the taxi driver] has attended the home address of the accused [address redacted].

    [The taxi driver] has picked up the accused to take him to an unknown location as he has not provided an intended address, instead [the taxi driver] has followed the directions of the accused which have lead him to a dead end…

    The accused has become angry and aggressive, clenching his fists towards [the taxi driver], accusing him of going the wrong way.

    Fearing for his personal safety [the taxi driver] has requested the passenger to get out of the taxi. This request has enraged the accused, who has lunged towards [the taxi driver] with his fists clenched.

    [The taxi driver] has exited his taxi and hailed down another taxi driven by [TD2], for assistance, as [the taxi driver] has done this the accused has punched [the taxi driver] on the right arm and in the stomach. [The taxi driver] has requested [TD2] to call Police.

    The accused has exited the taxi and approached [TD2] who was using his mobile phone to contact Police. The accused has then punched [TD2] in the hand and stomach.

    The accused has then picked up an iron bar, namely a leg of a road side sign approximately 1 meter in length, and rushed towards the [taxi driver] with the intent of striking him. [The taxi driver] has abandoned his taxi and run off towards BP Ascot with the accused chasing after him carrying the iron bar. [TD2] has driven off in an unknown direction.

    [The taxi driver] has run inside the BP Ascot and requested staff to call the Police. The accused followed, leaving the iron bar outside of the service station. The accused has approached [the taxi driver] inside the store and acted in an aggressive and abusive manner, saying, “Step outside I am going to kill you”.

    Numerous customers were in the store and attempted to calm down the accused.

    On Police arrival, the accused was observed in the passenger seat of a delivery truck…. he was requested to get out, take his bag off his back and put his hands on the wall of the service station. The accused complied however when the accused was informed by [the Police Constable] he was under arrest for suspicion of assault and requested to put his hands behind his back, the accused instantly became argumentative saying, “Fuck you, no way”.

    The accused refused to put his arms behind his back, he flexed his arm and resisted Police by pushing [the Police Constable], who was attempting to handcuff the accused. The accused was subsequently taken to the ground and restrained in handcuffs.”[17]

    [17] See Exhibit 6, Bundle of documents from South Australia & Western Australia Police, p 3 of Statement of Material Facts dated 5 April 2012.

1. When this series of material facts were put to the Applicant at the hearing, his tepid response was “I don’t remember that”.

2. The Applicant’s intended fresh start in Adelaide was sullied by antisocial, disruptive and defiant behavior for which he was convicted and fine the sum of $365 on 15 May 2014. This conduct involved resisting and hindering police in the course of their duties with accompanying disorderly behavior. The Applicant’s explanation for this offending was both weak and unconvincing. He sought to tell the Tribunal that the incident was caused by a disagreement between him and his girlfriend about the social arrangements on that given evening: she apparently wanted to go out and he apparently wanted to stay home and watch movies. The resulting conduct arose from police being called to intervene and resolve the domestic dispute.

3. On 26 August 2014 the District Court of South Australia sentenced the Applicant to a term of imprisonment for virtually two and a half years for the serious offence of dangerous driving causing death. The sentencing judge viewed the offending as “extremely serious” and made the following additional observations:

   “Your driving for some time prior to the collision was observed by a member of the public who was proceeding in the same direction as you. Your driving conduct in accelerating and slowing down on a main road was bizarre and when your vehicle turned to the right it was in circumstances where a taxi was approaching which could very easily have been seen by you and avoided.”[18]

   [18] See Exhibit 9, G documents, G9, p 57.   

4. The sentencing Judge noted the Applicant’s driving was “dangerous in the extreme”.  Perhaps a matter of additional concern is that while trapped in the vehicle after the collision the Applicant saw fit to menace persons seeking to come to his aid. To be fair to the Applicant, I point out that the sentencing Judge noted the Applicant did not recall his conduct, and subsequently discounted it as a circumstance of aggravation. However, the Judge did note the high blood alcohol reading and the presence of cannabis in his system at the time of the offence.[19]

   [19] See Exhibit 9, G documents, G9, pp 55 – 58.

   Principle: cumulative effect of repeated offending

5. The Applicant has been in this country for just over ten years. He has spent two and a half of those years in actual custody. In the seven and a half years he was in the mainstream Australian community, he came before the courts to be dealt with on no less than five occasions for a total number of fourteen offences. The repeated nature of his offending is therefore self-evident.

6. The cumulative effect of his offending is evident from its escalating seriousness and its tragic culmination in the loss of another human being who also happened to be the Applicant’s best friend. The further effect – thankfully less serious – of the offending is that the driver and passengers of the oncoming taxi were put at extreme risk, as was his then girlfriend who was a passenger in the vehicle driven by the Applicant.

   Conclusion

7. The Applicant’s conduct, for the purposes of this primary consideration is therefore serious, especially the offence for which he was sentenced in August 2014. To my mind, his last offence is very serious. My recollection of the evidence is that there was little or no resistance from the Applicant to a finding of his offending conduct being serious.

8. I have little difficulty in agreeing with the Minister’s delegate in finding that the Applicant’s offending can only be viewed as very serious.

   (b) The risk to the Australian community should the Applicant continue to commit further offences or engage in other serious conduct

9. 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 in paragraph 13.1.2(2). They are:

   a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

   The Nature of Potential Future Harm

10. Criminal or other serious conduct inherently has a negative effect on individuals and the Australian community at large. The essential question for the Tribunal is what level or magnitude of harm would the Applicant cause to individuals in the Australian community if he continued offending? I have no doubt that it would be serious harm.

11. The most recent offence involved the death of the Applicant’s best friend because the Applicant made the poor decision to drive whilst under the influence of alcohol and other illicit substances. The nature of the Applicant’s offending is not regressing but on the contrary, is becoming more serious. In particular, it can be noted from his criminal history that there has been no amelioration of his refusal to respect and submit to lawful authority or to respect the personal (and property) rights of others.

12. There is, to my mind, no other conclusion that can be arrived at upon application of paragraph 13.1.2(2)(a) of the Direction: given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.

    Likelihood of engaging in further criminal or other serious conduct

13. The Applicant contends that has turned a corner and that he wants to come out of detention and re-establish his life. Part of that re-establishment involves the taking of more significant steps towards rehabilitating himself.  He gave evidence at the hearing of his remorse about causing the loss of his best friend. He spoke of wanting to somehow make amends for that catastrophic damage by seeking to play some kind of meaningful role in the upbringing of the deceased’s young son.

14. The Applicant gave evidence of a strained relationship with his father who apparently – and understandably – has been less than impressed with the Applicant’s conduct during his time in this country, culminating as it did, in the awful circumstances of the motor vehicle collision. The Applicant also told the hearing that he wanted to play as much of an active role as possible in the raising and looking after the numerous children under his cousin’s care. The cousin resides in Sydney and the Applicant spoke of possibly relocating to Sydney to be closer to her were he to be released from detention.

15. He provided some details about a number of rehabilitative courses he has undertaken while in immigration detention. Those courses dealt with: management of stressors, understanding and managing anxiety, posttraumatic stress disorder and substance abuse, getting to know you - cognitive therapy skills, combatting life traps, combatting grief, breaking the cycle of addiction, rehab trauma grief and substance abuse, and understanding domestic violence.[20] 

    [20] See attachments to Exhibit 5, Letter from counsellor dated 27 June 2017.

16. The difficulty with the state of that evidence is twofold: (1) the Applicant must surely have realised he had difficulties with both substance abuse and other aspects of his personality as his criminal offending evolved. His surrounding social circumstances had caused him to make a decision to leave his home base of Perth because he knew he was associating with people who were a bad influence on him. He physically relocated to Adelaide in an effort to avoid these kind of influences and obtain meaningful employment.  (2) It is surely undeniable that his substance abuse issues remain unresolved. A year after going into custody in August 2014, the Applicant unfortunately tested positive on two occasions following random drug testing undertaken on 7 September 2015 and 12 November 2015.[21] The Applicant had no real response to this evidence. Suffice it to say that his rehabilitation for substance abuse must, at its highest, be viewed as incomplete and otherwise a work in progress.

    [21] See Exhibit 11, South Australia Correctional Services - Prisoner Conduct information, p 4.

17. The Applicant’s contention that he has undertaken a personal rehabilitation process is largely an insubstantial one, unsupported as it is by an independent treating expert. I accept that he has done the abovementioned courses and obtained certain certificates while in custody and detention. During his evidence, when the Applicant spoke of the time he has spent with the counsellor allocated to him in detention, it would appear that he has developed a measure of insight into the factors behind his offending. He spoke fondly and impressively of his counsellor, that he trusted her to correct his errant ways.

18. While the Applicant’s readiness to submit to courses of rehabilitation is commendable, it must be tempered against his conduct while in prison. While not heinous, it betrays a lack of sufficient development of his propensity to resort to physical solutions to difficult situations. There is evidence of abusive behaviour towards prison staff, non-serious assault behaviour and damage to property during his prison term in South Australia.[22] To my mind, this conduct while in prison only serves to reinforce my view that the factors contributing to his propensity to reoffend remain unresolved.

    [22] See Exhibit 11, specifically - List of Incidents by Offender.

19. I am of the view that both insufficient time and insufficient amounts of therapy have elapsed such as to allow this Applicant to re-enter the community, and for his claims of full or substantial rehabilitation to be properly tested. I do not consider this Applicant to be somehow “beyond help”. The difficulty for him for the purposes of this Application at this juncture is that he has, in my view, a significant way to go in terms of undertaking such therapy and treatment for a decision-maker to be convinced there is little or no likelihood of him engaging in further criminal or other serious conduct.

20. Having regard to (1) the nature of the evolution of the Applicant’s criminal history, (2) its obviously increasing severity, and (3) the absence of any probative evidence of rehabilitation (to the level contemplated in the immediately preceding paragraph), I am of the view that the Applicant would pose a quite serious risk to individuals in the Australian community. Unrestrained behaviour trending towards violence and reckless offending of the nature of his previous offending, could result in members of the Australian community suffering anything from serious physical and psychological injuries to death.

21. I therefore determine that on the totality of the material available to me, primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.

    Primary Consideration B:  The Best Interests of Minor Children in Australia Affected by the Decision

22. The Applicant does not have any biological children of his own. In submissions made on his behalf, the Tribunal was told that the Applicant has cousins who have children of their own (or under their care). Additionally, I note that there have been vague references to the Applicant having a minor brother for whom he was the guardian.[23] However, there was no propounding or elaboration of this evidence in submissions or at the hearing.

    [23] See Exhibit 9, G documents, p 10 (handwritten note), and p 90.

23. While the Applicant has a measure of contact with those children, it cannot be said that he has had overly much interaction with his family since his incarceration. It is not disputed that those children have other adults who are primarily caring for them.[24] The interests of his wider family are given consideration in my discussion about Other Consideration (b) later in these reasons.

    [24] See Direction No. 65, at paragraph 13.2(4)(a) & (e).

24. It is important to re-mention the Applicant’s evidence about apparently wanting to play a role in the upbringing of his deceased friend’s child. He spoke of maintaining a level of telephone contact with that child while in detention. Impressive as that evidence may sound, it remains untested and, for the purposes of this hearing, it is notable that neither the child’s mother nor any member of her family provided a statement to confirm the Applicant’s actual or intended involvement in the life of that child. It follows that the child’s biological mother fulfils the principle parenting role in that child’s life.

25. The frank submission on behalf of the Applicant was that this primary consideration is of neutral or nil weight for the purposes of this decision. I agree with that submission.  

    Primary Consideration C: Expectations of the Australian Community

26. 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 the Applicant’s offending is such that the Australian community would expect that he should not hold a visa.

27. A proper consideration of this Primary Consideration C requires an analysis of an applicant’s offending across a given factual matrix. One must not reach a hasty decision based on populist or prevailing views. Rather, 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.”[25] 

    [25] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.

28. Put another way, would an informed and reasonable member of the Australian community consider that the Applicant no longer presents a risk (to the Australian community) by virtue of him serving an actual term of imprisonment,[26] such that he should now be allowed to remain in this country?  

    [26] Noting that the Applicant refused the opportunity for release on parole and preferred to serve the entire term.

29. The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]:

    “102.    …I considered this paragraph in some detail.  I will not repeat my analysis but adopt its 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 noncitizens 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 the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:

    “... The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

    103.  Although ultimately a matter for judgment, the facts on which that judgment is made must be made 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]

30. Having regard to the principles set out in paragraph 6.3 of the Direction, I am of the view that the Australian community, especially with reference to this Applicant’s gradually escalating criminal history and clearly unresolved substance abuse and behavioural issues:

    (i)would expect this Applicant to obey Australian laws, and respect our important institutions, such as our law enforcement framework while he is in Australia; and

    (ii)would expect him to not cause or threaten harm to law enforcement officers or individuals within the Australian community; and

    (iii)would endorse the Government’s cancellation of his visa, in the circumstances of his criminal history whilst in this country; and

    (iv)would consider that his breach of the trust behind the above expectations, render it appropriate that he does not continue to hold a visa. 

31. At the hearing, the Applicant spoke of being “worth his chance to stay here”. Does he deserve it? This depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[27]

    [27] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.

32. Paragraph 6.3(5) of the Direction tells a decision maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been participating in, and contributing to, the Australian community only for a short period of time. For the relatively short time he has been in Australia (10-11 years) this Applicant has been precluded from making any meaningful contribution to the Australian community due to (1) the gradually escalating seriousness of his offending which has seen him spend almost a third of his time here in actual custody, (2) his unresolved issues with illicit substances, alcohol, and behavioural issues, and (3) an absence of a duly completed course of therapy/rehabilitation.[28] Having regard to these factors, one can appreciate the Australian community’s lowered tolerance of this Applicant’s serious offending and his lack of any meaningful participation in and contribution to the Australian community.

    [28] To repeat, I acknowledge the Applicant’s completion of certain Certificates while in Immigration Detention.

33. One takes the clear impression from his evidence that even the Applicant himself acknowledges his relatively modest contribution to the Australian community thus far. The further impression from his evidence is that the predominant theme of his behaviour in this country thus far has been one of miscreant youth rather than responsible adult contributor.

34. I have gone through the evidence in an attempt to find a genuine and convincing history of employment undertaken by the Applicant. It is difficult to do so. He speaks of completing his schooling and working part-time in Western Australia upon his arrival here. He says that after completing high school he enrolled in a TAFE course in Western Australia and continued working part-time.[29] He was living alone at that time and “started having problems adapting to adulthood”. He records that 2012 was a troubling and traumatic year for him resulting in his move to Adelaide to “get away from everybody to start a fresh new life in 2012”.[30] 

    [29] See Exhibit 2, Applicant’s Statutory Declaration, at [6].

    [30] See Exhibit 9, PG 13, pp 77-78.

35. While in Adelaide there was an attempt “… to get a job in the mines, but things didn’t happen as expected”.[31] There is scant reference to the Applicant’s family “organising employment for him” were he to be returned to the Australian community.[32] The nature of such work is not particularised and no prospective employer gave evidence in this regard. There is further scant evidence about the Applicant working as a DJ at parties but this evidence was put in terms of explaining the circumstances leading up to the tragic motor vehicle collision. There was no evidence of a regular stream of such work being undertaken by the Applicant while in Adelaide or, prior to that, Perth.  

    [31] Ibid, p 78.

    [32] See Exhibit 1, Applicant’s SFIC, at [43] and [50].

1. There are several written references in the exhibited material to which I have had regard.[33] My initial observation is that these references were tendered as part of the delegate’s consideration of this matter, not the hearing conducted before me. Be that as it may, one can glean from these references themes of decency and friendliness in the demeanour of the Applicant. Each of the referees seem to know of the Applicant’s record of offending, including the resulting custodial time imposed on him. The referees are primarily from Liberian community groups within Australia, and more specifically, from members of his specific tribe in Liberia – the Krahn. These references dwell on the Applicant’s relative youth and his unrealised potential.

   [33] See Exhibit 9, G documents, G15-G19, pp 83 – 90.

2. At the hearing two witnesses were originally scheduled to appear by way of telephone. The first witness was the Applicant’s cousin (based in Sydney). The second was another cousin who resides in Queensland. The second witness was unavailable to give oral evidence, but I have had regard to her written reference which acknowledges the Applicant’s offending and says that he will face significant disadvantage and risk were he compelled to return to Liberia. She concludes by stating her strong belief that “… it is in the best interests of [the Applicant], me, [the Applicant’s] family and the community in which he is a part of that he stay in Australia.”[34]

   [34] See Exhibit 3, p 2.

3. The first female witness (his Sydney cousin), gave her evidence by way of telephone at the hearing. She told the hearing of her arrival in Australia, with the Applicant, from Ghana. She mentioned that the Applicant had moved to Adelaide for work and was successful in getting some work in the fruit picking and cleaning industries. She was aware of the Applicant’s history of offending. She told the hearing of the Applicant’s remorse and shattered feelings about being the cause of the loss of his best friend. She spoke of his intention to try and make amends with the deceased’s family by playing a role in the upbringing of the deceased’s child. She told the hearing that she was based in Sydney and either had or was responsible for the care and responsibility of a number of children. Her evidence was that the Applicant was seriously considering relocating to Sydney were he to be released from detention, to assist her in looking after these children. There was nothing in her evidence about either actual or prospective employment for the Applicant in Sydney. She spoke of his good character and compliant disposition and that in essence, his best years were ahead of him.[35]

   [35] See Exhibit 4 and oral evidence at hearing.

4. I do not consider that the Australian community would be prepared to give this Applicant “a second chance”, in light of my findings as to:

   (i)the nature of the harm presented to the Australian community were this Applicant to re-offend;

   (ii)his likelihood of re-offending; and

   (iii)the comments of the learned  Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.

5. Having regard to this primary consideration C, I find that this consideration weighs heavily in favour of non-revocation.  

   Other Considerations

6. It is necessary to look at the other considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I will address each in turn.

7. With reference to other consideration (a) – International Non-refoulement obligations – the Applicant claims he would fear danger if he was sent back to Liberia (his country of citizenship) should his visa not be reinstated. Although not much detail about this fear was provided by the Applicant in written submissions, it was nevertheless conceded by the Respondent that the Applicant’s apprehension about such a return may potentially give rise to non-refoulement obligations.[36]

   [36] See Exhibit 8, Respondent’s SFIC at [39].

8. The Applicant was born in 1990, which was the year that the civil war in Liberia commenced. With the assistance of the United Nations Refugee Agency he and his family managed to escape Liberia. They were originally housed in refugee camps in Côte d’Ivoire (Ivory Coast) but after trouble ensued there, they fled to Ghana. The Applicant grew up in these refugee camps until he and his family moved to Australia in January 2007. At the hearing the Applicant gave quite graphic evidence about the loss of his mother and other members of his family. He spoke of quite brutal violence and atrocities as they tried to flee from Liberia and then Ivory Coast. Eventually, one of his aunts (who had been accepted into Australia as a refugee) managed to sponsor the Applicant and his remaining family to come to Australia on a Global Special Humanitarian visa.

9. Regard should be had to paragraph 14.1(4) of the Direction which is to the effect that if the Applicant is able to make a valid application for another kind of visa, should his current visa remain cancelled, then it is unnecessary to determine whether non-refoulement obligations are owed. The Applicant currently possesses a Class XB Subclass 202 Global Special Humanitarian visa. Section 501E(2) of the Act provides that someone whose visa has been cancelled under s 501 of the Act may still make a claim for a protection visa. These two visas are clearly different. Consequently, the Applicant will be at liberty to make a valid claim for ‘a visa’ should the cancellation of his current visa not be revoked. I therefore consider that paragraph 14.1(4) of the Direction applies.

10. Paragraph 14.1(4) of the Direction is tempered by the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96. There is a resulting concession from the Respondent that the Tribunal is required to turn its mind to the Applicant’s claims regarding the risk of harm were he to be returned to Liberia and to give those claims such weight as the Tribunal considers appropriate.[37]

    [37] See Exhibit 8, Respondent’s SFIC, at [41].

11. As against that, the Respondent contended that the weight to be placed on the Applicant’s claim regarding the risk of harm, should be moderated for three reasons:

    (1)  It is not necessary to conduct an extensive assessment of the Applicant’s claims of a fear of harm were he to be returned to Liberia.[38] The Respondent, validly to my mind, contends that the Tribunal’s weighing exercise must be influenced by the Applicant’s right to make an application for a protection visa and to have his claims assessed and tested under the protection visa regime.

    (2)  Apart from the Applicant’s oral evidence at the hearing (to which there is minor reference in his written material), little detail or corroborative evidence was offered in support of his apprehended fears of either individual or tribe-based persecution, or any inability to access state protection from such harm.

    (3)  Notwithstanding the weight the Tribunal should allocate to these non-refoulement obligations, they should be weighed carefully against the seriousness of the Applicant’s criminal offending and the expectations of the Australian community.

    [38] See Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28].

12. The Tribunal heard evidence of a quite unstable political climate currently prevailing in Liberia. It was said that instability in Liberia usually follows uncertainty or non-acceptance of a given electoral result. In addition to speaking about persecution of members of his family, the Applicant also mentioned that he would be at risk of harm in Liberia because of his tribe and more specifically his grandfather’s connections to a previous regime. According to the Applicant, his grandfather had acted as the attendant doctor to a previous leader, Samuel Doe, who ruled Liberia from 1980-1990. According to the Applicant, either the present regime or a future regime could take umbrage at this connection and as a consequence, cause trouble and strife for the Applicant were he returned to Liberia and this become known.

13. There was further evidence about tribal persecution experienced by the tribe to which he belonged in Liberia – the Krahn. As I understood the evidence, President Doe was a member of the Krahn tribe. Evidence was lead about possible danger for a member of the Krahn tribe in present day Liberia. The evidence was to the effect that although there are no major cultural distinctions between tribes, a person’s surname might be an indication of the ethnic group to which an individual belongs.[39] This evidence involved a reference to ethnic conflict between the Krahn and other tribes within Liberia.

    [39] See Exhibit 10, Department of Immigration and Border Protection – Standard Q & A Report – Liberia & the Krahn ethnic group, p 2.

14. The Respondent conceded that this other consideration may weigh in favour of the Applicant. For the purposes of this decision and after hearing the Applicant’s evidence, I am of the view that this other consideration does weigh in his favour. However, given the option that he can still make claim for a protection visa, I assign only a moderate weighting to it.

15. With reference to other consideration (b) – Strength, nature and duration of ties – the Applicant has been in Australia on a continuous basis since January 2007. There is a prompt acknowledgement by the Respondent that the Applicant does have ties to Australia including his family, he has undertaken employment here and that he has engaged with the Australian community.[40]

    [40] See Exhibit 8, Respondent’s SFIC, at [46].

16. In the Applicant’s personal circumstances form he says he has the following relatives who reside in Australia: a father, a sister, a brother, about ten uncles and aunts, 26 nieces and nephews, and six cousins.[41] Apart from the two cousins mentioned above whose evidence the Applicant lead at the hearing, no other member of his family provided any letters of support or gave oral evidence in his support. Although no such conclusion can be positively drawn, one is left wondering about the level of alienation of the Applicant from his immediate family consequent upon his regrettable conduct resulting in the death of his best friend. One would have expected evidence from his immediate family about the potential effect of this decision. In circumstances where none has been forthcoming, I cannot make a proper analysis about the effect non-revocation would have on them.[42] 

    [41] See Exhibit 9, G documents, G12, p 72.

    [42] See Direction No. 65 at paragraph 14.2(1)(b).

17. I agree with the Respondent’s contention: this other consideration should be afforded only limited or moderate weight for the purposes of this decision.

18. With reference to other consideration (c) – Impact on Australian business interests – it was contended by the Applicant that he “currently has employment that will be organised by his family” and that his removal would “affect commercial interests of prospective employers”.[43] I agree with the Respondent’s contention as to the speculative nature of this submission. The Tribunal did not hear or see any evidence detailing the specifics of that employment or the potential impact on an Australian business, were the Applicant to be removed. In the final analysis, there does not appear to be an employment link that would significantly compromise the delivery of a major project or important service in Australia, so as to fall within the ambit of paragraph 14.3(1) of the Direction. This particular other consideration is of no weight to my consideration.

    [43] See Exhibit 1, Applicant’s SFIC at [43] and [50].

19. With reference to other consideration (d) – Impact on victims – there is no specific evidence about the impact on any victims of the Applicant’s offending. However, it should be borne in mind that there are indeed victims of this Applicant. Most notably, his friend who tragically died in the fatal motor vehicle collision. I am mindful that the sentencing judge had regard to a “victim impact statement” when sentencing the Applicant for the offence of dangerous driving causing death. The following additional comments appear in the sentencing remarks of the Honorable Judge Cuthbertson:

    “Once again, this court has to endure the harrowing anguish of loved ones left behind, in this case the mother and the stepfather of the deceased, giving graphic details as to how the loss of their son, caused by you, has affected them.

    Your driving was so profoundly bad on that morning that the consequence was the death of a 23-year-old man whose life has been unfairly cut short.

    It is trite to say that one of the reasons Causing Death by Dangerous Driving is regarded so seriously by the law is that the consequences are, for those left behind, irreversible and enduring.”[44]   

    [44] See Exhibit 9, G documents, PG 9, p 56.

20. Having regard to the totality of the evidence, I am of the view that this factor is of neutral weight for the purposes of this decision.

21. With reference to other consideration (e) – Extent of impediments if removed – the Direction requires a decision maker to take into account the extent of impediments the Applicant may face if removed from Australia to Liberia, in establishing himself and maintaining basic living standards. The Tribunal must take into account the Applicant’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in Liberia.[45] 

    [45] See Direction No 65, at paragraph 14.5(1).

22. The Respondent helpfully and promptly accepts that this consideration weighs in favour of revocation. This concession derives from the Applicant’s age, traumatic early life in Liberia and refugee camps in that region. The Respondent acknowledges that the Applicant has no knowledge of Liberia, no family support there, that he cannot speak the language of his tribe, that he is unfamiliar with the culture, that he may be ostracised by the community and that he may have difficulty seeking appropriate medical treatment.[46]

    [46] See Exhibit 8, Respondent’s SFIC at [51], and Exhibit 9, G13, p 77; and Exhibit 2, Applicant’s Statutory Declaration at [24]. See also Exhibit 10.

23. For the purpose of this decision I afford a moderate weighting to this other consideration, in favour of revoking the cancellation.

    CONCLUSION

24. There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then 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 Direction No. 65.

25. Primary Considerations A and C weigh heavily in favour of non-revocation. Primary Consideration B is of no weight to my consideration.

26. To the extent that any of the Other Considerations weigh moderately in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation.

27. I have had regard to the principle set out in paragraph 6.3(4) of the Direction, which says that: “In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa”.

28. Having regard to: (1) the nature of the evolution of the Applicant’s criminal history, (2) its obviously increasing severity, (3) the absence of any probative evidence of rehabilitation, and (4) my view that the Applicant would pose a quite serious risk to individuals in the Australian community, I cannot find that the other considerations that moderately weigh in favour of revocation could possibly outweigh primary considerations A and C which weigh heavily in favour of non-revocation.

29. Therefore, I am not satisfied that there is another reason why the discretion to revoke the mandatory visa cancellation should be exercised.

    DECISION

30. For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...........................[SGD].....................................

Associate

Dated: 7 December 2017

Date(s) of hearing:	30 November 2017* *The Tribunal notes that the hearing in this matter was originally listed on 28 November 2017 but due to video connectivity issues did not proceed and was adjourned until 30 November 2017.
Solicitor for the Applicant:	T. Mwilambwe, Go to Court Lawyers
Solicitor for the Respondent:	L. Helsdon, Sparke Helmore Lawyers