CNNS and Minister for Home Affairs (Migration)
[2018] AATA 3043
•9 August 2018
CNNS and Minister for Home Affairs (Migration) [2018] AATA 3043 (9 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3181
Re:CNNS
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member K Millar
Date:9 August 2018
Date of written reasons: 23 August 2018
Place:Adelaide
The decision not to revoke the cancellation of the applicant’s visa is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
..........................[Sgd].....................................
Member K Millar
CATCHWORDS
MIGRATION – Mandatory visa cancellation– Global Special Humanitarian (Subclass 202) visa –- Failure to pass character test – Substantial criminal record – Applicant sentenced to 12 months or more imprisonment – Whether there is another reason why mandatory visa cancellation should be revoked – Consideration of principles under Ministerial Direction 65 – Primary and other considerations – Decision under review set aside and substituted
LEGISLATION
Migration Act 1958 – ss 36(1C), 499, 500, 501, 501CA
Sentencing Act (NT)
CASES
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197
Drake v Minister for Immigration Affairs (1979) 24 ALR 577
Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 374
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 116
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Minister for Immigration and Border Protection v BCR16 [2017] FCAFC 96
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68Re HGBY and Minister for Immigration and Border Protection [2017] AATA 2824
SECONDARY MATERIALS
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014
DFAT Country Information Report South Sudan, Department of Foreign Affairs and Trade, 5 October 2016
REASONS FOR DECISION
Member K Millar
23 August 2018
BACKGROUND
On 9 August 2018 the Tribunal delivered its decision and oral reasons for its decision. The Minister has requested the written reduction of these reasons. The following is the written reduction of those reasons.
The applicant is from South Sudan, and came to Australia on 20 November 2004 on a Global Special Humanitarian (Subclass 202) visa.
On 18 September 2016 there was an altercation outside the casino in Alice Springs and the applicant hit another person, rendering him unconscious and breaking his jaw. As a result he was convicted of unlawfully causing serious harm and sentenced to a term of imprisonment of two years and six months, which was suspended after six months’ imprisonment.
As a result of this term of imprisonment, on 23 October 2017 a delegate of the Minister for Immigration found the applicant did not meet the character test and cancelled his visa under s 501 of the Migration Act 1958 (the Act). The applicant was invited to make representations about revoking the decision to cancel his visa.
On 15 November 2017 the applicant made representations in accordance with the invitation, and sought revocation of the cancellation of the visa. On 7 June 2018, a delegate of the Minister decided not to revoke the cancellation of his visa. The applicant has applied for a review of the decision not to revoke the cancellation of his visa.
JURISDICTION
Under s 500 of the Act, an application may be made to this Tribunal for a review of a decision of a delegate of the Minister not to revoke the decision to cancel a visa under s 501CA(4).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if satisfied the person does not pass the character test because he or she has a substantial criminal record as defined in s 501(7) and is serving a sentencing of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.
A person does not pass the character test if he or she has a substantial criminal record (s 501(6)(a)). According to s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
If the Minister makes a decision to cancel a visa under s 501(3A) because the Minister is satisfied the person has a substantial criminal record pursuant to s 501(7)(c) and the person is serving a sentence of imprisonment, the Minister may make a decision to revoke the decision to cancel the visa if satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked (s 501CA(4)).
Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
It follows that the matters to be determined are whether the applicant does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked. In determining if there is another reason why the decision to cancel the visa should be revoked, the Direction must be considered unless it is inconsistent with the Act or regulations.
THE SENTENCING REMARKS
Before going on to describe the offences that the applicant has committed, some comment is required about the use of the sentencing remarks of Justice Barr of the Supreme Court of the Northern Territory.
The Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197 stated at paragraph 40 that:
It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
The Full Court held at paragraph 48 that in concluding the Tribunal need not accept the essential factual findings made by the sentencing judge in imposing the sentence, the Tribunal had made an error of law.
This is relevant in this case as the Minister invited me to consider material to suggest that the circumstances of this offence also involved the applicant stomping on the victim’s head. The summary of evidence of four of witnesses who were in the same taxi referred to stomping on or kicking the victim’s head,[1] as does the summary of alleged facts.[2] The statements of these witnesses are not before the Tribunal, nor are these witnesses available to test their evidence. The applicant denied this occurred both before the Tribunal, and to the police at the interview.[3] The police documents[4] refer to shoes seized from the applicant which were forensically tested with the result that blood was not detected on the outside surface of the shoes.
[1] Exhibit G, pages 295 – 297.
[2] Exhibit G, pages 287 – 289.
[3] Exhibit G, page 290.
[4] Exhibit G, pages 270 & 271.
Section 5 of the Sentencing Act (NT) provides a number of factors to be taken into account in determining a sentence. These include the nature of the offence, any aggravating or mitigating factors and the damage loss or injury caused. The sentencing judge made findings of fact about the offending. These include that the applicant punched the victim twice to the side of the head with the second punch rendering him unconscious.[5] If there were aggravating factors, the judge was bound to consider these. The Sentencing Act (NT) does not limit what may be regarded as an aggravating factor.
[5] Exhibit G, page 27.
I am bound to accept the essential factual findings made by the sentencing judge, and these include that the applicant punched the victim twice to the side of the head. Even if I were to be persuaded to look behind the sentencing remarks, in these circumstances, I would not be satisfied that the circumstances of the offence involved more than that found by the sentencing judge.
THE OFFENCES
The applicant has committed three offences since he arrived in Australia in 2004.
On 31 January 2011, he was working as a security guard at Centrelink and used force to physically remove a client from the Centrelink office. He was not permitted to use force unless authorised by Centrelink staff, and should have sought authorisation or called the police. The charge was proved without proceeding to conviction and the applicant was discharged. Justice Barr made the following comments about this offence:
Although I note you dealt with the situation in a somewhat heavy handed way, the Court appears to have dealt with you leniently for that offending showing they had some understanding of the full facts that were presented to the court at the time.[6]
[6] Exhibit A7, page 5.
The applicant said that a Centrelink client was being verbally abusive and he forcefully removed the client, who then complained to the police. He said he was found guilty because he did not let the manager know before he removed the client. His employment was not terminated after this occurred and he retained his license as a security guard. He said the client was 30 to 40 years old and described the assault as pushing the client outside the door of the Centrelink office.
The offence that has led to the cancellation of the applicant’s visa is unlawfully causing serious harm. The offence is described in the sentencing remarks of Justice Barr.[7] Justice Barr says the applicant had known the victim for several years. During the afternoon the victim rang the applicant who was drinking at home to ask if he could come over and drink with him. The applicant refused, which made the victim angry.
[7]Exhibit G, pages 24-29.
Some hours later they came across each other at Lassiter’s casino. They were both intoxicated. The victim asked why his request to come over had been refused which led to a minor altercation which was ended by a third person. The applicant then walked to the exit and was followed by the victim. They spoke to each other for a short time then walked across the road. For reasons which were unclear the applicant punched the victim twice to the side of the head with the second punch rendering him unconscious. At the time of the incident some witnesses were leaving the casino in a taxi and called to the applicant to stop. They approached the applicant and asked him what was going on and he said “nah, that bloke’s my cousin”. The witnesses asked why the applicant had bashed him and the applicant walked away without any attempt to render first aid or call an ambulance. He was arrested three days later at home. The applicant pleaded guilty to the offence.
The applicant did not elaborate to any great extent at hearing on what is recorded in the sentencing remarks. He said the victim was a friend who he had known for seven years. He said the victim wanted to come to his house but he said no because when the victim drinks he provokes fights. He said when he went to the casino the victim was already there but he did not know the victim would be there. They started arguing inside the casino and a third person intervened. He said he tried to walk away but the victim followed him outside the casino and the applicant punched the victim twice. The victim did not get up and the applicant left. Another person called an ambulance. The applicant said he punched the victim because they were both intoxicated and using bad language but did not elaborate on what was said.
The applicant said the victim attempted to punch him, but he avoided the punch. This is also recorded at the summary of alleged facts.[8] However the sentencing judge did not refer to this occurring, and similarly to other allegations of the circumstances of the offence, I adopt the essential findings of facts in the sentencing remarks. Any matter in mitigation is required to be taken into account by the judge under the Sentencing Act (NT).
[8] Exhibit G, page 290.
On 8 February 2017 the applicant was convicted without penalty for a breach of bail. The applicant described this as being a few minutes late to report because he was working. He said after this his bail conditions were changed to accommodate his work. The Minister pointed out that the summary of alleged facts in the police file[9] states that instead of reporting between 8am and 6pm on Friday as required by the conditions of his bail, the applicant reported on Monday at approximately 4:40pm, and this is more than a few minutes late. The applicant ultimately said he was mistaken. The Minister invited me to consider the applicant’s credibility as he attended some days later and not minutes later as he initially said. The Minister submitted this shows a lack of appreciation of the seriousness of this offence. While the applicant’s evidence on this point was not accurate, I do not make any adverse conclusions about his credibility in light of his other evidence being consistent with the documents in front of me.
[9] Exhibit G, page 204.
The Minister also referred to other allegations in the police file and the police investigation of these allegations. After the allegations were investigated no charges were laid and no conviction recorded for any offence. The prejudicial effect of this material is high given its limited probative value. The Minister did not seek to further rely on these allegations, acknowledging that at its highest these were as a result of a misunderstanding.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The applicant’s visa must be cancelled if he does not pass the character test and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory. He does not pass the character test if he has a substantial criminal record where he has been sentenced to a term of imprisonment of 12 months or more.
On 4 August 2017 the applicant was convicted of unlawfully causing serious harm and sentenced to a term of imprisonment of two years and six months.
This sentence was suspended after six months; the sentence in this case is the sentence of imprisonment imposed and not the term of imprisonment actually served.[10]
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 586.
This means the focus is on the term of imprisonment actually imposed and not on the any potential for that term to be cut short by premature release on parole or by some similar mechanism.[11]
[11]Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 374 at [41] - [45].
The applicant was sentenced to a term of imprisonment of over 12 months and by definition does not meet the character test. At the time of the cancellation he was serving a sentence of imprisonment on a full time basis in a custodial setting.
This means both that the Minister must cancel the applicant’s visa under s 501(3A) of the Act, and in considering whether to revoke the original decision, s 501CA(4)(b) is not met. The remaining issue to be determined by the Tribunal is whether there is another reason the original decision should be revoked.
IS THERE ANOTHER REASON THE ORIGINAL DECISION SHOULD BE REVOKED?
Subparagraph 501CA(4)(b)(ii) looks to whether the Minister is satisfied that there is another reason why the original decision should be revoked. According to the Federal Court in Gaspar v Minister for Immigration and Border Protection[12] this involves an examination of the factors for and against revoking the cancellation. If satisfied the cancellation should be revoked, the Minister, and the Tribunal in the place of the Minister, is obliged to act on that view.
[12](2016) 153 ALD 337; [2016] FCA 116 at [38].
In looking at whether there is another reason the original decision to cancel the applicant’s visa should be revoked, the Tribunal must apply the Direction.
This means the decision must be informed by the Principles expressed in cl.6.3 of the Direction. These are that:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, 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.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by these principles, the Tribunal must take into account the considerations in Part C of the Direction in making a decision (cl.7). In doing so, information from independent and authoritative sources should be given appropriate weight, both primary and other considerations may weigh in favour of or against whether to revoke the mandatory cancellation of the visa, primary considerations should generally be given greater weight than the other considerations and one or more primary consideration may outweigh other considerations (cl.8).
The primary considerations in the Direction are protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community.
Other considerations are international non-refoulement obligations, the strength nature and duration of ties to Australia, the impact on Australian business interests, the impact on victims and the extent of impediments if the applicant is removed from Australia.
In looking at primary and other considerations, the Federal Court has held in Suleiman v Minister for Immigration and Border Protection[13] that while the Direction requires that primary considerations should generally be given greater weight, this does not mean the other considerations may not be given equal or greater weight than primary considerations on the facts of a particular case because it is outside the circumstances that generally apply.
[13] [2018] FCA 594 at [23].
Protection of the Australian Community
The first primary consideration is the protection of the Australian community. The Direction sets out at cl.13.1 that
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Direction further sets out what must be considered under the nature and seriousness of the conduct at cl.13.1.1 and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct at cl.13.1.2.
Clause 13.1.1 of the Direction sets out matters to be considered in looking at the nature and seriousness of the offending and other conduct to date.
The first of these is the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
The offence of unlawfully causing serious harm has a maximum sentence of 14 years imprisonment, which shows that this is a serious offence. This offence occurred in the context of an unspecified disagreement between the applicant and the victim and is a violent offence. The applicant punched the victim twice to the side of the head. The applicant left the victim unconscious and did not make an attempt to render first aid or call an ambulance. The sentencing judge states it is an offence of serious violence with serious consequences for the victim in terms of pain and suffering and financial loss.
The seriousness of the other two offences of aggravated assault and breach of bail are reflected in the penalty, with a discharge without proceeding to conviction recorded for the aggravated assault, and a conviction without penalty for the breach of bail. These offences are less serious.
In looking at whether the crimes were committed against vulnerable members of the community, the circumstances of the offence of unlawfully causing serious harm was committed against a male of a similar age to the applicant, as was the offence of aggravated assault, and were not committed against people with a particular vulnerability.
The sentenced imposed by the Court for unlawfully causing serious harm was two years and six months imprisonment, which was suspended after six months. The sentencing judge states that the reason for the sentence being suspended after six months was to encourage the applicant’s rehabilitation and to take into account his personal circumstances. There was no penalty imposed for either of the other offences.
In looking to the frequency of the offending and whether there is a trend of increasing seriousness, prior to the offence of unlawfully causing serious harm in 2016 and the related breach of bail, the previous offence occurred in 2011. There is a sufficient period of time and a difference in the nature of the offences that justifies treating these as isolated incidents and not increasing in frequency. While the later offence is more serious, as they are two isolated incidents there is no trend of increasing seriousness.
There is no suggestion that the applicant has provided false or misleading information to the Department, been formally warned in the past or has committed any offences while in immigration detention. His positive behaviour while in immigration detention was acknowledged in writing in the written invitation to the welfare and engagement BBQ at Yongah Hill Immigration Detention Centre.[14] He worked while imprisoned and provided a reference[15] in which he was described as being eager to learn, having a high level of pride in his work, having a good rapport with fellow workers and is respectful of others.
[14] Exhibit A4.
[15] Exhibit A1.
Of these matters the seriousness of the offence, being a violent offence, weighs against not revoking the cancellation. Other factors such as the isolated nature of the offences, and the conduct of the applicant towards the Department are more neutral, and do not show a pattern of offending.
Clause 13.1.2 sets out matters to be considered in considering the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The principle to be applied is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some types of conduct and the harm that would be caused if it were to be repeated are so serious that any risk it may be repeated is unacceptable.
The risk of harm to a person as a result of even one punch have recently been highlighted in reports of serious injuries or death as a result, and the potential risk to a person if this conduct were to be repeated is high.
In looking at the likelihood of the applicant engaging in further criminal or other serious conduct, in the circumstances of this particular case, there was a dispute between people of the same sex and age that had known each other over many years. The applicant had declined the request by the victim to come to his house, and had also walked away while he was in the casino and was followed outside by the victim. The Minister sought to rely on records that the victim said he was to stay overnight at the applicant’s house, but this was denied by the applicant.
The offence occurred in the context of the use of alcohol, and as stated by the sentencing judge this type of alcohol fuelled offending is prevalent and the consequences place a great strain on the health system. While there is some evidence that the applicant complied with conditions of his bail not to consume alcohol and that he enrolled in a course[16] and completed the “Safe Sober Strong” course while in prison,[17] his intake interview with corrections records that he drinks very occasionally.[18] It cannot be ruled out that he will use alcohol in the community in the future and that this will affect his behaviour.
[16] Exhibit G, page 51.
[17] Exhibit A11.
[18] Exhibit G, page 180.
The sentencing judge refers to the offence as being out of character for the applicant, and the prospects of rehabilitation as being good.[19]
[19] Exhibit A7, page 5.
The reference from the staff co-ordinator at the forensic disability unit includes a statement that she does not believe the applicant would re-offend and does not believe he poses a risk to the wider community.[20] It expresses a belief that the incident was completely out of character. This sentiment is also expressed by a previous program manager from Bushmob where the applicant worked as a case worker with young people with substance misuse issues.
[20] Exhibit A10.
The Tribunal heard from Ms Tania Collins, who also provided a written statement.[21] Ms Collins is the general counsel for Northern Australian Justice Agency and the applicant rents a unit she owns next to her house. Ms Collins also described the offence as being out of character and stated her view was that he had abided by the terms of his bail conditions and had taken them seriously, including the condition that he not drink alcohol. She said he had expressed remorse and taken active steps to stop drinking and to work.
[21] Exhibit A8.
The applicant said his bail conditions included not approaching the victim. He has shown he can abide by a condition to remain away from the victim in the community. He was charged with the offence on 21 September 2016 and was sentenced on 4 August 2017. He was released on bail for some if not all of that period with the one breach of his bail conditions, being one failure to report.
The findings of the sentencing judge and the evidence of the witnesses are that the offence was out of character. The sentencing judge found the prospects of rehabilitation are good. Overall, I consider the prospects of the circumstances of this particular offence occurring again are low.
The second primary consideration in 13.2 of the Direction is the best interests of minor children in Australia affected by the decision. This applies to children under 18 years of age and the best interests of each child affected are to be given individual consideration.
The applicant has two children who are in Australia. He is separated from the mother of his older child who is five years old. The applicant was paying child support to the mother of his child prior to being imprisoned, and has provided a child support assessment showing he was assessed to pay over $300 per fortnight in child support which was automatically deducted from his salary.[22] It was put to the applicant that he has never lived with his older daughter, however he said he returned to Melbourne for approximately four months and lived with her for that period. He talks to her approximately once a week.
[22] Exhibit A3.
The applicant’s younger daughter was born on 10 February 2018. The applicant has not yet seen her in person as he had been in prison and then immigration detention. The applicant speaks to his partner and his daughter up to three times a day and they exchange texts and pictures as well as using video calls.
There is meaningful contact between the applicant and his older child and constant contact with his younger child. Both children are of a young age, and the applicant can contribute on an ongoing basis to their support and wellbeing for a lengthy period of time including by providing financial support. His current partner gave evidence that she has not seen the applicant act aggressively and she does not have any concerns for their daughter’s safety. This view was also expressed by his partner’s mother.
The mother of his partner provides support to his partner and their baby, and his partner has relocated to be in the same area as her mother for this support. The grandmother gave evidence that her daughter is not able to work as she does not have the support of the applicant, and she can only provide limited assistance as she works full-time.
The absence of the applicant from Australia is likely to have a detrimental effect on the applicant’s children. The Minister acknowledged it would be in the best interests of the children if he were to remain in Australia.
The third primary consideration is the expectations of the Australian community. The Direction sets this out at cl.13.3 as:
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 visa 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 views in this respect.
As pointed out by Justice Mortimer in YNQY v Minister for Immigration and Border Protection[23] at paragraphs 76 and 77:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) 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 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.
... It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[23] [2017] FCA 1466.
It follows that this primary consideration weighs against revoking the cancellation of the applicant’s visa.
Turning to the other considerations in the Direction, the first of these is international non-refoulement obligations. According to the Directions, these obligations do not preclude the non-revocation of the cancellation of a visa.
The applicant held a global humanitarian visa in coming to Australia. His application for this visa states he was taken into custody in Sudan because it was alleged he was an agent of the rebels and assisting them. He alleges he was tortured in custody and escaped.[24]
[24] Exhibit G, page 128.
In his response to the notice of intention to cancel his visa, the applicant stated that
South Sudan is more dangerous and more violent than any other time in South Sudan history. They are fighting between tribes meaning Nuer and Dinka which make it impossible for people to live in returning back to South Sudan not only is dangerous but being one of the tribe you are assumed as an enemy. I do have concerns that if I am returned I will be killed.[25]
[25] Exhibit G, page 45.
This at least raises the issue of whether Australia has a non-refoulement obligation in relation to the applicant as contemplated by cl.14.1(3)
As the visa that was held by the applicant is not specifically a protection visa, he can apply for a further visa within Australia.
The wording of the Direction is that where the person can apply for another visa, non-refoulement obligations need not be considered (cl.14.1(4)). However the failure to consider these obligations has been found to be an error in Minister for Immigration and Border Protection v BCR16[26] and Minister for Immigration and Border Protection v BHA17.[27] This is logical considering the ability of the Minister to refuse a visa under s 36(1C) of the Act without considering non-refoulement obligations.
[26] [2017] FCAFC 96.
[27] [2018] FCAFC 68.
An examination of Australia’s non-refoulement obligation in this case is hampered by the lack of submissions on this point by the applicant and the lack of an assessment of international treaty obligations by the Minister. The Minister points to the 84 day time frame for these applications as requiring practical adjustment to be made in assessing these obligations and relies on Re HGBY and Minister for Immigration and Border Protection.[28] While this results in the need for a decision to be made on the material before me, this task could have been undertaken by the Minister. South Sudan is a country commonly considered by the Minister and much of the material is available.
[28] [2017] AATA 2824.
The information that has been made available is the Department of Foreign Affairs and Trade (DFAT) report on South Sudan. The applicant identifies as being from the Nuer ethnic group in his original visa application.[29]
[29] Exhibit G, pages 119 & 128.
In regard to the Nuer ethnic group, the DFAT report states at [3.9]-[3.10]:
Following the outbreak of conflict in December 2013, the Government conducted a violent crackdown on the Nuer population in Juba. Human Rights Watch reported that this involved targeted killings, house-to-house searches, mass arrests, the unlawful detention of hundreds of men and torture. Human Rights Watch documented more than 60 incidents of extra-judicial killings of one or more individuals. In one of the worst incidents Government forces rounded up between 200 and 400 Nuer men and killed all but 13 the following day. Nuer have continued to be targeted by the Sudan People’s Liberation Movement, Sudan people’s Liberation Army and other groups aligned to the government. A significant number of Nuer remain in Protection of Civilian camps run by the UN mission in South Sudan for their own safety.
Overall, DFAT assesses that Nuer residing in areas under the control of the Government, including Juba, face a high risk of official and societal discrimination and violence. Nuer living in conflict-affected areas under the control of the Sudan people’s Liberation Movement in Opposition face a low risk of official or societal discrimination or violence, but may still be at risk given their proximity to the conflict and that fact that the boundaries of the conflict frequently shift as well as their limited ability to internally relocate.
The Minister submitted that the risk should the applicant be removed to South Sudan was one of generalised violence and would affect all people and was not as a result of persecution.
If the applicant is unable to remain in Australia he would be required to go to South Sudan, a country that did not exist when he came to Australia in 2004. The applicant said he was born in South Sudan and could obtain a South Sudanese passport. Conditions for returnees are described in the DFAT report. This states that conditions for returnees depend on the individual’s ethnic or sub-ethnic linkages and whether the individual has been perceived to question the authority of the government. It states the existence of Protection of Civilian camps in Juba demonstrates a real risk still exists for individuals who are perceived to be associated with the Sudan People’s Movement in Opposition.[30]
[30] DFAT report at [5.20].
It is regrettable that there is no assessment of international treaty obligations before me. In light of the DFAT report there is at least a possibility that Australia has an obligation not to forcibly return the applicant to South Sudan. If so, this would result in the prospect of indefinite detention. However in the absence of further information no finding can be made definitely on this point, and as a result I place some, albeit limited, weight on this factor in favour of the applicant.
The next consideration is the nature and strength of the applicant’s ties to Australia.
The applicant came to Australia in 2004, when he was approximately 16 years of age. The serious offence giving rise to the cancellation occurred in 2016, twelve years after his arrival. The less serious offence occurred seven years after his arrival.
There is a lengthy period of time with no offending behaviour. In that time the applicant attended school and university, although he did not complete his university degree. He has worked as a security guard for Talice Security, including in Centrelink offices. More recently he worked for Bushmob as a case worker, working with young people aged 12 to 25 who have substance misuse issues.
He has also worked as a disability support worker at the Specialist Support and Forensic Disability Unit. According to the staff co-coordinator at this unit this involves 24 hour residential support services for people with challenging behaviours who are subject to court orders.[31] References from his supervisors[32] state he is a positive team member and has taken on additional responsibility when required. He is described as developing valuable rapport with clients.
[31] Exhibit A10.
[32] Exhibit G, page 53 & Exhibit A10.
The applicant is in a relationship with the mother of his younger child who is of Aboriginal descent. He has provided financial support to her from his savings while in custody and in immigration detention. His partner has resigned from her position in the Northern Territory government and relocated to Queensland to gain the support of her mother. She is not able to work due to the care of the baby. The applicant maintains a relationship with his older child. He also maintains a friendship with the mother of his older child.
The Chair of the Federation of South Sudanese Association provided a written statement[33] and gave evidence that he routinely saw the applicant at the church and volunteering in the community, in particular at cultural shows where he performed and organised people to dance as well as assisted in transporting elders home.
[33] Exhibit A2 & Exhibit G, page 60.
The applicant has made a significant contribution to the Australian community, and has been here for a lengthy period of time. He has ties with his two children and his partner in Australia. This factors strongly in the applicant’s favour.
The third consideration is the impact on Australian business interests. This would generally only be given weight were an employment link would significantly compromise the delivery of a major project or delivery of an important service in Australia. While the applicant has provided valuable services in his employment, the ending of this employment would not compromise the delivery of such a service.
In looking to the impact of a decision not to revoke on members of the Australian community, this includes victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant has been afforded procedural fairness.
According to the sentencing remarks the victim required surgery and was airlifted to Darwin from Alice Springs. This had a significant effect on the victim, who is recorded in the sentencing remarks as feeling weak and worried about seeing the applicant again. He required three weeks off work and suffered a loss of income.[34]
[34] Exhibit A7, page 4.
There is no other information before me about the impact on the victim if the visa is not revoked. The applicant said he was in the same community as the victim for a period of approximately twelve months before he was sentenced. He says he abided by the condition placed on him that he did not contact or approach the victim, and other than one charge of failing to report there are no reports of the applicant breaching his bail conditions.
While I have had regard to the reported effect of the offence on the victim, the question before me is slightly different, which is the impact on the victim if the visa is not revoked. I cannot form any conclusion on the impact on the victim in this regard. I am satisfied that in the time the victim and the applicant resided in the same community before he was sentenced, he was not charged with any offences relating to him approaching the victim. This consideration is given limited weight in favouring the non-revocation of the cancellation of the visa.
In regard to the extent of impediments the applicant may face if he is removed from Australia, the applicant will have significant difficulty in re-establishing himself in South Sudan. His mother and brother are in a refugee camp in South Sudan and he provides financial support to his mother. His financial resources have been depleted during his imprisonment and subsequent detention. He would be required to re-establish himself with no financial resources.
CONCLUSION
Having considered the matters in Direction 65:
(a)I give the first primary consideration less weight because there is a balance between the nature of the risk if the applicant were to commit a similar offence, which weighs against him, and the low prospects of this occurring again. The statements by referees and the sentencing judge are that the offence was out of character for the applicant. His conduct in the 12 months in the community prior to sentencing did not attract sanctions other than one breach of bail for reporting late. He has undertaken a course Safe Sober Strong in prison. While there are two other offences, one occurred in the context of being a security guard at Centrelink removing a person for abusive language and the other is a breach of bail that did not attract a penalty. The sentencing judge found his prospects for rehabilitation were good. This primary consideration is marginally in the applicant’s favour.
(b)The primary consideration of the best interests of the child weigh heavily in the applicant’s favour due to the young age of his children, his ongoing contact with them and his financial support of his children.
(c)The expectations of the Australian community weigh against the revocation of the cancellation of the visa, as the Federal Court notes this is designed to do.
(d)The other considerations are generally in favour of revoking the cancellation of the applicant’s visa, in particular the strength, nature and duration of his ties to Australia and to a lesser extent the extent of impediments if he were to be removed and international non-refoulement obligations. The impact on the victim weighs against revoking the cancellation of the visa.
Having considered all the matters in the Direction and weighed the primary and other considerations, I have concluded that for the purposes of s 501CA(4)(b)(ii) of the Act, there is another reason why the original decision should be revoked.
DECISION
The decision not to revoke the cancellation of the applicant’s visa is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Member Millar
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Administrative Assistant - Legal
Dated: 23 August 2018
Dates of hearing: 2 August 2018 & 9 August 2018 Advocate for the Applicant: Brian Kelleher Advocate for the Respondent: Melinda Jackson Solicitors for the Respondent: Australian Government Solicitor
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