Chibwana and Minister for Home Affairs (Migration)
[2018] AATA 2571
•31 July 2018
Chibwana and Minister for Home Affairs (Migration) [2018] AATA 2571 (31 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2739
Re:Horrace Chibwana
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Antoinette Younes
Date:31 July 2018
Place:Sydney
The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Class AH (Subclass 117) (Orphan Relative) visa.
.....................[sgd]...............................................
Senior Member Antoinette Younes
CATCHWORDS
MIGRATION – decision not to revoke section 501 visa cancellation – orphan relative visa – failure to pass character test – whether another reason why original decision should be revoked – Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – whether Tribunal required to consider international non-refoulement obligations – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision not to revoke the cancellation of the applicant’s orphan relative visa affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 48A, 499, 501(3A), 501(6), 501(7A), 501CA(4), 501E
TREATIES
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT)
International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Antoinette Younes
31 July 2018
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 7 May 2018 not to revoke the cancellation of the applicant’s Class AH (Subclass 117) (Orphan Relative) visa (visa). The delegate found that the applicant did not meet the requirements of s 501 of the Migration Act 1958 (Cth) (the Act), relating to character.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test.
Section 501CA(4) of the Act provides that the Minister may revoke the original mandatory cancellation decision if the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test (as defined by s 501), or that there is another reason why the original decision should be revoked.
BACKGROUND
The applicant is originally from Malawi and he arrived in Australia on 16 May 2004, aged 14 years. His mother died when he was about six years old and his father died when he was about eight. He and his brother were raised by their auntie, Lillian. He has no other siblings apart from his brother. The applicant was schooled up to year 10 and he has challenges in terms of reading and writing English.
The applicant’s criminal history[1] is extensive. Since 2008 until June 2017, the applicant has been before the Courts in relation to multiple offences:
[1] Exhibit G – G Documents, AFP National Police Certificate, dated 24 January 2018 pp. 29-33.
Court date
Offence
Sentence
09 Jun 2017 Stalk/intimidate intend fear physical etc harm (personal)
Behave in offensive manner in public passenger vehicle etc
Shoplifting
Possess or use a prohibited weapon without permit
Assault officer in execution of duty
(Call up) Imprisonment – 5 months commencing 9 June 2017
(Call up) Imprisonment – 5 months commencing 9 June 2017
(Call up) Imprisonment – 3 months commencing 9 June 2017
(Call up) Imprisonment – 3 months commencing 9 June 2017
(Call up) Imprisonment – 18 months commencing 9 June 2017 with a non-parole period
21 Jul 2016 Shoplifting value <= $2000
(Call up) Imprisonment – 1 month commencing 22 June 2016
04 May 2016 Shoplifting
Shoplifting
$100 fine
$100 fine
02 May 2016 Assault officer in execution of duty (Call up) Imprisonment – 18 months commencing 18 November 2015, suspended on entering s 12 bond. Offender to reside report to Community Corrections at Parramatta within seven days of release and to reside with Denise Wagner (cousin)
21 Jan 2016 Possess prohibited drug
$300 fine, drug to be destroyed
19 Oct 2015 Travel or attempt to travel without valid ticket – adult s 10a conviction – no other penalty 29 Sep 2015 Shoplifting
Stalk/intimidate intend fear physical etc harm (personal)
Behave in offensive manner in public passenger vehicle etc
Assault officer in execution of duty
Possess or use a prohibited weapon without permit
Possess prohibited drug
Larceny value <= $2000
Imprisonment – 8 months commencing 9 August 2015 with a non-parole period (reduced to 3 months and 10 days on appeal)
s 9 bond – 3 years. Offender to attend programmes for counselling, educational development or drug and alcohol rehabilitation
s 9 bond – 6 months
Imprisonment – 2 years commencing 8 February 2016 with a non-parole period (reduced to 18 months on appeal)
(Call up) s 9 bond – 3 years, supervision by NSW Probation Service
(Call up) s 9 bond – 3 years, supervision by NSW Probation Service
(Call up) s 9 bond – 3 years, supervision by NSW Probation Service
29 Jul 2015 Shoplifting value <= $2000
Community service order – 50 hours, property to owner
15 Jul 2015 Larceny value <= $2000
Fail to appear in accordance with bail Granted acknowledgment
Larceny value <= $2000
Possess prohibited drug
s 9 bond – 12 months, supervision by NSW Probation Service
$110 fine
s 9 bond – 18 months, supervision by NSW Probation Service
$440 fine, drug to be destroyed
09 Jul 2015 Travel or attempt to travel without valid ticket – adult
Shoplifting
$150 fine
$500 fine
23 Jun 2015 Travel or attempt to travel without valid ticket – adult
$50 fine 11 Mar 2015 Possess or use a prohibited weapon without permit
Possess prohibited drug
s 9 bond – 9 months, weapon/implement forfeited to the Crown
s 9 bond – 9 months, drug to be destroyed
24 Feb 2015 Assault officer in execution of duty
$2,200 fine 02 Dec 2014 Goods in personal custody suspected being stolen (not motor vehicle)
$1,000 fine 22 Nov 2012 Participate in criminal group assist criminal activity
Take part in supply of a prohibited drug
Take part in supply of a prohibited drug
Take part in supply of a prohibited drug
Take part in supply of a prohibited drug
Fail to appear in accordance with Bail Granted undertaking (conviction)
Fail to appear in accordance with Bail Granted undertaking (non-conviction)
Imprisonment – 7 months, suspended on entering s 12 bond and Court costs
Imprisonment – 7 months, suspended on entering s 12 bond and Court costs
Imprisonment – 7 months, suspended on entering s 12 bond and Court costs
Imprisonment – 7 months, suspended on entering s 12 bond and Court costs
Imprisonment – 7 months, suspended on entering s 12 bond and Court costs
s 10a conviction – no other penalty
s 10a conviction – no other penalty
06 Feb 2012 Drive on road etc while licence suspended
$1,800 fine, Court costs and licence disqualification for 2 years commencing February 2012
09 Nov 2011 Possess prohibited drug
Licence expired less than 2 years before – 1st offence
$500 fine and Court costs, drug to be destroyed
$800 fine and Court costs
17 Oct 2011 Possess prohibited drug
$350 fine and Court costs, drug to be destroyed
02 May 2011 Enter prescribed premises of any person without lawful excuse
$300 fine and Court costs 28 Apr 2010 Shoplifting value <= $2000
$500 fine, compensation and Court costs
29 Jul 2009 Use uninsured motor vehicle
Use unregistered registrable class A
motor vehicle$400 fine and Court costs
$400 fine and Court costs
16 Feb 2009 Have custody of an offensive implement in a public place
Refuse/fail to comply with direction under part 14
$100 fine and Court costs
$50 fine and Court costs
01 Jul 2008 Special category driver drive with special range Prescribed Concentration of Alcohol
s 10 bond – 12 months and Court costs
On the evidence before it, the Tribunal finds that the applicant has been sentenced to a number of terms of imprisonment, totalling (concurrent) 34 months. Consequently, the Tribunal finds that the applicant does not meet s 501 because he has a substantial criminal record as defined in s 501(7A), namely that for the “purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms”.
Having made those findings, the Tribunal needs to consider the principles in Ministerial Direction No. 65.
MINISTERIAL DIRECTION NO. 65
On 22 December 2014, under s 499 of the Act, the Minister issued Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65/Direction). The Direction is binding on decision-makers performing functions and exercising powers under s 501. The Direction requires the Tribunal to take into account specified primary and other considerations.
Part C of the Direction identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
In its Preamble, the Direction articulates some of the objectives of the Act which include the regulation, “in the national interest, the coming into, and presence in, Australia of non-citizens…a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test”.[2]
[2] Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, at 6.1(1) and (2).
Under the headings General Guidance and Principles, the Direction refers to a number of guiding matters, including:
·The Government’s commitment to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that “there should be no expectation that such people should be allowed to come to, or remain permanently” in Australia.[3]
·Being able to come to, and remain in Australia is a privilege. Australia has a right as a sovereign nation to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
·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.[4]
·A non-citizen who commits a serious crime, including one of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.[5]
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants, especially in cases where the criminal conduct is so serious that any risk of similar conduct in the future is unacceptable.
·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 in the context of determining whether the visa should be cancelled or refused.[6]
Ibid at 6.3(6).
[4] Ibid at 6.3(2).
[5] Ibid at 6.3(3).
[6] Ibid at 6.3(7).
The Direction requires the decision-maker to take into account primary and other considerations relevant to an individual case including a differentiation between refusal of a visa and a cancellation, whereby the latter recognises that non-citizens holding substantive visas would generally have an expectation of being allowed to remain in Australia whereas the former should have no expectation that the visa application would be approved in the event of a character concern.
Of particular relevance to the exercise of discretion is the statement in the Direction that primary considerations should generally be given greater weight than other considerations.
THE PRIMARY CONSIDERATIONS:
a) Protection of the Australian community from criminal or other serious conduct:
Paragraph 13.1.2 of Direction 65 states:
1. In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers 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.
Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In submissions[7] explaining his offending, the applicant stated:
·Losing both of his parents at a young age was traumatic. They both died after illnesses three years apart and he watched them suffer. Subsequent to their death, he lived with extended family but there was not much support or supervision.
·His brother Anthony had moved to Australia subsequent to the death of their mother. Anthony worked very hard for years so he could support the applicant to come to Australia.
·When he came to Australia, he struggled emotionally, at school as he was unable to read or write, and he had poor mental health. During his teenage years and early 20s, he self-medicated with drugs and alcohol which are the main reasons for his offending. His mental health issues drove him apart from his family resulting in him being in the streets which caused further depression and abuse of drugs and alcohol.
·He will not and cannot reoffend and with the help and support network that he finally has, as well as identifying emotional issues and depression as being the source of his behaviour. He is working with people to deal with those issues in order to become a reliable member of society. He is committed to working hard so that he can be a positive role model for his son.
·He has started courses while in custody to improve his reading and writing. He is attending courses to become a valuable member of society. He is sorry for his offending and although it is not an excuse, he truly believes that his depression and substance abuse were to “blame”. He is committed to getting his life in order, making his family proud and becoming a valued member of Australia which he loves. His son deserves every opportunity in life. He is dealing with his emotional and mental issues and is seeking professional help. He is determined to overcome those issues and thrive in society. He has the full backing and support of his family, his brother Anthony and his wife, his auntie Jill, his cousins and their families. He has full-time employment as a labourer/trades assistant with a construction company.
[7] Exhibit G – G Documents, pp. 75 and 79.
In oral evidence, the applicant expressed remorse for his wrongdoing. Mr Grech who was a support person in the course of the hearing submitted that the applicant is trying to do the right thing. Although it is plausible that the applicant is trying to do the right thing, his conduct suggests otherwise. The Tribunal notes that the applicant’s evidence in relation to the issue of substance abuse was somewhat inconsistent, however the Tribunal has not drawn any adverse conclusions on this basis. Essentially, the applicant gave evidence that he has had a drinking problem for some time and that around 2009 he started using drugs, namely marijuana and methyl amphetamine. He stated that he stopped working at that time and that he first sought counselling about his alcohol and substance abuse in May 2017 from a psychologist whom he saw on two occasions.
The Tribunal acknowledges the applicant’s explanations and intentions. Those however need to be considered in the context of objective information before the Tribunal. The evidence before the Tribunal indicates that the applicant has an extensive criminal history. The applicant has been convicted of offences including assault on a police officer in the execution of their duty, dishonesty, possession of prohibited weapons, intimidation, possession of prohibited drugs, driving whilst license suspended, drink driving, and larceny. The Tribunal observes that the nature and seriousness of the applicant’s offending increased over time. Direction 65 notes that violent offences are viewed very seriously and that crimes committed against “government representatives or officials due to the position they hold, or in the performance of their duties, are serious”.[8] The fact that the applicant has been convicted of offences committed against police officers in the performance of their duties adds to the seriousness of the applicant’s conduct. The Tribunal is particularly concerned about the applicant’s assault on police officers in the performance of their duty and the Tribunal has given this aspect significant weight in deciding not to revoke the cancellation of the applicant’s visa.
[8] Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA,at 13.1.1(1)(b).
The seriousness of the applicant’s conduct is further evidenced by the fact that he has committed offences such as the assault officer in execution of duty, stalk/intimidate intend fear physical harm, and shoplifting offences when he was subject to good behaviour bonds and a community service order. This indicates to the Tribunal that the applicant has been out of control for many years and he has demonstrated serious disregard for the law. The seriousness of the applicant’s conduct is reflected in the escalating sentences which have been imposed on the applicant. The evidence before the Tribunal indicates that the applicant has received increasing sentences which began with mostly the imposition of fines but escalated to the imposition of good behaviour bonds, suspended sentences, revocation of suspended sentences and terms of imprisonment.
The Tribunal observes that in sentencing the applicant on 9 June 2017, her Honour Magistrate Giles stated “Mr Chibwana you have made a large number of people’s lives really miserable. You have behaved like an absolute rat bag and you are not taking enough personal responsibility for what you put in your body and what comes out of your mouth when you abuse people. Shocking things you say to the police, shocking things you say to this poor security guard. And shopkeepers get very tired of people stealing from them because ultimately we all have to pay more because of people who steal and as anyone who works in retail will tell you these days retail is very grim and people stealing even just one thing can be the difference every week between breaking even and the business making a loss and that is not very fair on small shopkeepers. Eventually I am sure you will own a business and you will be very cross if people steal from you”.[9]
[9] Exhibit G – G Documents, p. 43.
The Tribunal refers to the Pre-sentence Report Sentencing Options Assessment, prepared by the Corrective Services of New South Wales on 16 March 2017[10] where it is noted that the applicant had stated that he was using “cannabis and methyl amphetamine on a daily basis from the age of 18 to 25 years and was consuming 10 full strength beers and a bottle of spirits in a sitting at the age of 25. He reported that he has not used illicit drugs for the past eight months and claimed his use of alcohol has reduced to two to four beers on the weekend. Whilst these assertions were supported by Mr Chibwana’s friend it is noted that the offender has not engaged in any intervention to address the underlying issues related to his substance abuse and that he claimed to have been intoxicated at the time of the offence” (referring to the offence of shoplifting).
[10] Exhibit F – Tender Bundle, p.132.
In its Report to the Gosford District Court dated 1 June 2017[11] the Corrective Services of New South Wales assessed the risk of reoffending as follows:
According to an actuarial risk/needs assessment tool (Level of Service Inventory –Revised), the offender is assessed as a medium/high risk of reoffending. The offender’s criminogenic needs are:
·drug and alcohol issues
·unresolved mental health issues
[11] Exhibit F – Tender Bundle, p.137.
In a previous report to Gosford District Court dated 22 September 2015[12] by the Corrective Services of New South Wales, the applicant’s risk of reoffending was assessed as follows:
According to an actuarial risk/needs assessment tool (Level of Service Inventory –Revised), the offender is assessed as a medium risk of reoffending. The offender’s criminogenic needs are:
·drug and alcohol problems.
[12] Exhibit F – Tender Bundle, p. 334.
The Tribunal gives significant weight to those assessments and concludes that the reports are highly persuasive evidence that the risk of reoffending has increased over time rather than decreased; in 2015, the risk was medium whereas in 2017, the risk became medium to high.
The Tribunal is satisfied on the evidence before it that the applicant has repeatedly breached Court orders and has failed to engage with corrective services. In the course of the hearing, the applicant was questioned extensively by the respondent’s representative, about his drug and alcohol abuse. In the Tribunal’s view, he showed limited insight and acknowledgement of his conduct and substance abuse.
The Tribunal is satisfied that the applicant has committed multiple serious offences. The offences have caused and have the potential to cause serious harm to individuals as well as the Australian community at large. The Tribunal is of the view that violence against officers, shoplifting, drink-driving, substance abuse, taking part in the supply of a prohibited drug, stalking/intimidating with intent, are serious. The Tribunal is of the view that the types of offences committed by the applicant have the potential of exposing the Australian community to an unacceptable risk.
On the evidence before it, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending weigh heavily against the applicant.
In terms of risk to the Australian community, it is important to consider the totality of the applicant’s circumstances.
The Report to the Gosford District Court dated 1 June 2017[13] by the Corrective Services of New South Wales notes that the applicant “appears to have limited insight into the impact his offending behaviour has on his victims and failed to show any remorse”. The Tribunal is of the view that although the applicant has stated that he is remorseful, the Tribunal is satisfied that the evidence shows he has limited insight into the seriousness of his actions.
[13] Exhibit F – Tender Bundle, at p.138.
The applicant has engaged in conduct which the Tribunal views as violent, serious and relevant to the consideration of the risk to the Australian community should he display the same pattern again. The applicant’s long history of offending despite multiple Court outcomes, good behaviour bonds and suspended sentences means that the Tribunal is not satisfied that the applicant would not reoffend. Consistent with paragraph 13.1.2 of Direction 65, the Tribunal is satisfied that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Looking at the applicant’s circumstances as a whole, the Tribunal is satisfied that there is a significant risk that the applicant would reoffend. The Tribunal is satisfied that there is a risk and consistent with paragraph 6.3(4) of Direction 65, “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”, the Tribunal is satisfied that the risk is unacceptable and weighs heavily against revocation.
The Tribunal is satisfied and for the stated reasons, that the consideration of the protection of the Australian community weighs heavily against the applicant.
b) The best interests of minor children in Australia:
Direction 65 sets out a number of factors to be considered in assessing the best interests of minor children in Australia, including the nature and duration of the relationship, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, and whether there are any other people who fulfil parental roles with the child.
The applicant has an eight-year-old son who is an Australian citizen. The applicant has made submissions[14] that his relationship with his son started when he was first conceived and that he was very excited to become a father. He stated that he was determined to be the best he could be, particularly because his own father died when he was very young. He and his son’s mother were in a loving relationship and were living together when his son was born. He stated that he was a hands-on father and enjoyed every minute of being a father but unfortunately his relationship with the mother did not work out. He stated there was a lot of stress including financial and being young parents, as well as his own mental health issues. He stated that after he and the mother broke up, he tried to remain in his son’s life but the ongoing conflict between he and the mother made it difficult to maintain regular contact. He stated that his financial situation and mental health issues impacted his ability to provide for his son. He stated that he had difficulties in contacting the son’s mother and he wants “nothing more than to be an active and positive influence in my son’s life. Getting my life in order means I will be the very best parent I can possibly be… I honestly want nothing more than to get my act together and be the father figure… I want him to have the very best chance in life and I believe that includes having my love, support and guidance throughout his life.” The Tribunal acknowledges those sentiments. The Tribunal does not doubt the applicant’s sincerity in this regard. The Tribunal has given this aspect some weight in favour of the applicant.
[14] Exhibit G – G Documents, p. 74.
The applicant gave evidence that he last saw his son in 2014 but had maintained subsequent contact through telephone calls, the last of which occurred in late 2015. He gave evidence that his son lives with his mother who has full parental responsibilities. The applicant explained that he commenced a relationship with the son’s mother when he was about 16 years old and they lived together in 2008 and 2009. He gave evidence that when his son was about two years old, he lost his job and left. He confirmed that there is no Court order in relation to access.
Although the Tribunal acknowledges that it would be in the best interest of the applicant’s son for the cancellation to be revoked, the Tribunal is satisfied that the nature of the relationship that the applicant has with his son is limited. There is no evidence before the Tribunal that the applicant has been the primary carer for his son or that he has had day-to-day responsibilities for his upbringing. The evidence before the Tribunal indicates that the applicant has not assumed or accepted parental responsibilities for his son who has always lived with his mother. Although it is plausible that the applicant has had contact with his son, the Tribunal is satisfied that the contact is irregular and limited suggesting a detached relationship with his son.
Without intending to sound harsh or unkind, given the applicant’s significant criminal history, substance abuse and in consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant would play a positive parental role in the future or that he would have a role to mean that the visa should not be revoked. The Tribunal is satisfied that the totality of the evidence indicates that the applicant has not had a close and strong relationship with his son. The applicant has explained the circumstances about his relationship with his son by essentially saying that this was due to unemployment, homelessness and other personal challenges. The Tribunal acknowledges the applicant’s difficulties, however, the evidence before the Tribunal indicates that the applicant has played a limited role in his son’s life and there is not a meaningful relationship. Accordingly, the Tribunal has decided to give this consideration limited weight.
The applicant also has a niece who is about six years old. He first met her in 2016 or 2017. There is no evidence before the Tribunal of any parental responsibilities towards his niece, or regular contact or a meaningful relationship with the niece. Accordingly the Tribunal gives this aspect limited weight.
Given the nature and extent of the relationships the applicant has with his son and niece, the Tribunal gives this consideration limited weight.
c) Expectations of the Australian Community:
The Direction states at paragraph 13.3(1) that:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the government’s view in this respect.”
In the Statement of Facts, Issues and Contentions[15], the respondent’s representative referred to the decision of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 where her Honour Justice Mortimer noted that this consideration is linked to the factor of protection of the community and “in substance…is adverse to any applicant… are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes” (at [76]). Her Honour went on to say:
The Australian community’s expectations are defined only in one particular way: namely, that the Australian community expects non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction. [76]
[15] Exhibit E, p. 8.
Direction 65 makes it clear that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Moreover, the Direction at paragraph 6.3 states that the right of a non-citizen to come to or remain in Australia is a privilege conferred in expectation that the person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal appreciates that there is a subjective element in assessing community expectations. The Tribunal is of the view that given the applicant’s conduct, it is reasonable to suggest that the Australian community would not expect that the cancellation of his visa would be revoked. The Tribunal acknowledges that community expectation is difficult to objectively ascertain, however it is reasonable to suggest that the Australian community expects its members to act responsibly towards one another and not to engage in conduct that could lead to serious harm to members of the community. Consistent with paragraph 13.3 of the Direction and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Tribunal is satisfied that given the seriousness and long history of the applicant’s offending behaviour, the Australian community would expect that the applicant would not continue to hold a visa. The Tribunal is of the view that the Australian community would have an unfavourable perception of the applicant’s criminal conduct, particularly towards police officers upon whom the community relies for protection and safe administration of justice. It is reasonable to suggest that the community would not hold a favourable view of someone who has shown such a degree of disregard towards police officers or an officer in the performance of their duty.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
OTHER CONSIDERATIONS:
a) International non-refoulement obligations
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Direction 65 states that the “existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists”.[16]
[16] Direction No. 65 at paragraph 14.1(2).
In submissions[17], the applicant claimed that if he were to return to Malawi, he would face problems. He claimed that Malawi is an extremely poor country and there are not any opportunities for employment. He indicated that there are no support systems for those with mental health issues and moreover, disease, (such as HIV/AIDS), crime and violence are prevalent. He also claimed that he would fall into deep depression and would not be able to function at all.[18]
[17] Exhibit G – G Documents, p. 79.
[18] Exhibit G – G Documents, p. 78.
The respondent contended that the Tribunal is not required to determine the question of non-refoulement obligations as the applicant has the option of lodging an application for a protection visa. The Tribunal notes that the applicant is not prevented from lodging an application for a protection visa by ss 48A or 501E of the Act where a full assessment of any protection claims would be undertaken. The respondent argued that although the Tribunal is required in the current review to turn its mind to the applicant’s claims of harm, consistent with the decision of Ali v Minister for Immigration and Border Protection [2018] FCA 650, the Tribunal is not compelled to make a determination on whether non-refoulement obligations are owed. The respondent relied on the decisions of Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 and PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961 to contend that the Tribunal is not called upon to engage in extensive assessment and determination of protection claims that the Migration and Refugee Division of the Tribunal (MRD) would undertake.
As mentioned, there is material before the Tribunal indicating that applicant has made protection claims. It is correct that the applicant is not prevented from lodging an application for a protection visa where any such claims would be fully-assessed. Given the fact that there are protection claims before the Tribunal, it is proper for the Tribunal to address those claims.
The Tribunal asked the applicant why he does not wish to return to Malawi and he stated that he has no family or financial support. He stated that HIV is prevalent and he has lost two cousins. He stated that his auntie who lives in Malawi is an MP and has been involved in politics for some time. He confirmed however that he was not aware of any harm suffered by his auntie or anyone else. The Tribunal appreciates that the applicant has limited education which might have impacted on his ability to elaborate further on his claims and provide specific details. The Tribunal however found the applicant’s claims to be lacking in details, vague and general. On the evidence before it, the Tribunal is not satisfied that there is a real chance or a real risk of the applicant facing serious or significant harm as defined, in the event of his return to Malawi.
Accordingly, the Tribunal is not satisfied that there are non-refoulement obligations in the applicant’s circumstances. Consequently the Tribunal places no weight on this consideration.
b) Strength, nature and duration of ties
The applicant first arrived in Australia approximately 14 years ago and he has resided here since that time. The Tribunal acknowledges that 14 years is a significant period of time particularly as the applicant was young when he arrived in Australia so he has spent a substantial part of his teenage years and 20s in this country. However, it is important to consider the applicant’s circumstances during his stay in Australia.
The evidence before the Tribunal indicates that the applicant’s ties to Australia include his child, a niece, a brother and his family, two aunties and cousins. The applicant gave evidence that he last saw his brother around June 2017 and prior to that time, he had not seen family members for some time. He explained that he had lost his employment and was mixing with the wrong crowd.
The applicant has provided a number of letters of support including from his brother, his aunty, cousins, Mr M Grech, Ms J Grech, Fr N Dias, and Mr P Djolic. Although a number of the letters do not specifically refer to the applicant’s offending, the Tribunal has given the letters of support some weight in favour of the applicant. The Tribunal however notes and as discussed in the course of the hearing, that the applicant’s relationship with various members of his family is strained.
On 21 September 2015, Fairfield Community Corrections contacted the applicant’s cousin by telephone, Ms Denise Walton. It is noted that Ms Walton “stated that she is “disappointed” and “frustrated” that the offender has found himself with new legal matters and advised she is no longer in a position to support the offender in anyway. Ms Walton reported that whilst the offender is a “good person” he has been provided with accommodation, financial and family support on numerous occasions and continues to reoffend. Denise reported that she is not willing to have the offender reside at her residence or with her family, citing that the offender would often “steal belongings from the family home and sell the items”. Ms Denise Walton stated that she does not believe that the offender will be able to address this behaviour until he is willing to work on his “alcohol dependence and ice addiction” and related that she does not want him to return to the family home until he has completed a period of rehabilitation at a detox centre. Denise stated that she is willing to communicate with community corrections, however is not in a position to support the offender with accommodation or financial support at this point in time”.[19]
[19] Exhibit F – Tender Bundle, p. 347.
On 21 September 2015, Fairfield Community Corrections contacted the applicant’s aunty by telephone, Ms Jill Mezieres who stated that the applicant has had a tumultuous upbringing after the death of his parents and reported that she had raised him with her children after his parents passed away. She stated that the applicant “is no longer welcome to reside in the family home and will not be supported financially. Jill advised that the offender’s last stay at her residence was traumatic, with the offender running away from home, taking items from home and towing away family items in the trailer from his cousin’s home. Jill confirmed that the offender has the support of his brother, however reported that all family members are “at their wits end” citing “we don’t know how to help him at this stage”. Jill stated that she believes the offender will require full-time supervision to “sort life out” and “deal with his alcohol and drug addiction”.[20]
[20] Ibid.
On the same day, Fairfield Community Corrections also contacted the applicant’s brother, Mr Anthony Chibwana (Nazombe) who stated that he is “extremely frustrated and reported that whilst the family is willing to support the offender emotionally he cannot be supported with accommodation or finances after “many burned bridges”. Anthony stated “we are not giving up on him” and “we need a demonstrated commitment that Horrace has changed”. Anthony reported that he has assisted the offender on numerous occasions with bail and support and reported that the offender appears to take this for granted and relies on family to “bail him out”. Anthony stated that he will not be giving up however has a two-year-old daughter that must be his first priority”.[21]
[21] Ibid.
Mr Nazombe attended the hearing as a support person and he expressed his support for his brother. Similarly, Mr Grech attended the hearing as a support person and he also expressed his support for the applicant. The Tribunal does not doubt the sincerity of the sentiments expressed by both Mr Nazombe and Mr Grech. The Tribunal accepts that they want to support him and consider themselves to have strong ties with the applicant.
Although there is evidence before the Tribunal of ties in Australia with family, as outlined above, members of the family have reached a level of frustration and despair with the applicant to suggest weakened and strained ties. When considered as a whole, the Tribunal is satisfied that despite having family members in Australia, apart from his brother Anthony, the applicant has limited ties with other members of the family. The Tribunal acknowledges the friendship that the applicant has with Mr Grech who appeared to be a kind person who genuinely wanted to offer assistance to the applicant.
The applicant has worked in Australia on and off and he has a potential employment opportunity but his work history has been limited and does not indicate strong ties with Australia.
Although there are aspects that weigh in favour of revocation, in consideration of the evidence as a whole and despite being in Australia for about 14 years, the Tribunal is not satisfied that the applicant has strong ties to Australia and the Tribunal has therefore given this consideration limited weight.
c) Impact on Australian business interests
There is no evidence to indicate that this consideration is relevant.
d) Impact on victims
The applicant’s offending conduct has resulted in victims including shop owners and officers assaulted in the execution of their duty. As her Honour Magistrate Giles stated “Mr Chibwana you have made a large number of people’s lives really miserable…Shocking things you say to the police, shocking things you say to this poor security guard. And shopkeepers get very tired of people stealing from them because ultimately we all have to pay more because of people who steal and as anyone who works in retail will tell you these days retail is very grim and people stealing even just one thing can be the difference every week between breaking even and the business making a loss and that is not very fair on small shopkeepers. Eventually I am sure you will own a business and you will be very cross if people steal from you.[22]
[22] Exhibit G – G Documents, p. 43.
The Tribunal gives weight to this consideration in deciding not to revoke the cancellation of the applicant’s visa.
e) Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 requires, amongst other things, the Tribunal to give regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country.
The applicant is now 28 years of age; he suffers from depression and has drug and alcohol issues. He otherwise appears to be in good health. His aunt Lillian continues to live in Malawi where he has spent half of his life. He also has two cousins. The applicant expressed concerns about returning to Malawi on the basis of his mental and physical health, lack of family support and prevalence of HIV/AIDS in Malawi.[23]
[23] Exhibit G – G Documents, pp.78-79.
Direction 65 at paragraph 14.5(1) states that the extent of any impediments that the applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before the Tribunal that the applicant would be unable to access the same level of services available to other citizens of Malawi.
Although the Tribunal has given some weight in favour of the applicant in relation to this consideration, on balance, the Tribunal is not satisfied that this consideration outweighs other considerations.
Cumulative considerations
The Tribunal has carefully considered relevant matters in Direction No. 65. The aspects that weigh heavily against the applicant relate to primary considerations and the Tribunal has given those considerations significant weight. In relation to the Primary Considerations, Protection of the Australian Community and Expectations of the Australian Community, the Tribunal is satisfied and for the stated reasons that those considerations weigh heavily against revocation of the mandatory cancellation of the applicant’s visa.
The principles in Direction 65 require a decision-maker, such as the Tribunal to undertake a balancing exercise which involves consideration of all relevant matters and to accord them proportionate weight. The balancing process requires the consideration of all relevant matters before the Tribunal and the assignment of proportionate weight. The Tribunal is satisfied that it has given regard to all relevant matters, individually and cumulatively, and given them weight which the Tribunal considers to be appropriate in the circumstances.
For the stated reasons, the Tribunal finds that the applicant does not meet the requirements of s 501(7A) of the Act. In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction 65, the Tribunal has decided to affirm the decision not to revoke the cancellation of the applicant’s visa.
On the evidence, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the applicant’s Class AH (Subclass 117) (Orphan Relative) visa.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Class AH (Subclass 117) (Orphan Relative) visa.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes
.........................[sgd]...........................................
Associate
Dated: 31 July 2018
Date(s) of hearing: 24 July 2018 Applicant: In person Solicitors for the Respondent: Sparke Helmore Lawyers
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