CWGF and Minister for Home Affairs (Migration)
[2019] AATA 179
•19 February 2019
CWGF and Minister for Home Affairs (Migration) [2019] AATA 179 (19 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7044
Re:CWGF
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:19 February 2019
Place:Sydney
The decision under review is affirmed.
.......................[Sgnd]...................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Al-Kateb v Godwin [2001] HCA 37
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
DMH16 v Minister for Border Protection [2017] FCA 448YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
Senior Member B J Illingworth
19 February 2019
INTRODUCTION
This matter relates to an application for review filed by CWGF (“the Applicant”) on 30 November 2018. The decision which the Applicant seeks to review is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 28 November 2018 not to revoke the mandatory cancellation of the Applicant’s visa.
BACKGROUND FACTS
The Applicant is a 35 year old citizen of Iran. He was born in 1983 in Ahwaz, Iran.[1]
[1] Exhibit B, Statutory Declaration of Applicant sworn on 4 February 2019.
The Applicant arrived in Australia in September 2012 at the age of 29 years.[2] On 4 January 2013, the Applicant was granted a Class XB (Subclass 866) Protection visa.[3] This visa was granted on the basis that the Applicant was in fear of serious harm or persecution because he is an ‘Ahwazi Arab’ and has participated in Ahwazi political activity.
[2] Exhibit H, G Documents, G21, page 124.
[3] Ibid, G4, page 22.
Between 2013 and 2016, the Applicant committed a number of traffic infringements and other offences. I will come back to them. On 7 January 2017, four years after having been granted protection in Australia, the Applicant was involved in an incident with police. This involved, amongst other things, the Applicant driving at excessive speed to evade police in heavy traffic on the Hume Highway and in suburban areas, throwing items at the police vehicle including what appeared to be a small axe which struck the police car, and driving at a police officer.[4]
[4] Ibid, G6, pages 36-38.
On 14 February 2017, the Applicant was convicted and sentenced to 18 months imprisonment with a non-parole period of 12 months for the offences committed on 7 January 2017, which included:
(a)Goods in personal custody suspected of being stolen;
(b)Resist or hinder police officer in the execution of duty;
(c)Receive etc property stolen outside NSW greater than $2,000 & less than $5,000;
(d)Use offensive weapon to prevent lawful detention;
(e)Drive recklessly/furiously or speed/manner dangerous; and
(f)Police pursuit – not stop - drive at speed.[5]
[5] Ibid, G5, pages 29-35.
On 24 April 2017, the Applicant’s sentence for the above offences, on appeal to the Parramatta District Court, was reduced to 16 months imprisonment with a non-parole period of 10 months.[6]
[6] Ibid.
On 5 April 2017, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis.[7] Following his release, the Applicant was thereafter detained in immigration detention.
[7] Ibid, G11, pages 79-83.
On 7 June 2017, the Applicant made representations seeking revocation of the mandatory visa cancellation but they were lodged out of time.[8] On 14 December 2017, the Applicant’s representative made a request[9] that the Applicant be permitted to make representations and so the Applicant was reissued with a cancellation notice on 19 March 2018.[10] He thereafter had 28 days to respond.
[8] Ibid, G12, pages 86-89.
[9] Ibid, G17, pages 101-102.
[10] Ibid, G19, pages 112-115.
On 3 April 2018, the Applicant made further representations seeking revocation of the mandatory visa cancellation pursuant to s 501CA(4)(a) of the Act.[11]
[11] Ibid, G20 and G21, pages 119-141.
On 28 November 2018, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked.[12] Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
[12] Ibid, G3, pages 12-26.
On 30 November 2018, the Applicant lodged with the Tribunal an application for review of the delegate’s decision.[13]
[13] Ibid, G1, pages 1-2.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been provided to a person if the Minister is satisfied of the following:
(a)The Minister is satisfied that the person does not pass the character test because of the operation of:
(i)Paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)The person is serving a sentence 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.
The character test is defined in s 501(6)(a) of the Act. Under s 501(6)(a) of the Act, a person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act, which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more;
…
Pursuant to s 501CA(4) of the Act, the Tribunal may revoke the Original Decision to cancel a visa if:
(a)The person makes representations in accordance with the invitation; and
(b)The Minister is satisfied:
(i)That the person passes the character test (as defined by section 501); or
(ii)That there is another reason why the original decision should be revoked.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations on 3 April 2018 in accordance with the Respondent’s invitation dated 19 March 2018. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, Ministerial Direction No 65 (“the Direction”), issued on 22 December 2014, applies.
Ministerial Direction No. 65
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, 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 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 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.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction it states that a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims; and
(e) Extent of impediments if removed.
The Tribunal will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and relevantly provides:
(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 the 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 Tribunal will address each of the considerations 13.1(2)(a) and 13.1(2)(b) in turn with reference to 13.1(1).
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the court for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)…
(g)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
The Tribunal received the Applicant’s signed statutory declaration dated 4 February 2019.[14] In summary, the Applicant was born and grew up in Ahwaz, an Arabic area of Iran. At the age of four, he discovered his older sister, who was aged 12, dead in bed. This had a lasting effect on him. He left school at the age of 10 to help support his family. When growing up he felt discriminated against and could not practise his culture. The people in Ahwaz were subject to arbitrary arrest, detention and physical violence by Iranian authorities.
[14] Exhibit B, Statutory Declaration of Applicant sworn on 4 February 2019.
The Applicant was heavily involved in the Arab movement in 2009 and, because of his fear for himself and his family, he fled to Australia. The Applicant arrived in September 2012 by boat with his wife and daughter, who was aged 6 years. The Applicant’s son was born in Australia at the end of 2013.
Whilst in Australia, the Applicant’s uncle and brother who lived in Iran both died. This also had an effect on him. In Australia, the Applicant continued to be vocal in respect of his commitment to defending Ahwazi rights and, as a result, his parents were visited by Iranian authorities. One of his brothers paid a bribe and sought employment away from Ahwaz due to harassment.
The Applicant said he turned to drugs to cope with life. He had difficulty adjusting to life in Australia and missed his family and his home. He struggled with the English language and he associated with Australians involved in drugs. He became involved with another woman who, in 2017, was the passenger in the motor vehicle when the Applicant committed the offences of 7 January 2017. While the Applicant was in custody, that woman later died as a result of drugs. Her death shocked him. The Applicant stopped taking drugs once in custody and continues to be drug-free despite the ease with which he says one can obtain drugs in detention. He has completed the EQUIP Addiction program at Villawood Immigration Detention Centre (“IDC”), participates in a methadone programme, and attends Narcotics Anonymous (“NA”).
The Applicant said he was sorry, embarrassed and ashamed of his criminal offending which he said occurred when he was taking drugs. The Applicant declared he takes responsibility for his behaviour and has had no problems in prison or detention. Further, he declared that he now tries to help other detainees and is a friend of Sister Helen who trusts the Applicant and, when she is not available, refers other detainees to him for help. The Applicant said he has now changed such that he no longer gets angry, he now helps others and studies. In particular, he is learning English.
The Applicant is a licensed forklift, loader, excavator, and grader driver. He hopes to obtain employment using those skills and join the Army Reserve upon his release from detention. The Applicant said he was formerly a commando in Iran.
The Applicant said he wants to get his life back, parent his children, and be with his wife. He said that, when released, he, his wife, and children will relocate to Sydney and start again. He no longer associates with those involved in drugs. The Applicant speaks to his children every day depending on telephone access.
The Applicant declared that he is worried should his visa cancellation not be revoked and of the potential consequence of open ended or indefinite detention. He declared he cannot be returned to Iran.
In addressing this consideration, it is first necessary to have regard to the Applicant’s criminal history. In cross-examination, it was put to the Applicant that soon after his arrival in Australia he committed a number of traffic infringements, the first on 2 May 2013 being disobey traffic lights. He committed two further offences on 6 June 2013 of speeding and not keeping left on a multi-lane road.[15] He was also referred to a number of traffic offences committed in Victoria between 30 November 2015 and 24 June 2016, being offences of speeding and disobey traffic lights. The Applicant’s response when asked about those offences was vague and unhelpful. He said he did not have a driver’s licence in 2013, and had no memory of the offences in Victoria but said “the camera doesn’t lie”. As for the speeding offences, the Applicant said he used cruise control. He made no appropriate admission in respect of any of those offences which was surprising. He later vaguely recalled a traffic infringement that incurred whilst driving from Melbourne to Sydney. He said his memory was not good particularly after being diagnosed with diabetes 15 years ago and because of the consequences of his use of methamphetamine.
[15] Exhibit I, Respondent’s Tender Bundle, TB3, page 77.
The Applicant was cross-examined about his drug use. His evidence was again confusing with his either not answering the question or embellishing his answer with reference to his difficult background. The Tribunal had regard to his lengthy history of drug abuse which may give some explanation for the standard of his evidence and his lack of memory.
The Applicant started taking drugs approximately six months after the birth of his daughter and while still living in Iran. He said that he only saw his daughter in hospital and thereafter his wife and daughter went to live with her family for 40 days. The Applicant went to the city and “did drugs”. He would smoke methamphetamine each Thursday for about an hour which resulted in him staying awake throughout Friday because “the drug didn’t let you sleep”. He said he used drugs because he was stressed and scared of being caught by Iranian authorities. He also drank alcohol to excess.
The Applicant attended Alcoholics Anonymous (“AA”) in Iran. He was taken there by one of his brothers, whom he said also had an alcohol problem. There were a number of courses that were each a week in total, but extended over a 90 day period. He never proceeded past the fourth week. The Applicant had three relapses and after each relapse he returned to AA. He never completed an AA program because he never told the truth and never “got clean”. He said that he helped others who had been placed in a drug rehabilitation camp. He said he stopped using drugs approximately one to one and a half years before travelling to Australia but he continued to drink alcohol. He only stopped drinking alcohol when he was taken into custody on 7 January 2017.
The Applicant used drugs when in Australia but his evidence about when that drug abuse commenced was vague and inconsistent. He initially said that at the time of his son’s birth he was buying 10 “ice” tablets for $50 and buying opium. By the time of his arrest, the Applicant said he was injecting methamphetamine and heroin, and drinking. In reference to a report dated 20 April 2017 of Sam Borenstein, a Clinical Psychologist, the Applicant confirmed he was injecting one gram of “ice” and half a gram of heroin per day. If he had more money, he would consume more drugs. He also smoked two packets of cigarettes a day. The Applicant later in evidence, in response to questions asked by the Tribunal, said that his drug abuse in Australia commenced one to one and a half years after the birth of his son, who was born in late 2013.
Later in evidence, the Applicant said that the reason for his drug use was because a medical practitioner stopped prescribing Tramadol to relieve back and leg pain. He said that the medical practitioner ruined his life. However, he also suggested that the death of his uncle and brother in Iran was a contributor to his stress which resulted in him returning to drugs.
The Tribunal also notes from the Applicant’s criminal history that he has been convicted and sentenced for charges of assault.
The Applicant was questioned about his National Police Certificate[16] which indicates on 22 March 2016, at Dandenong Magistrates Court, the Applicant received a sentence of imprisonment of 19 days and an 18 month community corrections order for pleas of guilty to the following offences:
(a)Contravene family violence intervention order;
(b)Intentionally destroy property;
(c)Unlawful assault (2 charges);
(d)Assault with a weapon; and
(e)Contravention contract condition of bail (4 charges).
[16] Exhibit H, G Documents, G5, pages 29-35.
The Certificate Extract record of the Magistrates Court of Victoria, Dandenong indicates that offences 1 to 4 inclusive were committed on 5 February 2016 and the contravention contract condition of bail offences occurred on 7, 8, 9 and 10 February 2016.[17]
[17] Exhibit J, Respondent’s Supplementary Tender Bundle, TB8, pages 386–402.
In respect of the contravene family violence intervention order, the Applicant said that, about two and a half weeks earlier, he and his wife had an argument. The police were called and he has not seen his children since that argument. As to the circumstances of the offence, he said he waited at his house until his wife and children left. He then let himself into the house to collect his clothes and police arrived 10 minutes later. He does not know who contacted the police. He said that was the extent of his wrongdoing and he did not acknowledge any other offence having been committed, albeit the record indicates he pleaded guilty to the balance of the charges 2 to 5 referred to above. The Applicant denied ever having a weapon in his possession.
It is here worth noting the additional evidence given by the Applicant. He said he never struck his wife or children, however he acknowledged the relationship remained acrimonious. He said that two and a half months ago his wife telephoned him in detention. She warned him against further contacting her and threatened to call the police. He attributed to his wife the statement that police had installed surveillance cameras in the home. The Applicant said this was not fair and he called his lawyer following the telephone conversation. He said his wife would not let him see his children. He said he would call his brother to see if he could arrange for him to see his children. The Applicant said that an intervention order continues to be in place with respect to his wife and children.
Further, the Applicant was charged with a series of offences for which he pleaded guilty and was dealt with in the Dandenong Magistrates Court on 27 October 2016.[18] The offence dates range from December 2015 to October 2016 and include offences of dishonesty, possess controlled weapon, possess a dangerous article, unlawful assault, bail offences, contravene family violence interim order committed on 22 December 2015, possess heroin committed on 21 December 2015, and possess methamphetamine committed on 20 October 2016. The Applicant admitted the drug offending but claimed no memory as to the balance of the charges to which he pleaded guilty, including contravention of the family violence interim order which preceded the offending for which he was dealt with on 22 March 2016 and referred to above.
[18] Exhibit H, G Documents, G5, pages 29-35.
The Applicant’s evidence about the history of his criminal offending was wholly unsatisfactory. Some allowance can be made for the reliability of his evidence due to his loss of memory as a result of his diabetes and drug abuse. However, when cross-examined about the offending committed on 7 January 2017 for which he was sentenced to imprisonment for more than 12 months, his evidence raised serious concern about his credibility and lack of insight into his offending.
The circumstances of the Applicant’s offending on 17 January 2017 are contained in the New South Wales Police Facts Sheet.[19] That factsheet references 14 offences. The circumstances of the offending can be summarised as follows:
[19] Exhibit I, Respondent’s Tender Bundle, TB3, pages 56-62.
(a)At about 6:22 a.m. on Saturday, 7 January 2017, a Nissan Maxima sedan driven by the Applicant and bearing New South Wales registration plates was travelling south on Hume Highway at about 131 km/h in a 110 km/h zone. There was a woman in the front passenger seat of the vehicle.
(b)Police activated warning devices and flashed headlights. The Applicant’s vehicle accelerated to 180 km/h. The pursuit continued at varying speeds from 145 km/h to 171 km/h. The Applicant’s vehicle changed lanes and tailgated other traffic. A small axe or tomahawk was thrown from the area of the front passenger seat which struck the police vehicle. A spray can was also thrown out by the passenger, and a box was thrown from the driver’s window at the police car. Road spikes were set up further down Hume Highway.
(c)The vehicle subsequently turned sharply to the right and then turned left, travelling in a southerly direction in the northbound lanes of traffic. Police terminated the pursuit due to extreme danger.
(d)At about 7:00 a.m. the Applicant’s vehicle was located in Goulburn in the drive-through area of a McDonald’s restaurant. A Senior Constable approached the vehicle on foot. The Applicant closed the open driver’s side door and accelerated to a speed of not less than 60 km/h through the drive-in lane and steered the vehicle towards the Senior Constable. The Senior Constable took evasive action and the vehicle missed him by no more than 30 centimetres.
(e)The Applicant failed to give way to a vehicle and continued to drive in a southerly direction in northbound lanes. He drove onto the southbound entrance to Hume Highway at high speed toward Sydney. Police did not engage in another pursuit due to the high risk posed to the community.
(f)At 7:52 a.m. a helicopter saw the Applicant’s motor vehicle travelling at approximately 180 km/h both overtaking and undertaking numerous cars on Hume Highway. The vehicle exited Hume Highway and then drove through a number of suburbs at high speed, crossing to the wrong side of the road on numerous occasions, running red lights and narrowly missing other vehicles. At 8:31 a.m. the Applicant stopped his motor vehicle and he and his passenger exited the motor vehicle.
(g)Shortly thereafter, police located the Applicant with a woman. When approached by police he ran away. The Applicant was pursued on foot and subsequently apprehended on private property. He resisted arrest.
(h)Checks on the Applicant’s motor vehicle revealed the displayed number plates were stolen off a Toyota Camry on 6 January 2017, the day before the incident. The vehicle was registered in Victoria and was listed as stolen on 24 December 2016. Police located two large knives and a large meat cleaver in the vehicle together with another set of stolen Victorian registration plates.
(i)The Applicant had extremely dilated pupils, was unbalanced, sweating heavily, and appeared scattered and unfocused as well as drowsy and generally dishevelled. Blood samples were taken.
When cross-examined about the offending, the Applicant agreed he was driving the motor vehicle and his girlfriend was the passenger. He said he had been taking drugs and his girlfriend had been injecting him with drugs while he was driving. They were travelling back to Victoria. He remembered that he drove deliberately to escape from police but he had little memory of the events that followed. He could not explain why he was later driving on Hume Highway in the direction of Sydney. He recalled being at McDonald’s and seeing police, and accelerating to get away but he did not recall seeing the Senior Constable whom he nearly hit with his car. The Applicant had no further memory of the event until he was in hospital.
The Applicant said he and his girlfriend obtained drugs in Sydney after they saw an Iranian gentleman in a car park affected by drugs. They spoke to him and he put them in contact with a drug dealer.
As for the Nissan motor vehicle, the Applicant said he purchased it from a friend in Melbourne approximately 20 days earlier. He did not know it was stolen. He could not explain the stolen registration plates in the vehicle nor the stolen New South Wales number plates displayed on the vehicle. His explanation for these allegations became confused and unbelievable. He later said in cross-examination that there were no number plates, knives or meat cleaver in the motor vehicle and said of the police that “they dumped everything on me”. He said the police made up that evidence. He later said he was wrongly accused. However, he admitted he pleaded guilty to the alleged offences so that his girlfriend would not go to gaol.
The Applicant was also cross-examined about his conduct whilst in prison and in detention. His attention was drawn to various New South Wales Department of Correctional Services case note reports relating to him. That evidence can be summarised as follows:
(a)In the Case Note Reports from Goulburn Correctional Centre, a number of incidents involving the Applicant are reported on 11 June 2017,[20] 8 July 2017,[21] and 2 October 2017,[22] including an Alleged Assault Incident Form related to entries with respect to the Applicant and another inmate, and 18 October 2017.[23] Those reports alleged incidents of violence involving the Applicant. In one report, he was described as a combatant. There is reference to the Applicant being withdrawn from the EQUIPS Foundation due to an assault on another group member. In the 2 October 2017 report, there is a handwritten note on the incident report that says the Applicant “has been involved in two incidents in the past two weeks… he has been placed on D deck for his own safety” and references him as being charged with fighting. The Applicant’s response when questioned about those events was evasive. He said “how can I assault someone in gaol?” and that he could not remember. He did acknowledge that he completed his sentence in segregation.[24]
(b)In the Incident Detail Report relating to Villawood IDC, a number of incidents involving the Applicant are reported to have occurred on 27 January 2018,[25] 28 January 2018,[26] 10 February 2018,[27] 3 October 2018,[28] 21 November 2018,[29] and 20 December 2018,[30] In summary, those reports reference verbal abuse directed at medical staff, arguments and verbal threats including threats to kill directed towards other detainees, and challenging detainees to fight.
[20] Ibid, TB5, pages 154–155.
[21] Ibid, TB5, pages 167–170.
[22] Ibid, TB5, pages 133–143.
[23] Ibid, TB5, pages 192–193.
[24] Ibid, TB5, page 192.
[25] Ibid, TB6, page 263.
[26] Ibid, TB6, page 271.
[27] Ibid, TB6, page 283.
[28] Ibid, TB6, page 300.
[29] Ibid, TB6, page 303.
[30] Ibid, TB6, page 305.
In general, the Applicant denied any abusive behaviour at either Goulburn Correctional Centre or at Villawood IDC and said that he would step in to stop any incident rather than engage in conflict. He said that staff had praised him for intervening in prisoner or detainee disputes. The Applicant attributed conflict with medical staff at Villawood IDC as relating to conduct by a particular nurse, who the Applicant said did not treat either him or other detainees well. He otherwise denied any inappropriate or threatening behaviour by him towards staff at Villawood IDC.
The Applicant submits that his criminal behaviour was connected to his drug addiction and that his criminal offending was at the lower end of seriousness. It was argued that this was further demonstrated by the range of sentences imposed on the Applicant by various courts. By his pleas of guilty shortly after the committed offences, the Applicant argues that he has accepted responsibility for his offending. It is further argued that he has remained sober for 15 months and has not committed a crime while in prison or immigration detention. The Applicant notes that despite drugs being readily available, he has remained drug-free.
The Respondent invites the Tribunal to find that the offending was serious. The Respondent refers in particular to the Sentencing Remarks dated 14 February 2018 in respect of the offences committed on 7 January 2017. The Respondent submitted the seriousness of that offending was exacerbated by the fact that the Applicant was subject to a Victorian sentence at the time of the offences, being a community correction order of 12 months for theft of a motor vehicle. The Respondent referred to the totality of the Applicant’s antecedent history which commenced shortly after his arrival in Australia with various traffic offences. The Respondent also referred to the various records relating to the Applicant whilst he has been in prison and detention.
The Tribunal finds that the Applicant’s criminal offending is serious. He has a number of offences of dishonesty and violence, including possessing weapons. It is also of concern that the Applicant has been dealt with twice for breaching family violence intervention orders committed in 2015 and 2016. These offences particularly show a disregard for the law, court orders, and the safety and well-being of the Applicant’s own wife and children. A family violence intervention order remains in place. It is therefore a serious concern that the Applicant would, in his statutory declaration, declare that if released he, his wife, and children will relocate to Sydney to start again. Further, in cross-examination, the Applicant said that if he is released he wants his children and will go back to them. This is also alarming given the Applicant is clearly aware from recent conversation with his wife that she does not want him to contact her and the children, and will report him to police if he does so.
The Applicant’s offending on 7 January 2017 demonstrates an escalation in the seriousness of his criminal offending. It shows a disregard for the laws of Australia and the safety of those in the community who were travelling on Hume Highway and in and around the various suburbs through which he drove that day. Given the Applicant’s extraordinary speed and manner of driving, it is remarkable that no one was killed or seriously injured. That offending also shows a serious disregard for police who are charged with the responsibility of enforcing the laws of Australia and ensuring the safety of the community. It also demonstrates a disregard for the Senior Constable who approached the Applicant and then had to react quickly to avoid the likelihood of very serious injury or death.
The Applicant’s accusations about police lies seriously impugn his credibility and reliability. They demonstrate his deliberate refusal to accept responsibility for, and comprehend the gravemente of, his offending. The accusations made of police cannot be excused by lack of memory from drug abuse nor his diabetes, and reflects badly upon the Applicant’s character. These allegations were made in the hearing when sober and not under the influence of drugs or alcohol. It is alarming that the Applicant would make such an allegation which the Tribunal finds to be a lie.
On 14 February 2017, the sentencing Magistrate described the offences before the court as “extremely serious”.[31] Imprisonment is a sentence of last resort and should not be imposed unless the court is satisfied that all other sentencing options would not be appropriate. In this case, the court concluded that community rehabilitation was not suitable for the Applicant and the only alternative was a sentence of imprisonment.
[31] Exhibit H, G Documents, G19, page 116.
It is to the Applicant’s credit that he has remained drug-free and undertaken various courses with respect to his drug and alcohol abuse. However, the Applicant’s reported misconducts whilst at Goulburn Correctional Centre and Villawood IDC, although not tested by evidence before a court, is a further indication of the Applicant’s continued propensity for inappropriate behaviour. There was no evidence from Sister Helen or any other person outlining the Applicant’s contribution to assist those in detention, or that he has been the person intervening in conflict rather than a combatant in it. The Tribunal does not accept the Applicant’s evidence that he has been a model prisoner and detainee as he would have the Tribunal believe.
In all the circumstances, the Applicant’s criminal conduct is viewed as very serious. He is a recidivist offender. His offending includes offences of violence, breaches of family violence intervention orders directed to protect vulnerable family members, disregard for police officials in the performance of their duties, and placing police and members of the community at serious risk. That offending has escalated in seriousness over the period of the Applicant’s antecedent history. The Applicant also has a long history of drug and alcohol abuse which he says has occurred due to stress.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly 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).
It was agreed by the parties that the psychological report of Dr Borenstein[32] should not be relied upon by the Tribunal because it appears that the personal history and factual circumstances which underpin that report were not obtained with the benefit of an interpreter, and that some of its content may have been mistranslated. I agree with that submission. However, given the ease with which the Applicant found drugs in Sydney, his long history of drug and alcohol abuse and, in the absence of any further or other report about the Applicant’s psychological well-being, the Tribunal has no confidence that the Applicant will not return to illicit drug use or repeat offending of the nature committed previously. His past behaviour tends to demonstrate that there is a real risk of his return to the illicit drug use and reoffend, particularly in circumstances where the Applicant is under stress. This poses an unacceptable risk to the Australian community and is a matter upon which the Tribunal places great weight.
[32] See paragraph 40.
Conclusion: Primary Consideration A
On the evidence, the Tribunal finds that there is a substantial risk that the Applicant will engage in harmful behaviour if released into the community, such that it amounts to an unacceptable risk. Given the serious nature of his offending to date, and the trend in increasing seriousness, this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke the Applicant’s visa.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next primary consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is the father of two children, namely F, aged approximately 13 years, and E, aged 5 years. The Applicant submits the interest of each child are the same. The Tribunal accepts this submission.
A signed letter was received from the Applicant’s daughter, F, on behalf of herself and her brother.[33]
[33] Exhibit H, G Documents, G24, page 148.
The Applicant’s children reside in Melbourne with their mother, the Applicant’s wife. The Applicant reports to have maintained very regular contact with his children since being separated. This contact has been limited to telephone and Facebook telephone contact which is not prohibited by any order. The Applicant said his wife works and is unable to afford, to travel to visit the Applicant. The Applicant has submitted that when he was living in Melbourne he was very involved in his children’s upbringing and if the visa cancellation is revoked he, his wife and their children will relocate to Sydney.
The Applicant argues that it is unlikely either child is aware in any meaningful way of the Applicant’s prior offending history and, given the Applicant’s commitment to rehabilitation and continuing to access support services, it is submitted that he will have a positive impact on both children. Should the Applicant not be released and face indefinite detention, or such other consequential outcome, the only contact between the Applicant and the children will likely be by telephone because they live in Melbourne.
The Respondent argues that there is no satisfactory evidence before the Tribunal to determine the nature and extent of any ongoing communication the Applicant has had with his children whilst in detention, nor is there sufficient evidence to determine the nature and extent of the parenting role the Applicant played in his children’s lives before his incarceration. Further, given the Applicant’s offender history and involvement in drugs and violence, including the contraventions of the family violence intervention order, it is argued that the Tribunal can have no confidence that the Applicant would play a positive parenting role in the future.
HT is the Applicant’s younger brother and resides in Sydney. HT provided evidence by telephone. HT said that the Applicant’s son thinks that he, HT, is his father and called him ‘dad’. HT said that the Applicant’s son would not know his father if he saw him on the street, which is upsetting.
The fact that the Applicant’s son does not know, and would not recognise, his father is of concern. On the available evidence, despite the Applicant saying that he cared for and supported his children when living in Melbourne, at best from the time his son was one and a half years of age or even earlier, the Applicant abused drugs and alcohol. On the Applicant’s evidence he has not seen his children since early 2016. It is also noteworthy that the Applicant has, at the very least, been living away from his children since late 2015 when a family violence interim intervention order was in place. Further, at about the time of his daughter’s birth, until one to one and a half years before travelling to Australia, the Applicant was abusing drugs and alcohol. Hence, for the majority of his children’s lives he has been abusing drugs and alcohol.
The Tribunal does not accept on the available evidence that the Applicant has made any meaningful contribution to the lives of his children. It is noted that a family violence intervention order remains in force, albeit the terms of that order and the circumstances that founded the making of that order are not before the Tribunal. The Applicant correctly notes that, on the evidence before the Tribunal, there are no court orders in place restricting the Applicant’s access to his children. Further, there is no evidence of any allegation of abuse by the Applicant or inappropriate behaviour or neglect involving either child. However, the Applicant in evidence said that his wife does not want him to have any further contact with her or their children. This gives some indication about the continued acrimonious relationship.
At the time of his arrest on 7 January 2017, the Applicant was receiving New Start Allowance and had been unemployed for some time. Evidence about his work history is vague. He used that allowance to purchase drugs and alcohol. He was in a relationship with another woman whom, in evidence, he said he loved.
In all the circumstances and in the absence of any apparent strong parenting bond or role between the Applicant and his children, the Tribunal finds that the Applicant’s children are unlikely to be affected by the Tribunal’s decision.
The Applicant has had very limited relationship with his children and the relationship was non-parental in circumstances where the children were in the full-time care of their mother. The Applicant has had long periods of absence and limited meaningful contact with them, particularly whilst abusing drugs and alcohol and whilst in prison or in detention.
The Tribunal does not accept, on the available evidence, that the Applicant is likely to play a positive parental role future.
The only evidence about the impact the Applicant’s separation from his children has had on them is a letter from the Applicant’s daughter. She expresses concern about the Applicant’s absence and the absence of a father figure in that her brother will pick up “more feminine than masculine traits and my mother is not happy about it.” She said that she and her brother miss their father.
Conclusion: Primary Consideration B
For the reasons explained above, the Tribunal places only slight weight in favour of the Applicant.
Primary Consideration C: Expectations of the Australian community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and relevantly provides:
(1)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.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only 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.
The Applicant argues that his past criminal conduct is entirely unacceptable but that he has taken steps to ensure he does not engage in criminal conduct again and remains drug-free and sober. In that respect, he references the various programs to which I previously referred. Further, the Applicant submits that prior to his drug addiction he was a functioning and contributing member of the community. The Applicant references the terms of imprisonment and detention he has served and argues that the Australian community would not expect a person to be the subject of further detention on an indefinite or indeterminate basis. This is said to be particularly so given the Applicant’s rehabilitation efforts and period of abstinence from drugs or alcohol.
The Applicant further argues that the community would expect some tolerance to be shown of the Applicant given his background and personal tragedies including the death of his sister, uncle and brother as detailed above.
The Respondent argues that this primary consideration weighs against revocation and notes paragraph 13.3(1) of the Direction which indicates cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect such person not hold a visa or where a non-citizen has breached the trust of the Australian community in breaching its rules. Further, given the violent and reckless nature of the Applicant’s offending, the Respondent submits the Australian community would expect that the applicant should not hold a visa.
The Respondent referred to Mortimer J in YNQY v Minister for Immigration and Border Protection[34] who said:
“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”.
[34] [2017] FCA 1466.
The Respondent, in referencing paragraph 6.3(5) of the Direction, noted that the Applicant had only been in Australia for a short time, namely since 2012, and commenced his offending not long after his arrival. Hence, it was argued the Australian community would not expect that person who held such disregard for Australian laws to be granted or continue to hold a visa. The Respondent highlighted the seriousness of the Applicant’s offending, particularly in relation to the offences of 7 January 2017. The Respondent referenced the sentencing remarks of the learned Magistrate in relation to the 2017 offences which included:
“I am told that you came to this country as a refugee 5 years ago. If it is the case that you came here for a life better than the one that was available in your homeland, then you have gone out of your way to ruin your prospects and certainly, to the extent that this community gave refuge to you, you have repaid it badly”. [35]
[35] Exhibit H, G Documents, G6, page 37.
Considering the guidance in the Direction as to the Government’s view of the expectations of the community, and the evidence before the Tribunal of the Applicant’s recidivist offending and serious offending as outlined above, the Tribunal agrees with the submission of the Respondent, namely that the Australian community would expect the Applicant’s visa be cancelled. Other than the remote potential for the Applicant to play a positive role in his children’s lives in the future, the Tribunal is unable to identify much on the evidence to support an alternative conclusion as to the expectation of the Australian community.
Conclusion: Primary Consideration C
The Tribunal has taken into account that the Australian community may have greater tolerance for a person who has lived in Australia from a young age. That is not the case with the Applicant. He came to Australia at the age of 29. The Tribunal has also taken into account the personal circumstances that impacted upon the applicant when in Iran, and the stressors that were impacting upon his life. However, given the nature and seriousness of the offending, accompanied by his extensive drug and alcohol abuse, the Australian community would expect the visa to be cancelled. The Tribunal places great weight on this consideration in favour of the Respondent.
Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(1)International non-refoulement obligations;
(2)Strength, nature and duration of ties;
(3)Impact on Australian business interests;
(4)Impact on victims; and
(5)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under 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). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation 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.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
It is conceded by the Respondent that the Applicant is a person to whom Australia owes protection and he is likely to suffer significant harm if returned to Iran.
The Applicant, in his 2013 application,[36] has already been assessed as a person to whom Australia owes protection. However, this does not preclude the non-revocation of the mandatory visa cancellation.
[36] Ibid, G4, page 22.
It is therefore argued by the Applicant that where the Applicant is not returned to Iran, this would constitute refoulement as detention is likely to be indefinite given the Respondent has not made it clear how Respondent plans to comply with the statutory obligations.[37] The relevant statutory obligations are as follows:
[37] Exhibit A, Applicant’s Statement of Facts, Issues and Contentions dated 31 January 2019.
(i)197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
(ii)198 Removal from Australia of unlawful non-citizens
…
Removal of unlawful non-citizens in other circumstances
(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)The non-citizen is covered by subparagraph 193(1)(a)(iv); and
(b)Since the Minister's decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and
(c)In a case where the non-citizen has been invited, in accordance with section 501C or 501CA, to make representations to the Minister about revocation of the original decision--either:
(i)The non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)The non-citizen has not made representations in accordance with the invitation and the Minister has decided not to revoke the original decision.
Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E.
Prior to the existence of s 197C of the Act, an unlawful non-citizen in respect of whom Australia owed non-refoulement obligations faced the prospect of indefinite detention.[38] The Applicant argues that, following the introduction of s 197C of the Act, there is no power in the Act that permits indefinite detention, and therefore Direction 65 is inconsistent with the Act and should not be applied in so far as it says that the existence of non-refoulement obligations do not preclude non-revocation of the mandatory visa cancellation. The Applicant further submits that the prospect of indefinite detention should be properly considered as it is not good government and falls foul of international treaties.
[38] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, at [116].
The Respondent has, in short, submitted that the duty to remove a person from Australia only arises if it is reasonably practical to do so.[39] The Tribunal agrees with this submission. The period of detention is fixed until it is reasonably practicable to remove a person and, even where removal appears unlikely to be achievable within a foreseeable period, it does not mean that the removal cannot be implemented at some time in the future.[40] The Tribunal notes that in the Second Reading speech for the Bill introducing s 197C in 2014, the Minister stated ‘The government….rather seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims have been concluded’.
[39] DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.
[40] Al-Kateb v Godwin [2001] HCA 37.
The Respondent further submits that the Applicant may still be able to apply for a protection visa in the future pursuant to s 48B of the Act, may be the subject of a residence determination pursuant to s 197AA of the Act, or may be re-settled in a third country. Therefore, the Tribunal finds that the operation of ss 189 and 196 of the Act do not mean that if the mandatory visa cancellation is not revoked that the Applicant would necessarily face the prospect of indefinite detention.
In considering these other options, the Minister has had regard to other management options in determining whether or not to affirm the mandatory visa cancellation. The Minister has also had regard to the consequence that the Applicant may be in immigration detention for an indefinite or indeterminate period of time.
The Tribunal has had regard to the existence of the non-refoulement obligation and has weighed this factor against the seriousness of the Applicant’s criminal offending and other factors in making the decision. In particular, they include:
(a)The nature and increasing seriousness of the Applicant’s criminal offending, including abuse of drugs and alcohol when offending and generally;
(b)The Applicant’s disregard for Australian law generally, and orders of various courts including the contravention of the family violence intervention orders;
(c)The Applicant’s attitude towards police in the community, and his contention that the police fabricated evidence against him in his criminal charges; and
(d)The Applicant’s reported attitude towards authority whilst imprisoned and in immigration detention.
Conclusion: Other Consideration 1
The Tribunal accepts that the Applicant and members of his family may be adversely affected if the Applicant is subjected to an indefinite or indeterminate period of detention.
While it is not in contention that the Applicant is a person to whom Australia has non-refoulement obligations, the Tribunal finds the risk to the Australian community outweighs the concerns he has expressed about returning to Iran.
Having regard to the whole of the evidence before the Tribunal, this is a consideration that should be given limited weight in the Applicant’s favour, but not heavily so. The Tribunal finds this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa, but is not outweighed by the primary considerations weighing heavily against revocation.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely) must be examined.
In addressing 14.2(1)(a), the Applicant has resided in Australia since September 2012 and was granted a Class XB Protection visa in January 2013.[41] The Applicant’s offending commenced with road traffic offences in 2013 and he continued to offend from that time until he was arrested in 2017. His National Police Certificate[42] references offending of a criminal nature which commenced in approximately late 2015. Although the Applicant has lived in Australia for slightly more than six years, he has only spent approximately four years in the community, having been taken into custody on 7 January 2017.
[41] Exhibit H, G Documents, G4, page 22.
[42] Ibid, G5, pages 29-35.
In the Original Decision, the delegate said that the Applicant has been employed in factories in Australia and has licenses to operate forklifts, loaders, excavators and graders. He has also made some contribution to cleaning his local church and mosque, and made donations of clothes and other goods to charity. However, the only evidence on this topic is from the Applicant. It is not supported by other independent evidence. There is no evidence providing the detail and length of such employment. Having regard to the whole of the evidence, the Tribunal does not accept that the Applicant has positively contributed to the Australian community to any significant extent. Indeed, the Applicant used his New Start Allowance payments to fund his drug use.
In addressing 14.2(1)(b), the Applicant’s wife and children reside in Melbourne. His son is an Australian citizen and his daughter is a permanent resident. However, as referred to above, his links with his wife and children are tenuous and the Applicant has not seen his children in person since at least early 2016. Based on the whole of the evidence, it is not apparent that the Applicant has made any significant contribution to their lives.
The Tribunal received letters from the Applicant’s younger brothers, MT and HT. They also both gave evidence by telephone.
In his letter,[43] MT confirmed the Applicant fought for Ahwazi rights in Iran and fled to Australia to start a new life. He also confirmed the Applicant’s involvement in drugs which has changed him. He also said in his letter that it was lucky the Applicant was arrested soon after starting to take drugs, and he has now ceased since his arrest. He said the Applicant has not used drugs for three years.
[43] Exhibits C and C1, Statutory Declaration of MT and Letter of MT dated January 2019, respectively.
At the time of writing the letters, MT was residing in Sydney and working. He offered the Applicant accommodation at no cost and offered to pay him $200 a week to help him set up again. He visited the Applicant at Villawood IDC every two weeks. MT has now moved to Melbourne for work. He maintains his offer of accommodation and financial support should the Applicant wish to reside in Melbourne. He is willing to assist the Applicant in any way and MT now telephones the Applicant from time to time.
Prior to the Applicant being taken into custody, MT had not seen his brother for approximately three years and only spoke to him by telephone. In evidence, he acknowledged that he did not see the Applicant during the period in which he was taking drugs and offending.
HT resides in Sydney. In his letter,[44] he said that the Applicant has been away from him for three years but that he has been visiting the Applicant in Goulburn Correctional Centre and Villawood IDC every two weeks. His letter was in similar terms to that of MT, and he also said the Applicant has not used drugs for three years.
[44] Exhibit D, Letter of HT dated 23 January 2019.
In evidence, HT acknowledged that he had not seen the Applicant for three years because the Applicant and his family lived in Melbourne. Hence, he did not see the Applicant when under the influence of drugs. HT now travels to Melbourne every two months to visit the Applicant’s wife and children.
HT confirmed he will support the Applicant should he be released and will live with the Applicant wherever he wishes to reside.
It is noteworthy that neither MT nor HT provided evidence of specific plans for the future with respect to the Applicant, nor how either will support the Applicant to abstain from drugs and lead a meaningful life. At its highest, their evidence confirmed their continued love and support for the Applicant and their offer of residence should he wish it, and, in the case of MT, financial support.
Conclusion: Other Consideration 2
For those reasons above, the Tribunal has given less weight to this consideration and finds that this other consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
Other Consideration 3: Impact on Australian business interests
No evidence or argument was advanced in relation to the impact on Australian business interests such that it is of relevance in determining the application.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the Original Decision would have a negative impact on members of the Australian community or any victims of the Applicant’s criminal behaviour such that it is of any relevance in determining the application.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction considers the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing himself, and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Respondent contends that the Applicant, having left his home country as an adult, is now unlikely to face any social or cultural impediment. The Applicant also has family in Iran.
The Applicant submits that he suffers from diabetes, is on the methadone program and would be depressed if he was unable to see his children.
The Tribunal is not convinced there are significant impediments to the Applicant being removed in circumstances where the Applicant is familiar with the culture and language of Iran, having only arrived in Australia as an adult. Although it is accepted that the Applicant will be challenged in that he may not have ready access to the drug rehabilitation supports that he has now, there is no evidence to suggest that this cannot be overcome by the Applicant.
The Applicant’s parents, brother, and two sisters still reside in Iran. He also has four uncles, six aunts, two nieces/nephews, one grandparent and approximately 59 cousins who reside in Iran. Hence, the Applicant would have significant family support.
Conclusion: Other Consideration 5
The Tribunal is therefore of the view that this other consideration is of slight weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa and is not outweighed by the primary considerations weighing heavily against revocation.
There are no other considerations to be considered on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, I find:
(a)Primary consideration A weighs heavily in favour of the Respondent;
(b)Primary consideration B weighs slightly in the Applicant’s favour;
(c)Primary consideration C weighs heavily in favour of the Respondent; and
(d)The combined weight of the other considerations is such that none of them, alone or combined, outweigh the significant weight that I have attributed to the primary considerations.
I therefore find that, taking into account all of the considerations in the Direction, they weigh in favour of the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
131. I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
.....................[Sgnd]..................................
Associate
Dated: 19 February 2019
Date of hearing: 6 and 8 February 2019 Advocate for the Applicant: Alison Battison, Human Rights for All Advocate for the Respondent: Andrew Keevers, Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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