BQGB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1049
•4 May 2022
BQGB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1049 (4 May 2022)
Division:GENERAL DIVISION
File Number(s): 2018/3271
Re:BQGB
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment AOM QC
Date:4 May 2022
Place:Sydney
The Tribunal sets aside the reviewable decision, and in substitution decides that the mandatory cancellation of the Applicant’s Subclass 202 - Global Special Humanitarian Visa be revoked. .
............................[sgd]............................................
Deputy President B W Rayment AOM QC
CATCHWORDS
MIGRATION - mandatory cancellation of visa – Subclass 202 – Global Special Humanitarian visa - Applicant does not pass the character test – is there another reason to revoke the cancellation – consideration of Ministerial Direction No. 90 - protection of the Australian community – international non-refoulement obligations – impediments to removal – strength, nature and duration of ties – where Applicant has secured place in a rehabilitation program – decision set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s s36, 499, 501CA
CASES
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President B W Rayment AOM QC
4 May 2022
These proceedings have been before the Tribunal previously. The reasons of the first Tribunal decision were considered by Stewart J in Federal Court proceedings in which the applicant was described as CTB19, reported at [2019] FCA 2128 and by the Full Court of the Federal Court (McKerracher, Kerr and Wigney JJ) on the Minister’s appeal reported as [2020] FCAFC 166; 280 FCR 178. As a result of the Federal Court proceedings the matter was remitted to the Tribunal for redetermination. These are my reasons for decision on the remission.
The applicant seeks review of a decision by a delegate of the Minister, dated 4 June 2018, (‘the reviewable decision’) refusing to revoke the mandatory cancellation of his visa, dated 15 May 2017 (‘the original decision’), a Subclass 202 - Global Special Humanitarian Visa (‘the visa’). The visa was granted to the applicant when he arrived here in at the age of 16 years with his mother and two brothers and a sister. An Assyrian Christian, he was born in Mosul, Iraq.
BACKGROUND
The Applicant was born in June 1991 and is therefore 30 at this time.
Many Assyrian Christians have left Iraq and moved overseas to the USA, Canada and Australia and other places. At first the applicant’s family left Iraq and fled to Syria, after the father of the family was killed in Iraq and the applicant’s sister was kidnapped. He fled with his mother and two brothers, and his sister was reunited with them in Syria after her kidnappers released her.
The applicant’s youth in Iraq and Syria was traumatic. He was very close to his father and struggled to cope with his death. He witnessed the murder of a friend in Syria. He had minimal schooling in Iraq and none in Syria. He arrived here when he was 16 years of age, and for a time went to school, where he was bullied and teased and went to TAFE instead.
His mother and two brothers all now have Australian citizenship. The applicant remained here on a visa until it was the subject of mandatory cancellation on account of one of his convictions referred to below.
He began to take drugs as a young person in this country. He at first took marijuana and later became addicted to ice, which largely accounts for his criminal convictions. He also fell in with poor company. The syndrome of a traumatic childhood overseas, drug-taking in this country, criminal convictions and adverse action taken against young immigrants under the Migration Act 1958 (Cth), after they have served their time in prison, is unfortunately often seen in the Tribunal and in the courts.
The applicant gave evidence that he will not voluntarily return to Iraq, even if the alternative is that he will remain in immigration detention. That is because he expects that he will be killed if he is returned to Iraq, and he has all his surviving family in this country. Iraq is a place that he no longer knows. Christians have lived in Iraq for thousands of years and since 2003, their population in Iraq has fallen from 1,500,000 to some 250,000. About one fifth of the Christians still in Iraq are members of the Assyrian Church of the East. Despite its territorial defeat in December 2017, Da’esh remains a major perpetrator of abuses and atrocities in Iraq, abducting and killing civilians and attacking security forces. Da’esh is thought to have been responsible for many rapes and murders of Christians. Under Da’esh the British Home Office reported in 2019 that Christians suffered killings, kidnapping, rape, enslavement, forced marriage and sexual violence. Forced conversion to Islam was also common.
The Home Office said that violence in the Kurdistan Regional Government (KRG) area of Iraq is less common, but Christians there continue to face discrimination in the form of intimidation and denial of access to services.
To sum up, the applicant’s belief that if he is sent to Iraq, he may be killed, in the light of his known family history is easily understood, and he has a rational basis for his fears.
His traumatic childhood and difficulties settling into Australian life predisposed him to be vulnerable to the drug scene, and his move to ice predisposed him to criminal behaviour in order to feed his addiction.
THE LAW
Section 501CA(4) of the Act states:
(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.
The critical question in this case is whether there is ‘another reason’ why the mandatory cancellation should be revoked.
I will next discuss each of the considerations which Direction 90 makes it mandatory for a decision-maker, including this Tribunal to take into account.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
DIRECTION 90 – PRIMARY CONSIDERATIONS
The protection of the Australian community
There are two aspects to this consideration as set out in paragraph 8.1 of Direction 90 – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
The applicant’s criminal record is as follows:
Court date
Offence
Sentence
12 Feb 2010
(Parramatta Local Court)
Goods in personal custody suspected being stolen (not m/v)
Possess housebreaking implements –T2
Section 9 good behaviour bond: 12 months
Fine: $500
11 Aug 2010
(Liverpool Local Court)
Assault occasioning actual bodily harm
Steal from the person
Section 9 months supv nsw prob service: 12 months 15 Nov 2010
(Fairfield Local Court)Possess prohibited drug Fine: $250 25 Jan 2011
Never licensed person drive vehicle on road – 1st offence
Fine: $200
21 Mar 2011
(Fairfield Local Court)
Breach of Bail Granted – application to re-determine Bail Granted order made 03 May 2011
Possess prohibited drug (x2)
Fine $200 (x2)
26 Sep 2011
(Fairfield Local Court)
Possess prohibited drug Fine $200 23 Nov 2011
(Liverpool Local Court)
Assault occasioning actual bodily harm Steal from the person
Steal from the person (15 accessory after the fact to an offence)
Use etc Offensive weapon with intent to commit indictable offence
Never licensed person drive vehicle on road – 2st offence
Community service order (callup): 40 hours Community service order (callup): 40 hours Community service order: 50 hours
Section 9 good behaviour bond: 12 months
Fine: $100. Disqualification: 3 years
15 Mar 2012
(Fairfield Local Court)
Drive while disqualified from holding a licence
Fine: $100. Disqualification: 2 years
10 May 2012
(Campbelltown Local Court)
Use etc Offensive weapon with intent to commit indictable offence
Drive while disqualified from holding a licence
Call Up; imprisonment: 1 month
Callup: Imprisonment 1 month Disqualification 2 years
25 May 2012
(Campbelltown Local Court)
Affray
Imprisonment: 4 months
08 Jun 2012
(Fairfield Local Court)
Possess prohibited drug
Enter enclosed land not presc premises w/o lawful excuse
Imprisonment: 3 months
Fine: $225
13 Feb 2013
(Campbelltown District Court)
Assault occasioning actual bodily harm
Steal from the person
Steal from the person (15 accessory after the fact to an offence)
Imprisonment (call up): 7 days
Imprisonment (call up): 7 days
Imprisonment (call up): 7 days
12 Sep 2013
(Campbelltown District Court)
Supply prohibited drugs on an ongoing basis
Supply a prohibited drug (x 9)
Take part supply prohibited drug >small &<=indictable pty-t1 (x2)
Imprisonment: 2 years & 8 months. Non- parole period with conditions: 1 year & 4 months. Release subject to supervision to participate in alcohol and other drugs support services for people from non English speaking backgrounds. Attend rehabilitation of torture and trauma, also participate in Arabic transition project. Taken into account on form 1
Taken into account on form 1
Taken into account on form 1
21 Sep 2015
(Fairfield Local Court)
Affray
Resist officer in execution of duty
Fine: $400 s. 9 Bond : 9 months
s.9 bond: 12 months
16 Nov 2015
(Fairfield Local Court)
Affray
Resist officer in execution of duty Possess prohibited drug
Call up bond s.9: 18 months supervision NSW prob service
Call up bond s.9: 18 months supervision NSW prob serviceBond s.9: 18 months to attend for counselling. Educational development, drug or alcohol rehab.
11 Feb 2016
(Fairfield Local Court)
Never licensed person drive vehicle on road – first offence
Enter prescribed premises of any person w/o lawful excuse
Goods in personal custody suspected being stolen (not m/v)
Be carried in conveyance taken w/o consent of owner
Fine: $200
Fine: $500
Fine: $500
Fine: $500
04 Aug 2016
(Fairfield Local Court)
Goods in personal custody suspected being stolen (not m/v) (x5)
Imprisonment: 6 months
04 May 2017
(Fairfield Local Court)
Goods in personal custody suspected being stolen (not m/v) (x5)
Resist officer in execution of duty (x2)
Affray
Possess prohibited drug
(Call up) imprisonment: 6 months
Imprisonment: 14 months. Non parole period with conditions: 6 months
(Call up) imprisonment: 6 months
(Call up) imprisonment: 6 months
That offending includes offences of a serious nature.
His National Police Certificate reveals many convictions dating from 12 February 2010, when he was 18 years of age to 4 May 2017. The offences included drug possession offences in 2010, three such offences in 2011, one such offence in 2012, and in September 2013 multiple offences of supplying a prohibited drug, which were dealt with at Campbelltown District Court and resulted in a sentence of two years and 8 months imprisonment starting in May 2012, with a non-parole period of one year and four months. The non-parole period expired soon after the date of the convictions, and release was to be subject to supervision to participate in alcohol and other drugs support services for people from non-English speaking backgrounds.
In her remarks on sentence on 12 September 2013, Judge Syme described the applicant as a middle level street runner and supplier of drugs, and as a pretty well continuous supplier of relatively small quantities of drugs. He was not involved in the hierarchy of the organisation. She described him as a substantial drug user for a number of years, who had seemingly been attracted to a very bad peer group. His addiction explained his need for the ongoing supply of drugs. Her Honour regarded his vulnerability as caused not only by his drug addiction but also by his traumatic background, which was described in a psychological assessment placed before the court.
Her Honour expressed hopes that he would profit from the opportunity for rehabilitation offered by the conditions for release proposed by the court’s orders.
It is evident that the conditions of release which her Honour ordered did not lead to the applicant’s addiction being cured. Indeed his use of ice has continued in detention. The applicant desires to enter a different program, involving long-term residential care, and a place has bene found for him for that purpose in Perth. That program is discussed further below.
The applicant was last dealt with by a court on 4 May 2017 for a series of matters apparently involving no further sales of drugs, but the call up of a number of bonds including one charge of possessing a prohibited drug. Those convictions resulted in a sentence of imprisonment for six months and a fresh charge of resisting an officer in the performance of his duty which he was ordered to serve a sentence of fourteen months with a non-parole period expiring about six weeks after the orders made by the local court, with certain conditions.
The conditions appear to have been intended to reinforce those specified by Judge Syme in the District Court in September 2013, and to have involved counselling three times per week and a monthly visit with a psychologist.[1]. His parole subject to those conditions would have commenced about June 2017, but on 15 May 2017 his visa was subject to mandatory cancellation as a result of the sentences imposed by Judge Syme. No rehabilitation treatment has been given to him in detention.
[1] G6 ,p.28.
His time in detention thus started in June 2017 and has now lasted almost five years.
He is presently offshore on Christmas Island. His record in detention includes reported aggression against another detainee. Detention is a place liable to bring on depression and stress, and in at least one reported case, the Commonwealth decided to send two detainees to a mental health facility in an effort to cure depression which developed in a detention centre: see S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217 (Finn J). The criminal history of the applicant includes convictions for assault occasioning actual bodily harm, and unless he undergoes a programme of rehabilitation, there can be no confidence that he will not reoffend.
Release of the applicant at the present time, without rehabilitation, would involve a significant possibility of recidivism.
The applicant strongly desires to be rehabilitated. The services made available to him in detention to date have not included rehabilitation and that will not likely change if he remains in detention.
He has a mother and all his siblings in Australia, and they include Australian citizens, with whom the applicant wishes to be reunited. His mother gave evidence, saying that she would provide him with accommodation and fer her support to him. His younger brother, aged 28 years, gave evidence that if his brother is weaned from his addiction, he hopes to go into business with him, and will offer him support. When he was younger, he called the police, which led to convictions of the applicant. He regrets having done so and expected that it may lead not to charges being brought against the applicant but to him being taken to rehabilitation, which did not occur.
The younger brother and the mother of the applicant both said that they would be devastated if the applicant were returned to Iraq.
The applicant is strongly motivated to rehabilitate himself as a result of his family’s support and their intention to remain in Australia.
The applicant has a place arranged at Cyrenian House in Perth. The Tribunal heard from a counsellor-educator, Ms FH, in the Residential Pathways programme. She and her team assessed him to be suitable for long-term residential treatment and he has been accepted for a 32 week programme. There is a four stage process, the first of which is an assessment phase, where new entrants have a chance to assess whether the therapeutic community is a good fit for them. As the stages progress, those who reach stage 4 are running therapeutic groups. There are educational group sessions, where there is discussion about relapse prevention, figuring out triggers, cravings and how to work with those. In group work, and in individual counselling, an analysis is done of how substances were picked up in the first place. Trauma being a common cause of substance abuse, and in stage 3 a lot of work will be done either in group sessions or in one-on-one work on this aspect.
Ms FH said that statistics about success rates are difficult, and some persons return to the House more than once. She said that it is amazing to see people move from assessment to stage 4 where they come back and give back. Qualified psychologists and social workers are employed at the House, but not as such. All are described as counsellor-educators.
When asked about some American statistics suggesting that fifty percent of people might not reoffend after certain programmes, Ms FH said that she expected the statistics at Cyrenian House to be of the order of a 75% success rate. That approximation gives reason to think that the applicant is likely to benefit quite substantially from the programme to which he has been admitted.
Family violence
I have considered paragraph 8.2 of Direction 90 with regard to this consideration.
The charge which the Applicant faced involving alleged family or domestic violence with a third party was dismissed.
Violence which occurred with his younger brother seems to have been minor and not serious in nature, and the younger brother told the Tribunal he regretted having involved the police. The relevant charges against the Applicant were dismissed, but the papers provide some confirmation that the charges involving the younger brother had a factual basis.
Best interests of minor children
The Applicant has no children.
Expectations of the Australian community
This consideration is to be construed as a deemed expectation reflecting government views. It does not favour the applicant or, speaking generally, others with a criminal record.
OTHER CONSIDERATIONS
International non-refoulement obligations
As enacted in this country, those obligations are described in s.36(2)(a) and (aa) of the Migration Act 1958 (Cth). The Direction suggests that decision-makers should follow the tests enunciated in the Act, therefore including what is described as complementary protection obligations mentioned in s.36(2)(aa). The position of Assyrian Christians in Iraq is one of risk, especially while Da’esh combatants remain there. That is a matter illustrated by the continuing departure of Assyrian Christians from Iraq and by the fact that their numbers have diminished by five sixths. The applicant has no idea where in Iraq he would go if forcibly returned there. A “real risk” of harm to the applicant may well face him if he is returned to Iraq. His present status as a person with an untreated addiction to ice may well pose similar risks to him, independently of his religious affiliation. Up to date information from the post in Baghdad may be necessary before a final view can be taken about either of those matters.
If Australia is put into breach of its international non-refoulement obligations by sending the applicant to Iraq, that would provide a strong discretionary reason not to send him there. The possibility of such breach arising is itself a serious matter to be taken into account where it is difficult to determine whether or not such a breach will occur and on any view, one is in that position.
Impact on victims
There is nothing before the Tribunal to suggest that this consideration is engaged.
Extent of impediments if removed
The applicant will face the risks just mentioned, and they arise from his status as an Assyrian Christian and from his status as an unreformed addict, quite apart from his subjective fear of being returned to Iraq where his father was murdered and his sister was kidnapped.
Links to the Australian community
This consideration contains two aspects – the strength, nature and duration of the non-citizen’s ties, and the impact on Australian business interests should the non-citizen be returned.
Strength, nature and duration of ties
The applicant has two brothers, a married sister and his mother here. They and he wish to be reunited. I have discussed their relationship with the applicant above.
To deprive the applicant and his family of continuity of connection, by sending him to Iraq, where he would be effectively lost to them and they to him, would be devastating.
Impact on Australian business interests
There is nothing before the Tribunal to suggest that this aspect of the consideration is engaged.
EXERCISING THE DISCRETION
Chief Justice Allsop reminded decision-makers in the context of decisions under s.501 as follows:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11 at [9]; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 at [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament: See Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3].
The present applicant has been in detention for about five years. He is so adverse to being returned to Iraq that he would prefer to remain in detention rather than agreeing to return there. He has his whole immediate family here. He has not been rehabilitated in detention, but now has a place in Cyrenian House which he may enter forthwith, and that is a place where he has a significant chance of rehabilitation and in consequence returning to the community without putting it at risk from further offending.
What was said by Allsop CJ, and the balancing of the mandatory and other relevant considerations to which I have referred above persuade me that the correct or preferable decision is to set aside the reviewable decision and to substitute a decision that the cancellation of the applicant’s visa be revoked.
DECISION
The Tribunal sets aside the reviewable decision, and in substitution decides that the mandatory cancellation of the Applicant’s Subclass 202 - Global Special Humanitarian Visa be revoked.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment AOM QC
...............................[sgd].........................................
Associate
Dated: 4 May 2022
Date(s) of hearing: 14 & 15 September 2021, 18 & 28 March 2022 Date final submissions received: 12 April 2022 Counsel for the Applicant: Mr S. Lawrence Solicitors for the Applicant: Legal Aid NSW Advocate for the Respondent: Mr K. Eskerie Solicitors for the Respondent: Sparke Helmore
0
7
0