BPVS and Minister for Home Affairs (Migration)
[2019] AATA 4470
•4 November 2019
BPVS and Minister for Home Affairs (Migration) [2019] AATA 4470 (4 November 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5089
Re:BPVS
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:4 November 2019
Place:Sydney
The Tribunal decides that:
1.The reviewable decision, being the decision of the respondent dated 31 August 2018, to refuse the applicant a Protection (Class XA) visa, is to be set aside.
2.The matter will be remitted to the respondent with a direction that the discretion in s 501(1) of the Migration Act 1958 (Cth) is to be exercised in favour of the applicant.
...............................[sgd]….........................
Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – refusal to grant Protection (Class XA) visa – where applicant owed protection obligations – offences due to drugs – where applicant convicted of offence once – risk of re-offending if abstinent from drug use – where applicant does not pass character test – whether discretion should be exercised – Direction No. 79 – primary considerations and other considerations – nature and offence of past criminal conduct – whether there is a risk to the Australian community – where applicant is owed non-foulement obligations – where legal consequence of non-refoulement obligations result in possible prolonged detention – contrary to dictates of good government – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth) ss 36, 197C, 501
CASES
BBFD and Minister for Home Affairs [2019] AATA 3907
BHKM and Minister for Immigration and Border Protection [2018] AATA 3
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; 253 FCR 576
FTYC and Minister for Immigration and Border Protection [2018] AATA 20
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
SYLN and Minister for Home Affairs [2018] AATA 4408; (2018) 163 ALD 186Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 224
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
4 November 2019
In this case, the Federal Court quashed an earlier decision of this Tribunal and remitted the proceedings to the Tribunal to determine the applicant’s application for review according to law. These are my reasons for decision of the remitted application for review.
The applicant applied for a review of a decision of the Minister’s delegate that refused to grant the applicant a Protection (Class XA) visa.
It is agreed between the parties that, within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), the applicant is a person in respect of whom the Minister is satisfied that protection obligations are owed, because, if he were returned to India, there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of such return.
The same relevant facts were examined by the delegate who found that non-refoulement obligations were owed by Australia in respect of the applicant under its international treaties.
BACKGROUND
The applicant came to Australia in 2006 and studied business, tourism and commercial cooking at a Sydney college. He was in a same-sex relationship until 2013, and committed no offence. In 2008, he returned to India and went through a marriage ceremony, which was organised by his family who were Sikhs and did not approve of homosexuality. He returned to Australia about a month after the marriage without his wife.
The applicant met another person in 2013 and established a relationship with him. Their relationship was turbulent. The new partner introduced him to drugs, and the applicant contracted HIV. The applicant said that his partner hit him, and the police were called, but the applicant decided not to press charges. The relationship was troubled, and was described by the applicant as on and off, until it was terminated in 2015.
The applicant was charged with a number of criminal offences. The events covered by the first six charges extended from March 2015 until March 2016. He was first convicted in May 2017. He was never sentenced to a term of imprisonment. A table of the relevant charges and the outcome of each charge is as follows:
Date
Offence
Outcome
August 2015
Destroy or Damage Property
Plea of guilty – Sentenced under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction recorded. Sentenced to be of good behaviour for 2 years and to attend the Albion Centre and follow recommendations for treatment and counselling.
August 2015
Wield knife in a public place
Plea of guilty – Sentenced under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction recorded. Sentenced to be of good behaviour for 2 years and to attend the Albion Centre and follow recommendations for treatment and counselling.
August 2015
Contravene prohibition/ restriction in AVO (domestic)
Plea of guilty – Sentenced under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction recorded. Sentenced to be of good behaviour for 2 years.
September 2015
Possess prohibited drug
Sentenced under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction recorded. Sentenced to be of good behaviour for 6 months and to attend the Albion Centre and follow recommendations for treatment and counselling.
September 2015
Never licensed person drive vehicle on road –first offence
Sentenced under s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction recorded. Sentenced to be of good behaviour for 6 months and to attend the Albion Centre and follow recommendations for treatment and counselling.
August 2016
Common assault x 3
Charges dismissed under section 32 of the Mental Health (Forensic Provisions) Act 1990 on the condition that the Applicant commit to a treatment plan.
May 2017
Common assault x 2
Initially application made under section 32 of the Mental Health (Forensic Provisions) Act 1990, application refused on basis of it not being in the public interest.
Plea of guilty – Sentenced under section 9 of the Crimes (Sentencing Procedure) Act 1999. Convicted and placed on a good behaviour bond for 12 months with a direction that he continue to undergo treatment and counselling with Ms Hennessy or other appropriate health professional.
In 2016, he was admitted to a hospital for treatment for a psychiatric condition. He was hallucinating and splashed urine on the nurses working there, for which charges of common assault were brought against him. Those were the charges dealt with in the NSW District Court in August 2016.
The applicant said that he was then clean for a year. In 2017, the applicant met someone else who introduced him to drugs again and he relapsed. There was a dispute with his flatmates, which led to the charges of common assault dealt with in the NSW District Court in May 2017.
In the applicant’s evidence, he said that his drug-taking continued after the end of the relationship which began in 2013. He said that in earlier years, he tried to rehabilitate himself, would be clean for a few weeks, and then relapse. He appears to have been successful in remaining abstinent only after his last offence, for which he was dealt with in May 2017.
The applicant did not contest the various charges that he faced. The earlier offences related to clashes that he had with the person who became his partner in 2013. The courts dealt with him leniently, requiring him to have counselling, educational development and drug and alcohol rehabilitation, to attend doctors regularly and consultations at the Albion Centre. In April 2017, he was required to continue to undergo treatment and counselling with Ms Hennessy or other appropriate health professional. The absence of a custodial sentence appears to reflect a view by the various courts that he was not a danger to the community, despite what had become a substantial criminal record by 2017 if not earlier.
At the time the applicant was charged in May 2017, he was working at a nursing home as a nurse. He told his boss that he had relapsed. His boss said that he had to take four weeks off and go into rehabilitation. He said that it was at this time that he decided definitively never to relapse again. He went to St Vincent’s Hospital for a stimulant treatment program. He went back to work at the nursing home and remained there until, in August 2018, he was taken into immigration detention.
The applicant has a scholarship to study nursing, which he wants to take up if he is released from detention. At this time, he has certificates III and IV as an assistant nurse. He said he loved his job at the nursing home and wishes to return there.
The applicant takes antiviral therapy and his HIV is under control. He said he is now fully adjusted and remains committed to stay drug free. He used to meet Ms Hennessy once a week for therapy and counselling until he was taken into detention. He had been seeing her for three years until that time.
While the applicant has been in detention, he has seen people leave detention and then come back after they commit further crimes. He said that their example has made him determined not to make the same mistake and that he will never offend again.
Mr Eskerie, for the respondent, cross-examined the applicant in the earlier hearing. Much of that cross-examination went to matters of credit, and seems to me to have established that some aspects of the applicant’s evidence may not be accurate as to matters such as how long he was drug free. Mr Eskerie contrasted some evidence which the applicant gave about the offences with facts which, through the applicant’s solicitor, he admitted before the courts which dealt with him or things included in his psychologist’s report. In doing so, Mr Eskerie suggested that the applicant had not been accurate or truthful at various times. He elicited from the applicant that his rehabilitation was ongoing.
I also heard from a relative of a patient at the nursing home where the applicant most recently worked. She spoke very warmly about the applicant and the sympathetic treatment the applicant gave to her relative. He will apparently still have employment there if he is released from detention.
I heard brief evidence from the applicant himself on 23 August this year. He was called by his counsel, Mr Paul Webb QC, and cross-examined by Ms Donald for the respondent. He told me that his psychologist, Ms Hennessy, has kept in touch with him every week or every second week by telephone while he had been in detention, to check on his progress. He said he would certainly go back into her care if he were released from detention, which will clearly be in his best interests. Ms Hennessy had been working with him on techniques to avoid regression from his drug-free status, which now has lasted approximately two years, one year of which took place while he was in detention. Nothing adverse has been drawn to my attention about the applicant’s time in detention, whether relating to drug use or to his general behaviour.
In a report, Ms Hennessy traced the applicant’s history over the three years she had been treating him and was optimistic about his rehabilitation. She expressed the view that if he remains abstinent from drug use he will not be at risk of committing further criminal offences.
CHARACTER TEST
The respondent submitted that, as found by the delegate, the applicant failed the character test specified in s 501(6)(d)(i) of the Act, on the ground that if the applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct.
I have recently discussed that provision in BBFD and Minister for Home Affairs [2019] AATA 3907 (‘BBFD’) especially at [22]–[25], where I referred to a discussion of the provision by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 224. Her Honour observed that each of the criteria specified in s 501(6) are directed to the protection of the Australian community.
The first question to be asked in the application of s 501 of the Act is whether the applicant passes the character test.
The delegate decided that matter by considering s 501(6)(d)(i), and asked himself or herself whether, in the event that the applicant were allowed to remain in Australia, there is a risk that the applicant would engage in criminal conduct in Australia.
Asking myself the same question about the applicant’s future, I conclude that the question ought to be answered in the affirmative. That is because, while the applicant has turned a corner, and genuinely intends not to offend again, there is one circumstance in which he might nevertheless do so. That is if, because he becomes stressed or for whatever reason, he takes drugs again, his history suggests that he might have a psychotic episode and offend again. He attributes his past offending to drug use, at one time heavy drug use, and more recently much lighter drug use. He will face the vicissitudes of life if released into the community. While there is good reason to think that he will not relapse because of stress, and especially with the help, he is likely to continue to receive from Ms Hennessy, there is a risk, probably a low risk, that he will relapse. If he relapses, offending is the likely consequence.
His state of mind is that he has good insight into the drug problem, and has seen the consequence of others leaving detention and offending again. He does not want to be such a person. He will have the beneficial help of Ms Hennessy and a job he loves, together with the possibility of enrolment in a degree of a Bachelor of Nursing, with a scholarship and a job offer. All of that justifies an optimistic view concerning his future. However, the risk of a relapse is still present at this time, and that risk is recognised by Ms Hennessy, who has stated that if he remains drug-free, he will not be at risk of repeat offending.
Therefore I find that he does not pass the character test specified in s 501(6)(d)(i).
I invited debate about whether it is open to me to entertain a submission made by the Minister that the applicant does not pass the character test on a different criterion mentioned in s 501(6), which was not considered by the delegate. I recently decided in BBFD that such a course is not open if the delegate did not decide that question. Since I have concluded that the applicant does not pass the character test in the respect to which the delegate did decide, it is not necessary for me to consider in this case the question whether the applicant failed the character test in any other respect, even if I thought that it was within power to do so.
DISCRETIONARY CONSIDERATIONS
The effect of the finding that the applicant fails the character test is that I must consider the discretionary question arising under s 501(1) of the Act, whether the visa ought to be refused.
A convenient starting point is the terms of Direction No. 79, which now binds decision-makers under s 501 of the Act considering the refusal of a visa. Its terms are well known and need not be set out here. Like previous directions, it sets out the objectives of the direction and provides general guidance and principles, establishing a framework within which decision-makers should approach their task. Section 2 discusses the exercise of the discretion.
As to the refusal of a visa, Part B of the Direction sets out primary and other considerations, the latter in a non-exhaustive way.
Primary Considerations
The primary considerations begin with the protection of the Australian community. Here, decision makers are to consider the nature and seriousness of any past criminal conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I have already listed the criminal conduct in which the applicant engaged. The way in which he was dealt with by each of the courts suggests that the courts took the view that it was not necessary to cause the applicant to be incarcerated, no doubt because the offending was at the lower range of seriousness, and because he did not pose a danger to the community. Rather, the courts were concerned to provide for the applicant’s treatment.
His drug taking seems to have led to psychotic episodes that led to the offending, speaking generally. The drug taking diminished in frequency over time. His employment seems to have been very beneficial. His treatment by Ms Hennessy has also been beneficial and she is clearly committed to supporting the applicant. While I have found that there is a risk that he will relapse, especially if he encounters significant stress, his intention not to do so is genuine, and there is every reason to be optimistic about his future. He has never actually injured others during his psychotic episodes and he has not demonstrated a propensity to violence. On the contrary, he has impressed the relatives of the patients at the nursing home with his kindness and good nature.
The applicant has no children in Australia, so that the best interests of such children are not a mandatory consideration. He apparently has a child in India.
Following some different views expressed at first instance in the Federal Court, the Full Federal Court decided by majority in FYBR v Minister for Home Affairs [2019] FCAFC 185 that the “expectations of the Australian community” factor was one which in most cases would, of itself, favour the refusal or cancellation of a visa of a person who failed the character test where the non-citizen has breached, or where there is an unacceptable risk that they will breach the law. In applying the consideration, it is not for the delegate or for the Tribunal to assess for itself what community expectations are, either in general or in the particular case. However, it is one consideration among other mandatory considerations, which will be put into the balance to decide how the discretion should be exercised in the particular case. As will appear, in my opinion, the consideration stemming from the non-refoulement obligations owed in respect of the applicant outweigh any other mandatory consideration in this case, including the expectations of the Australian community.
Other Considerations
The first of the expressly included other considerations is international non-refoulement obligations.
Those obligations arise in this matter. If the applicant were returned to India, this country would be in breach of its international obligations. The effect of existing authority in the Federal Court is that there would be a duty to return the applicant to India if the visa is refused: see s 197C of the Act and the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576 (‘DMH16’).
The legal consequences of the exercise of a discretion are matters to which a decision-maker under s 501 should have regard. If those consequences contravene high government policy, then the dictates of good government would make a decision-maker very slow to do so, to say the least.
I invited submissions from the parties arising from the decisions of this Tribunal, in which I participated, of BHKM and Minister for Immigration and Border Protection [2018] AATA 3, FTYC and Minister for Immigration and Border Protection [2018] AATA 20 and SYLN and Minister for Home Affairs [2018] AATA 4408; (2018) 163 ALD 186.
At paragraphs [4]–[13] of the Minister’s submissions, the following submissions were made:
4The Tribunal is required to consider the legal consequences of a decision to refuse to grant the applicant a protection visa (NBMZ v Minister for Immigration and Border Protection at [6]-[10] and [18] per Allsop CJ and Katzmann J; [164]-[167] per Buchanan J. See also Cotterill v Minister for Immigration and Border Protection at [107], [123]-[126]).
5Accepting the authority of DMH16 v Minister for Immigration and Border Protection, as the applicant has been found to engage Australia’s protection obligations, if the Tribunal exercises its discretion to refuse to grant the applicant a protection visa, the legal consequence is that the applicant would become liable to removal from Australia under s.198 of the Act as soon as reasonably practicable. However, the Minister submits that the practical consequence of a decision to refuse to grant the applicant a protection visa is not removal to India – it could be removal to a third country of course, in circumstances where refoulement would be in breach of Australia’s international treaty obligations and no decision has yet been made as to how those obligations can be complied with.
6In BHKM, FTYC and SYLN, the Tribunal was informed that government policy is that even if a protection visa is refused or cancelled and protection obligations are owed, a non-citizen will not be removed in breach of Australia’s international treaty obligations (BHKM at [52], SYLN at [70]). That remains government policy to date.
7As at the date of these further submissions, no decision has been made by the Minister on whether or not he will exercise his non-compellable powers to grant the applicant a visa under s.195A or make a residence determination under Subdiv B of Div 7 of Part 2 of the Act. Nor has any decision been made as to whether the applicant can be resettled in a third country. It is, with respect, appropriate for the Minister and his department to defer consideration of these matters until after the outcome of the review process relating to the refusal of the applicant’s visa. If the delegate’s decision is affirmed, it is open to the Minister to consider the alternative management options available to him in relation to the applicant, consistently with the policy that Australia will not breach its non-refoulement obligations.
8To the extent that the applicant contends that the Minister would not exercise his non-compellable powers under ss.195A and 197AB, there is nothing in the Act that supports such a contention. Any assertion as to what the Minister might decide is no more than pure speculation. While it is true that the Minister continues to defend the delegate’s decision to refuse to grant the applicant a permanent protection visa, he is not precluded, either as a matter of law or logic, from making a subsequent decision to grant the applicant a bridging visa under s.195A or make a residence determination under s.197AB to allow the applicant to remain in Australia on such basis as the Minister sees fit.
9This position is consistent with the observations of Griffiths J in DOB18 v Minister for Home Affairs at [31] about the need to have regard to the particular stages of decision making with which the Minister is engaged, and that it was open to the Minister to leave for later decision the way in which to deal with non-refoulement. On appeal, Robertson J in DOB18 v Minister for Home Affairs at [185] noted the distinction between considering the risk of harm on the one hand, and considering whether or not, if the appellant made a protection visa application, non-refoulement obligations would then be fully considered. His Honour did not consider this distinction “to be accurately referred to as a distinction between the different stages of decision-making, if by that expression it is intended to mean that the claims of harm as found by the Minister in the present case need not be considered in making a decision under s 501BA(2)”.
10However, Griffiths J’s observations remain apt in the present case. That is, in giving consideration to the risk of harm to the applicant if returned to India and the legal consequences of a decision to refuse to grant him a protection visa, the Tribunal should have regard to the different stages of decision making. Further, it is respectfully submitted that the Tribunal should refrain from any inference as to the outcome of those subsequent stages of decision making. However, the Tribunal can and should have regard to the facts that: (a) the Minister accepts that the applicant is owed non-refoulement obligations, (b) the Government’s stated policy is that it will not remove non-citizens where to do so would breach Australia’s non-refoulement obligations, (c) there is no evidence that the Minister has removed non-citizens in breach of those obligations in the past, and (d) the Minister has available to him a number of alternative management options to give effect to the said policy in respect of the applicant.
11To the extent that the possibility of future consideration of the Minister’s non-compellable powers was rejected in FRH18 v Minister for Home Affairs, that case involved a decision made by the Minister personally in circumstances where by virtue of the Minister’s findings on what was in the national interest, Rares J held that any future “consideration” of the exercise of the Minister’s personal non-compellable powers to grant another visa or make a residence determination would necessarily result in a negative decision (at [58]).
12Accordingly, contrary to the Tribunal’s findings in SYLN at [74], the practical consequence of a decision to refuse to grant the applicant a protection visa is not indefinite detention. The applicant will be detained for such time until (a) a decision is made by the Minister whether or not to exercise his non-compellable powers under ss.195A and 197AB; (b) the applicant is resettled in a third country; or (c) there is no longer a real chance of serious or significant harm such that any return to India in the future is free from such risk. It is accepted that it is probable that the applicant would remain in immigration detention until one of these possibilities eventuates.
13The Minister submits that the Tribunal must take into account these possibilities as comprising the range of potential legal and practical consequences of its decision. The Minister further submits that consideration of the possibilities that face the applicant if the visa application is refused does not outweigh the protection of the Australian community and the expectations of the Australian community. The applicant has shown himself to be a person who is willing to engage in conduct that is inconsistent with Australian community standards and who poses a threat to the safety of members of the Australian community. (citations omitted)
I comment on those submissions as follows:
(a)As to the Minister’s submission at paragraph [4], it is to be noted that at paragraph [10] of the reasons in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (‘NBMZ’), Allsop CJ and Katzmann J regarded indefinite detention as the legal consequence of Australia’s non-refoulement obligations and the terms of the Act. In the same case Buchanan J said at paragraph [168] that the Minister’s decision under consideration there did not reveal an appreciation of the fact that if, despite the obligation that he be removed as soon as practicable, the applicant did remain in Australia, it could only be in circumstances that he was liable to detention. His Honour added: “Indefinite difficulty of removal meant indefinite detention”.
(b)In NBMZ, the Full Court declined to infer, without evidence from the Minister, that the Minister might exercise a non-compellable power to grant another visa. At paragraph [4] of their reasons, Allsop CJ and Katzmann J said:
It is true, too, that the Minister may grant a detainee a visa in the circumstances described in s 195A of the Act. But, as Buchanan J points out in his reasons, there was no reference to the possibility or the willingness of the Minister to contemplate a visa under s 195A in either the briefing paper to him, or in his reasons. We agree with Buchanan J that the applicant is entitled to have this application determined on the hypothesis that he will be indefinitely detained and that any question of a visa under s 195A is, at best, a matter of speculation. There is no foundation for any assumption that the Minister will grant any relevant visa.
(c)No evidence has been put before the Tribunal that the Minister intends to grant the applicant another visa, or to consider doing so. What such a visa might be is completely at large. It may be that a protection visa would be much more suitable to the case of the applicant. I do not think it is a reasonable exercise of discretion for a decision-maker to refuse to grant a visa, because if that occurs, the Minister might or might not exercise discretion to grant another visa.
(d)If the Minister favours the applicant remaining in Australia under some different visa, it would be a simple matter for him to put on evidence to that effect. Instead, the Minister has chosen to oppose the present application without putting on evidence.
(e)Since NBMZ was decided, s 197C was introduced into the Act. Its mandatory terms suggest, in accordance with DMH16, that removal to India will occur if the visa is refused. That produces a conundrum. Any retention of the applicant in accordance with the firm policy of non-refoulement would be illegal. In NBMZ, the court noted the same policy, as the Tribunal has been told of by counsel for the Minister. It is a policy of long standing, and the Minister’s submissions at paragraph [6] accept that it remains government policy “to date”. The policy in question admits of no exceptions.
(f)There is nothing before the Tribunal to suggest that any alternative country will take the applicant, and if there were, questions would arise about the effect of the mandatory “other consideration” of the extent of impediments if the applicant were removed.
(g)The possibilities envisaged in paragraph [12] of the Minister’s submissions, involve prolonged, perhaps very prolonged detention, and are similar to indefinite detention. Possibility (c) might involve the applicant remaining in detention for the rest of his life. The Tribunal operates as part of the continuum of executive action and is guided by the dictates of good government. It is not consistent with the dictates of good government for the applicant, who has been dealt with (leniently) by the courts, to be now exposed, as a result of executive action, to such prolonged detention. Such a result of prolonged, perhaps very prolonged detention could only be supportable as the result of court proceedings and the exercise of judicial power. It is not open to the Executive branch. Quite apart from that matter, to expose the applicant to such an uncertain future would not be consistent with the dictates of good government. That constitutes a very powerful reason to set aside the reviewable decision, and discretion ought to be exercised accordingly.
None of the “other considerations” mentioned, besides clause 12.1, in Direction No. 79 applies in this case, because, as a result of what has already been written, the applicant will not be removed.
Accordingly, the reviewable decision is to be set aside and the matter be remitted to the respondent with the direction that the discretion in s 501(1) of the Act is to be exercised in favour of the applicant.
I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
...................................[sgd].....................................
Associate
Dated: 4 November 2019
Date(s) of hearing: 23 August 2019 Date final submissions received: 18 October 2019 Counsel for the Applicant: Mr P Webb QC Solicitors for the Applicant: HIV/AIDS Legal Centre Solicitors for the Respondent: Sparke Helmore Lawyers
0
9
0