CWGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3325
•13 September 2021
CWGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3325 (13 September 2021)
Division:GENERAL DIVISION
File Number(s): 2018/7044
Re:CWGF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:13 September 2021
Place:Sydney
The decision under review is set aside and in substitution, the cancellation of the applicant’s visa is revoked.
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Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision – decision by Minister not to revoke cancellation decision - where review of decision by the Tribunal sought and decision affirmed – where Tribunal decision set aside on appeal and application remitted for fresh determination – where applicant does not satisfy the character test – whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Migration Act 1958 – where Direction No. 90 mandatory considerations considered – where other relevant matters arising on the facts and circumstances considered – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCAFC 152
SECONDARY MATERIALS
Direction No. 90: Migration Act 1958 Direction under Section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
13 September 2021
After amendments made by the Parliament to s 197C of the Migration Act 1958 (the Act), the present applicant, who meets the criteria for protection obligations, will not be returned to Iran, his country of origin, even if his present application for review of a decision not to revoke the cancellation of his protection visa is unsuccessful.
CWGF arrived in Australia in September 2012 at the age of 29 years, with his then wife and first child, a daughter, now aged 15. The applicant was born in Iran in 1983, so that he now is 38 years old. He was granted a Class XA Subclass Protection visa on 4 January 2013. His second child, a son now aged 6 was born in 2014.
The visa was the subject of mandatory cancellation on 5 April 2017 on the ground of his conviction for a number of offences. It is common ground that CWGF does not pass the character test. He made representations to the Minister seeking revocation of the mandatory cancellation of his visa, and the delegate refused to cancel the revocation on 19 March 2018, and again on 28 November 2018. He sought review in the Tribunal, and the decision to refuse to revoke cancellation of his visa was affirmed. That decision was set aside on appeal and the application was remitted to the Tribunal to be determined afresh, and these are my reasons for decision in the fresh determination.
If the reviewable decision is now affirmed, CWGF will be unable to apply for any other visa as a result of the combined operation of s 48A and s 501E of the Act. As a person now detained, he has no course available to him as of right to obtain his release. The respondent has put no evidence before the Tribunal indicating his willingness to consider granting any other visa to him.
He is presently in immigration detention in Western Australia, having formerly been detained at Villawood in New South Wales.
The applicant presently has a place reserved at Cyrenian House in Perth for long-term treatment if he is released from detention. His rehabilitation would be the object of the long-term treatment.
The exercise of discretion must take account of the mandatory considerations mentioned in Direction 90, and the representations made by him or on his behalf. The mandatory considerations mentioned in Direction 90 are non-exhaustive, in that the expressly mentioned considerations are to be supplemented by any other relevant matter which arises on the particular facts and circumstances of his case. In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; 267 FCR 628 Allsop CJ said at [3] :
where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people … Genuine consideration of the human consequences demand honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
See also the remarks of Allsop CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No. 2) [2021] FCAFC 152 at [2].
I have concluded for reasons set out below that if he is not now released from detention, his immigration detention is likely to continue indefinitely. That matter gives rise to humanitarian concerns. The resolution of the matter will largely depend on the weight properly to be given to humanitarian concerns which arise. Those considerations properly arise in the exercise of powers under s 501CA(4) and in any event were a significant part of the submissions made to the Tribunal on behalf of the applicant, thus corresponding to representations made by the applicant to the Minister in support of his request for revocation.
I will commence with an examination of the considerations expressly mentioned in the Ministerial direction currently in force, Direction 90. The effect of the Direction is to make certain issues mandatory to consider when exercising discretion, inter alia, under s 501CA(4) of the Act, that is, in considering in the case of a person who does not pass the character test, whether there is another reason why the cancellation should be revoked.
The Protection of the Australian Community
The protection of the Australian community is the first-mentioned primary consideration. It is mentioned both in the statement of principles and in clause 8 of the Direction. Amongst other things, a decision-maker must consider the nature of the harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the non-citizen engaging in such conduct.
The criminal record of the applicant is summarised as follows. In April 2017, he was sentenced at the Parramatta District Court to 16 months imprisonment with a 10 months non-parole period for offences described as follows: two counts of goods in personal custody suspected of being stolen, receive property stolen outside NSW, resist or hinder police officer in the execution of duty, use of offensive weapon to prevent lawful detention, police pursuit – not stop – drive at speed. He was disqualified from driving for three years and on two charges of driving recklessly/furiously or speed/manner dangerous. The speeds at which he drove were very excessive, and could have caused serious injury or death to others, although that did not occur. The excessive speeds seem to have been an attempt to avoid arrest. He had taken ice and morphine on that day.
On 15 August 2017 (while he was still in prison) he was convicted in Fairfield Local Court of driving a vehicle under the influence of drugs and disqualified from driving for 12 months.
On 27 October 2016 at Dandenong Magistrates Court a 12 month community correction order was made against him for possessing heroin and methamphetamine, possessing a controlled weapon and possessing a dangerous article in public place, theft from motor vehicle (two charges) handle/receive/retention stolen goods (three charges), negligently deal with proceeds of crime, unlawful assault, contravene family violence interim intervention order, fail to answer bail. The community protection order required assessment and treatment including testing for drug abuse or dependency.
On 22 March 2016 at Dandenong Magistrates Court he was sentenced to 19 days imprisonment and made subject to a community correction order for 18 months for the following offences: contravene family violence interim intervention order, intentionally destroy property, unlawful assault (two charges), assault with weapon, contravene a conduct condition of bail (4 charges).
The assault, contravention of family violence interim intervention orders and intentionally destroying property offences of 2016 were charges particularised as contravening the order by ‘punching the victim (wife) twice in the back of the head, assaulting the accused (sic) with a broomstick and damaging a minor (sic)’ (page 407 of Supplementary Tender Bundle). The assault charges related to the assault on his wife and his daughter. The other breaches of order related to him being within 5 metres of his wife and children’s residence. It appears from the Magistrates Court record that the Court acted on the information alone and a plea of guilty. Those charges appear to have led to the 19 day sentence of imprisonment, already served. The offences occurred on 5 February 2016.
The applicant denied the offences in evidence before the Tribunal. The plea of guilty is, of course, inconsistent with that evidence.
His wife made a statement dated 17 March 2020 in the following terms:
I … would like to vouch for ... I believe that he has learnt of his wrong doings and faced the consequences. I have forgiven him for what he did, and I do not bear any ill intentions towards him. He was good to my children and never lay a hand on them, he often spoiled my daughter and usually made her laugh. Although I have let go of the past, I do not wish to associate with him in the future. I want him to be free and to start a new life, one which I am not a part of. I want him to have legal visits with my youngest child, … he is five years old and just starting to understand more. I do not want him to grow up as unfortunate as my daughter, I would like him to see his dad because I believe it is important for a child to have both parent figures even if they are not together.
The statement that he ‘never laid a hand on them’ is inconsistent with the finding of his being guilty of the assault on his daughter.
The wife’s statement that she no longer wishes to have anything to do with the applicant and that she forgives him is consistent with his conviction for assault upon his wife.
A sentence of 19 days imprisonment (time already served) does not suggest that the offence was other than at the lower end of seriousness in the view of the Magistrate in Dandenong, although he or she only had the particularised charge information rather than any direct evidence of what occurred.
In June 2015 he was charged in the Australian Capital Territory of drink driving and the offence was proved without conviction. At the end of 2014 he had learned that his brother and uncle had died in Iran.
No remarks on sentence by the Parramatta District Court are included in the papers put before me. The Magistrate from whom an appeal was brought to the District Court in Parramatta remarked that there was a continuing drug problem, and described the offences for which he was re-sentenced in April 2017 as very serious. This also appears from the list of charges of which he was convicted.
On 31 August 2017 he completed the EQUIPS Addiction Program in prison.
On 6 November 2017, he was released on parole and was taken into immigration detention. Thus he has been in detention now for in excess of four and a half years after the 11 months spent in prison. His ready access to drugs in the community has been unavailable now for about five and a half years, although the records suggest that for some of that time he has had access to drugs.
While he was in Villawood, in May 2018 his parole expired.
In detention the applicant has been treated with insulin for diabetes, and was put on the methadone program at the end of 2017. At Yongah Hill he is still treated on the methadone program. He was also treated for depression, stress and insomnia. In March 2018 he commenced attending Narcotics Anonymous at Villawood.
The nursing notes record that in late 2019, while in Villawood, he smoked methamphetamines on occasions. I accept those records, despite a denial by the applicant in evidence.
The detention records at Villawood for December 2019 (including CCTV footage) record the applicant having a metal tap in his possession and swinging it towards other detainees, who then retaliated and tried to assault him. The applicant made a statement about this incident, and was cross-examined by the Minister’s solicitor. The applicant’s version of the facts leading to the incident was not contradicted by any evidence called by the respondent. The fact that the applicant was moved to Western Australia soon after the incident (at the beginning of 2020) and that since that time no recent incidents, including no evidence of drug taking in the last eighteen months, have been put before the Tribunal, suggests to me that the applicant was ill in late 2019, or that perhaps other detainees in Villawood provoked his aggression. The environment in detention is often said to be very harsh, including in recent reports by the Commonwealth Ombudsman. I do not assume that the incident of late 2019 is typical of conduct that can be expected of the applicant if he is released, particularly as his proposed stay in Cyrenian House is to be focused on his rehabilitation.
The applicant’s general behaviour when unaffected by drugs or alcohol does not suggest concern about his future behaviour. The evidence from Cyrenian House suggests that their long term treatment has tended to be successful, and if he is released, he is likely to be significantly assisted in his rehabilitation.
The records of IHMS refer to his depression because he cannot see his children and he will be motivated to do what he can to play a significant role with his children, which he can do now only by telephone calls, which he says are frequent with his children.
The likelihood of any recidivism appears to be dependent on whether he remains drug free and on any excessive alcohol intake. At the present time that will be dependent on unknown future events and the success of his treatment at Cyrenian House. More recent IHMS records show negative drug tests.
Cyrenian House requires participation and compliance with rules by persons under treatment. He may not have contraband drugs, alcohol or cigarettes, may exhibit no aggressive or violent behaviour toward staff or residents. Serious breaches of the rules will result in immediate discharge.
The applicant has the possibility of release into the community, where he may work and have meaningful contact with his children. If he offends again, he may face detention again, which has already been prolonged, and to which he has responded adversely. He will receive treatment in Cyrenian House which is unavailable to him in detention. The few attempts which he has made in gaol and in detention to rehabilitate himself have had limited success.
Family Violence Committed by the Non-citizen
Direction 90 stresses family violence as a primary consideration in making a decision under s 501CA(4). . While the applicant has been convicted of family violence offences, so far as can be seen, it is unlikely that he will have physical contact with his wife in the future. His contact with the children is something she welcomes in the case of his son, and it is not just his son whom he misses. There is also evidence from his brother’s wife that the daughter misses her father very much. The sister in law also said that the applicant’s wife told her that if the applicant comes out from detention he can see his kids and look after them and work and build his own life to stand on his own feet.
Best Interests of Minor Children in Australia Affected by the Decision
The children stand to benefit from their father’s contact if he succeeds in remaining drug free. If he remains in detention, that will be likely to adversely affect them as they grow up. It is in the best interests of each of them that the cancellation of their father’s visa be revoked.
Expectations of the Australian Community
The next relevant consideration is described as the expectations of the Australian community. Those expectations are stated in terms of government policy, which are not for the Tribunal to determine in this matter. This consideration will usually and does in this case favour refusal to revoke the cancellation of the visa.
Other Considerations
Among the expressly mentioned “other considerations” is non-refoulement obligations. Following an International Treaties Obligations Assessment it is accepted that such obligations are owed in respect of the applicant. As a consequence of amendments to s 197C of the Act earlier this year, he may not be returned to Iran unless he asks for that to occur. He will not make such a request.
His future, absent revocation of the cancellation is that he will remain in immigration detention, perhaps indefinitely, unless and until the Minister makes a non-compellable decision to give him another visa. As I have said there is no evidence of any such intention on the part of the Minister, who has opposed the present application to the Tribunal for revocation of the cancellation.
As to his links with the Australian community, he has two children, two brothers living in this country, an aunt, uncle, niece and nephew , and some friends, all of whom would be adversely affected by the continuation of his detention.
To those expressly mentioned considerations, the considerations mentioned by Allsop CJ quoted at the beginning of these reasons should next be examined.
The applicant lost his sister at a very early age. He found out about the death in Iran of a brother and an uncle, which devastated him. He has experienced a prison term and since has been deprived of his liberty on account of the cancellation of his permanent visa.
He has made attempts at his own rehabilitation from drug and alcohol dependence, without full rehabilitation. He misses his children and his liberty. He wants to work in the community and has the assurance of accommodation with a brother and sister in law, which live near his children. He wants rehabilitation, which will permit him to see them.
Fortunately for him, he has the services and concern of Ms Battisson, who has not only represented him in these proceedings but has arranged a place for him at Cyrenian House, which will provide long-term treatment of a kind he has clearly needed earlier in Australia.
It must seem to him to be a chance that he needs to take advantage of, not only for himself but for his two children.
To leave him in detention, where he receives treatment in the nature of maintenance, with drugs such as insulin and methadone, instead of allowing him to enter a long-term treatment facility where his rehabilitation may enable him to be reunited with his family, would not be to recognise the human consequences of his situation.
It is true that if he does not achieve freedom from drugs, he will face consequences including imprisonment and further cancellation of his visa. The difference from his situation earlier in his time in Australia is that he has experienced those things, and is likely to avoid them, with help from Cyrenian House and his family.
In my opinion, the correct and preferable decision, taking into account not only the matters mentioned in Direction 90, but also the dictates of good government and the matters to which Allsop CJ referred, is to revoke the cancellation of his visa.
I certify that the preceding 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 13 September 2021
Date(s) of hearing: 25 May 2020, 15 July 2020, 7 August 2020, 8 April 2021 Date final submissions received: 21 July 2021 Solicitors for the Applicant: Ms A Battisson, Human Rights for All Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
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