DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1520
•25 February 2020
DBKX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1520 (25 February 2020)
Division:GENERAL DIVISION
File Number: 2019/7976
Re:DBKX
APPLICANT
AndMinister for Immigration, Citizenship, Mirant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Tigiilagi Eteuati
Date of decision: 25 February 2020
Date of written reasons: 29 May 2020
Place:Brisbane
The decision under review is affirmed.
................................[SGD]........................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 –– decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration & Border Protection [2017] FACFC 66
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Omar v Minister for Home Affairs [2019] FCAFC 188
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZDCD v Minister for Immigration and Border Protection [2019] FCA 326
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
DFAT Country Information Report: Sudan dated 27 April 2016
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
29 May 2020
background
This is an application by DBKX (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 29 November 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Applicant’s Class XB Subclass 200 (Refugee) visa.
The Applicant is a 41 year old citizen of Sudan who was born in Sudan in 1978.
In 2006 the Applicant arrived in Australia aged 27 with his then wife and then four-year-old child as the holder of a Class XB Subclass 200 (Refugee) visa.
The Applicant began offending in 2008.
On 21 November 2018, the Minister’s delegate cancelled the Applicant’s visa under section 501(3A) of the Act. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of 12 months and was serving a full-time term of imprisonment.
On 4 December 2018, the Applicant sought revocation of the cancellation decision. On 29 November 2019, the Minister refused to revoke the cancellation of the Applicant’s visa. On 4 December 2019, the Applicant applied to this Tribunal for review of that decision. This matter was heard on 3 and 4 February 2020.
The Tribunal decided to affirm the non-revocation decision on 25 February 2020, the last day the Tribunal was permitted to make a decision on review: see section 500(6L) of the Act. As the Tribunal had not finished recording the reasons for its decision in writing, the Tribunal did not give written reasons for its decision on 25 February 2020. The Tribunal publishes these reasons on 29 May 2020. This approach is in accordance with the decision of the Full Court of the Federal Court in Khalil v Minister for Home Affairs[2019] FCAFC 151.
For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
issues
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
evidence
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A3 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R5. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision.
A summary of the evidence is provided below from paragraph 37 of these reasons.
does the Applicant pass the character test?
Section 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 7 August 2019 shows the following offences committed by the Applicant:
Court Court Date Offence Court Result Melbourne Magistrates Court 30 Aug 2018 Persist contra family violence NTC/order Sentenced imprisonment of 12 months concurrent. Contravene a conduct condition of bail Sentenced imprisonment of 1 month concurrent. Melbourne Magistrates Court 15 Aug 2018 Persist contra family violence NTC/order
Stalk another person (Crimes Act)
Sentenced imprisonment of aggregate
14 days concurrent.
Act and disruptive manner in police gaol Proven and dismissed. Melbourne Magistrates Court 18 Apr 2018 Burglary
Theft
Criminal damage (intent damage/destroy)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 1 month cumulative. Persist contra family violence NTC/order
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 2 months base sentence. Retention of stolen goods
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 1 month concurrent. Attempt to obtain property by deception
Contravene family violence intervention order
Use heroin
Sentenced imprisonment of aggregate 1 month concurrent. Contravene community correction order Proven. Breach community correction order of 27/12/2017
Sentenced imprisonment of aggregate 1 month concurrent. Melbourne Magistrates Court 1 Mar 2018 Obtain property by deception
Attempt to obtain property by deception
Sentenced imprisonment of aggregate 5 days concurrent. Melbourne Magistrates Court 22 Feb 2018 Contravene a conduct condition of bail (six charges)
Theft from shop (shopsteal) (three charges)
Commit indictable offence whilst on bail (three charges)
Sentenced imprisonment of aggregate 7 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 7 days concurrent. Melbourne Magistrates Court 2 Feb 2018 Possess controlled weapon without excuse
Possess prohibited weapon without exemption/approval
Sentenced imprisonment of aggregate 1 month concurrent. Theft from shop (shopsteal)
Sentenced imprisonment of aggregate 1 month concurrent. Sunshine Magistrates Court 29 Jan 2018 Theft from shop (shopsteal)
Sentenced imprisonment of 14 days concurrent.
Pay compensation $143.92
Melbourne Magistrates Court 16 Jan 2018 Possess controlled weapon without excuse Sentenced imprisonment of 14 days concurrent. Theft from shop (shopsteal) (four charges) Sentenced imprisonment of aggregate 42 days concurrent. Commit indictable offence while on bail (two charges)
Sentenced imprisonment
aggregate 1 month concurrent.
Melbourne Magistrates Court 27 Dec 2017 Contravene family violence safety NTC-INT harm/fear
Commit indictable offence whilst on bail
Resist emergency worker on duty (two charges)
Convicted and subjected to a community correction order for 18 months to perform 100 hours of unpaid community work. Melbourne Magistrates Court 7 Dec 2017 Contravene family violence safety notice (two charges)
Make threat to kill
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days concurrent. Melbourne Magistrates Court 11 Aug 2017 Theft from shop (shopsteal) (three charges)
Commit indictable offence whilst on bail (3 charges)
Contravene a conduct condition of bail (4 charges)
Fail to answer bail (2 charges)
Sentenced imprisonment of aggregate 14 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 14 days concurrent. Melbourne Magistrates Court 8 Jun 2017 Intentionally damage property (8 charges)
Commit indictable offence whilst on bail
Throw missile injure/danger/damage property
Sentenced imprisonment of aggregate 3 months. Melbourne Magistrates Court 2 Feb 2017 Theft from shop (shopsteal) (four charges)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail (three charges)
Attempt to obtain property by deception
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 3 months concurrent. Possess cannabis Convicted and discharged. Sunshine Magistrates Court 17 Oct 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 17 days concurrent. Melbourne Magistrates Court 13 Sep 2016 Theft from shop (shopsteal) (six charges)
Commit indictable offence whilst on bail (two charges)
Contravene a conduct condition of bail (two charges)
Drunk in a public place
Sentenced imprisonment of aggregate 14 days concurrent. Possess prohibited weapon without exemption/approval
Possess controlled weapon without excuse
Sentenced imprisonment of aggregate 14 days concurrent. Melbourne Magistrates Court 01 Sep 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 4 days base sentence.
Possess controlled weapon without excuse Sentenced imprisonment of aggregate 4 days cumulative. Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 3 days cumulative. Possess cannabis Convicted and fined $100. Melbourne Magistrates Court 6 May 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 21 days. Affray (common law)
Unlawful assault
Theft
Sentenced imprisonment of aggregate 60 days base sentence. Possess methylamphetamine Sentenced imprisonment of aggregate 30 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 30 days. Commit indictable offence whilst on bail Sentenced imprisonment of aggregate 30 days. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 30 days. Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days concurrent. Theft from shop (shopsteal)
Handle/receive/retention stolen goods
commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 14 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 14 days. Possess controlled weapon without excuse (2 charges) Sentenced imprisonment of aggregate 21 days. Threat to inflict serious injury (2 charges)
Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 42 days. Possess dangerous article in public place Sentenced imprisonment of aggregate 42 days. Deal with property suspected proceed of crime Sentenced imprisonment of aggregate 21 days. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 21 days. Melbourne Magistrates Court 26 Feb 2016 Theft from shop (shopsteal)
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Negligently deal with proceeds of crime
Sentenced imprisonment of aggregate 18 days concurrent. Melbourne Magistrates Court 8 Feb 2016 Theft
Commit indictable offence whilst on bail
Contravene a conduct condition of bail
Sentenced imprisonment of aggregate 18 days concurrent. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 18 days concurrent. Sunshine Magistrates Court 5 Oct 2015 Theft from shop (shopsteal)
Sentenced imprisonment of 14 days concurrent Heidelberg magistrates Court 23 Sep 2015 Theft from shop (shopsteal)
Sentenced imprisonment of 1 month concurrent. Commit indictable offence whilst on bail Sentenced imprisonment of 7 days concurrent. Use body armour without approval Convicted and discharged. Melbourne Magistrates Court 10 Sep 2015 Theft of a motor vehicle
Unlicensed driving
Attempted to commit indictable offence
Commit indictable offence whilst on bail
Sentenced imprisonment of aggregate 2 months concurrent. Possess suspected stolen goods Sentenced imprisonment of aggregate 2 months concurrent. Go equipped to steal/cheat Sentenced imprisonment of aggregate 2 months concurrent Melbourne County Court 2 Sep 2015 Breach of community corrections order of 22 August 2014.
Order cancelled. Sentenced imprisonment of aggregate 2 months suspended for 12 months. Melbourne County Court 12 June 2015 Theft Sentenced imprisonment of 90 days. Commit indictable offence whilst on bail Convicted and discharged. Melbourne Magistrates Court 1 May 2015 Contravene community correction order Proven. Possess amphetamine Convicted and discharged. Sunshine Magistrates Court 22 Aug 2014 Theft
Recklessly cause injury
Convicted and subjected to a community corrections order for 12 months. Contravene suspended sentence order Proven. Breach of suspended sentence of 5 December 2012 Suspended sentence fully restored to serve 2 months imprisonment. Robbery Sentenced imprisonment of 6 months concurrent Resist police (two charges)
Impersonate member of police force
With conviction, adjourned to 21 August 2015. Sunshine Magistrates Court 5 Dec 2012 Unlawful assault
Criminal damage (intent damage/destroy)
Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 6 months. Sunshine Magistrates Court 31 July 2012 Unlawful assault Sentenced imprisonment of 4 months concurrent. Intentionally cause injury Sentenced imprisonment of 6 months base sentence. Theft from shop (shopsteal)
Shop theft - less than $600
On each charge, sentenced imprisonment of aggregate 2 months concurrent. Intentionally cause injury Sentenced imprisonment of aggregate 6 months 4 months to be served concurrently. Theft Sentenced imprisonment of aggregate 2 months 1 month to be served concurrently Possess heroin
Possess cannabis
Convicted and discharged. Use heroin Convicted and discharged. Breach of suspended sentence of 23 February 2011.
Suspended sentence wholly restored to serve 2 months imprisonment. Breach of suspended sentence of 15 December 2010
Suspended sentence wholly restored to serve 1 month imprisonment. Melbourne Magistrates Court 18 Jul 2012 Burglary
Theft
Criminal damage (intent damage/destroy)
fail to answer bail
Sentenced imprisonment of aggregate 14 days concurrent. Sunshine Magistrates Court 16 Sep 2011 Possess cannabis With conviction fined $100 with $44 statutory costs. Sunshine Magistrates Court 10 Jun 2011 Shop theft - less than $600 With conviction, fined $100. Melbourne Magistrates Court 31 May 2011 Recklessly cause injury (two charges)
Unlawful assault (two charges)
Theft from shop (shopsteal) (two charges)
Deal property suspected proceed of crime
Sentenced imprisonment of aggregate 213 days concurrent. Sunshine Magistrates Court 23 Feb 2011 Theft from shop (shopsteal)
Fail to answer bail
Use heroin
Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Deal property suspected proceed of crime Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Possess controlled weapon without excuse Sentenced imprisonment of aggregate 2 months concurrent. Sentence wholly suspended for 12 months. Possess anything without authority police gaol With conviction, fined $100. Failure to comply with CBO Proven. Breach of community based order of 16 June 2010 Sentenced imprisonment of aggregate 1 month concurrent. Sentence wholly suspended for 12 months. Sunshine Magistrates Court 17 Dec 2010 Theft With conviction, fined $400. Melbourne Magistrates Court 15 Dec 2010 Theft from shop (shopsteal)
Sentenced imprisonment of aggregate 1 months concurrent. Sentence wholly suspended for 2 years. Sunshine Magistrates Court 16 Jun 2010 Theft from shop (shopsteal) (five charges)
Theft (two charges)
Fail to answer bail (three charges)
Shop theft less than $600
deal property suspected proceed of crime
Convicted and subjected to a community based order for 12 months. Go equipped to steal/cheat
possess controlled weapon without excuse
Convicted and subjected to a community based order for 12 months. Deal property suspected proceed of crime Convicted and subjected to a community based order for 12 months. Albury Local Court 2 Jun 2008 Never licensed person drive vehicle on road - first offence Fined $150.
I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of 12 months.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(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.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(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.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or 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 or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses
The following is a summary of the evidence in this matter. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the Applicant at the hearing in response to questions in cross examination and from the Tribunal. The summary also includes information which was in documents before the Tribunal.
The Applicant
The Applicant was born in Sudan in 1978. The Applicant claimed that his family were originally from the “north of west Sudan” but that he was raised in Khartoum. The Applicant claimed that his family were Muslim. In a statement to the Department he indicated that he converted from Islam to Orthodox Christianity a number of years ago. At the hearing the Applicant indicated that he was a Muslim and had never converted to Christianity. He indicated that the lawyers who had assisted him in drafting his statement had incorrectly recorded that he had converted from Islam to Christianity. The Applicant speaks Sudanese Arabic and English.
At the hearing the Applicant indicated that he was a member of the majority ethnic group of Arabic Sudanese. The Applicant indicated that he was the youngest of five children. His two sisters had relocated to the Netherlands but had now returned to Sudan. The Applicant’s two brothers had also relocated to Europe but one of them had returned to Sudan where he operated a business. The Applicant indicated that all of his siblings were married and had families.
The Applicant indicated that his father had passed away when he was 14 or 15. He said that his father had been a member of the Sudanese army. He said that his father had been killed during the Sudanese Civil War by a rebel faction. The Applicant indicated that before his father passed away he would often visit his father on a military base near the Sudanese border. He said that he became familiar with a number of his father’s colleagues.
The Applicant indicated that after his father had passed away, his father’s colleagues had offered him some paid employment for three months over one school holiday period. The Applicant indicated that that employment consisted of security work on a military base.
The Applicant indicated that he attended school up until the last year of secondary school. He indicated that in his last year of school, when he was around 17 years old, the Applicant travelled by bus or train from his family home in Khartoum to the Sudanese border with Egypt. The Applicant indicated that he waited at the border for a day before crossing the border with approximately 20 other people. He indicated that his passport or ID card was stamped by Egyptian authorities when he entered Egypt.
The Applicant explained that he had left Sudan for Egypt as he did not want to serve compulsory military service in Sudan. The Applicant explained that, at the time, people who are attending high school were expected to serve a period of compulsory military service after their final year in high school. He indicated that both of his brothers had previously undertaken compulsory military service. He said one of them was required to fight during the Civil War.
The Applicant indicated that once in Egypt he was joined by his mother. The Applicant indicated that he found employment driving trucks. He said that he met and married his former wife while in Egypt. He said that his wife was an Egyptian. The Applicant indicated that they had a child together who was born in 2002. The Applicant indicated that his mother returned to Sudan while he was still in Egypt. The applicant said that when he was in Egypt he had heard that his uncle had been killed in the war. The Applicant indicated that he, his wife and child were assessed by both United Nations and Australian officials and were each granted Subclass 200 Refugee visas. The family arrived in Australia in May 2006.
At the hearing the Applicant indicated he did not fear being harmed if he were to return to Sudan. He indicated that there had been a change in government and he did not fear harm from the current government or anyone else. Instead, the Applicant indicated that he was concerned that he would not be able to receive adequate medical care for his various ailments and mental illness in Sudan.
The Tribunal notes that the Applicant’s evidence at the hearing before the Tribunal about his life in Sudan was very different from the evidence that he had provided to the Department.
The Applicant had provided a statement to the Department dated 2 November 2019. At the hearing before the Tribunal the Applicant indicated that that statement had been prepared by his former lawyers. He told the tribunal that he had told his lawyers what he had told the Tribunal and they created the statement. The Applicant said that his lawyers had never read the statement back to him and he was therefore unsure of its contents.
In that statement it was claimed that the Applicant had converted to Christianity from Islam in Australia are number of years ago. At the hearing the Applicant indicated that he had never left Islam and that his written statement was incorrect in this regard.
In the statement the Applicant claimed that his father was killed by the army when the Applicant was 14 years old. In his statement the Applicant claimed that his father was a commander in the North Sudanese army for most of his life. He claimed that his father and uncle started talking about the government and wanting to change the system. He claimed that they started becoming politically active and joined a political group. He said that shortly afterwards his father was killed.
At the hearing, the Applicant did not mention anything about his father becoming politically active or joining a political group or wanting to change the system. Rather, the Applicant indicated that his father was killed by a rebel faction who was fighting against the Sudanese army during the Sudanese Civil War. He said that he was told this by a cousin.
In his statement the Applicant indicated that when he was 15 years old he was taken from his school with a number of other boys and placed in a military camp near the border of Ethiopia and Sudan. He indicated that life in the camp was very difficult and that there was not enough food. He indicated that they were first forced to work. He indicated that the younger boys like him were forced to work around the camp area whereas the older boys were sent to fight. He claimed that he contracted malaria while in the camp. He indicated that a friend had been forced to fight was injured by a rocket propelled grenade. He indicated that he was scared that he would be shot by soldiers if he didn’t do his work properly. He indicated that he was scared that he would be forced to become a soldier and fight on the frontline.
In his statement the Applicant indicated that he was eventually able to escape from the military camp with about 20 other boys. He indicated that there were picked up by UN soldiers and eventually transferred to a refugee camp in Egypt.
In his statement the applicant said the following regarding his fear of returning to the Sudan:
“I don’t know what is happening in Sudan now, only what I see in the news. In Sudan they are going very bad and they are killing people. I don’t know what they would happen to me. I am very worried I would be targeted because of my father and uncle. I have no support in Sudan and don’t think there are any support agencies. I would not be able to get the medication I need and I would not be able to pay for it. I would not be able to earn money as I am too sick to work. I worry that I wouldn’t be able to live.
…
I could not survive if I was returned to Sudan, I would have no one and I would not know how to access my medical treatment. I fear that I will end up homeless, very unwell and possibly dead.”
In the personal circumstances form which the Applicant completed as part of his request for revocation of the mandatory cancellation of his visa, the Applicant indicated that he had previously been in the Sudanese army and fled the army. He indicated that, as a result, he would be tortured and killed if he returned to Sudan.
It was put to the Applicant that his claims in his written material regarding his life in Sudan were significantly different from the claims that he made at the hearing before the Tribunal. The Applicant confirmed that the claims that he made at the hearing were correct and that the claims written by his former lawyers in his written material were incorrect. He indicated that his lawyers must have misunderstood most of the claims that he made or misinterpreted what he had been saying. The Tribunal accepts the evidence given by the Applicant at the hearing about his life in Sudan before he arrived in Australia. That evidence is to be preferred over the evidence in his written material which was written by others and was never read back to the Applicant.
The Applicant indicated that, upon arriving in Australia, the family had difficulties integrating into the Australian community.
The Applicant indicated shortly after he arrived in Australia he worked as a trolley collector at a shopping centre. He indicated that between 2009 and 2010 he worked full-time as a truck driver.
He indicated that he and his wife would often argue and eventually separated in around 2008. The Applicant indicated that he and his wife divorced in 2010. The Applicant said that he had not had any contact with his daughter since 2010 or 2011.
The Applicant indicated that he first displayed symptoms of schizophrenia when he was living in Egypt. He said that he started hearing voices, and that he was very confused and frightened by this. The Applicant indicated that he was diagnosed with schizophrenia in Australia when he was 28 years old. The Applicant indicated that he first received mental health treatment in Melbourne in about 2007.
The Applicant indicated that his mental health deteriorated in around 2010. He said that his mental health was so bad that he had to leave his job as a truck driver. He said that the breakdown of his marriage in 2010 also negatively affected his mental health. The Applicant indicated that his mental health was probably at its worst during times when he was homeless. The Applicant indicated that he had been admitted to a mental health hospital but that he escaped the mental health hospital in 2013 when he found out that his mother had passed away. The Applicant indicated that after he left the hospital he lived on the street until the police eventually took him back to the hospital.
The Applicant indicated that he had been an inpatient at hospital for at least a couple of months every year and he had electroconvulsive therapy a number of times. The Applicant indicated that he was “ok” when he took his medication and indicated that he intended on continuing to take his medication. The Applicant indicated that when he was in jail he had “depo injections” every two weeks and was given tablets to take. The Applicant also indicated that when he was in jail he saw a counsellor and a social worker, and indicated that this helped him remain calm. He indicated that he had no one close to him and he lost all his family.
The Applicant indicated that he wanted to continue to receive assistance and build a strong life for himself and “be there” for his daughter.
The Applicant indicated that he also has hepatitis A, B and C and HIV. He said that he was diagnosed with these ailments about three years ago. He indicated that it was very difficult to deal with these health problems. The Applicant provided information as to the medication that he was taking for his various illnesses.
The Applicant also indicated that when he was 24 years old he had a car accident in Egypt. The Applicant indicated that this accident resulted in him sustaining a brain injury and that he had been hospitalised for three months because of the accident. He said that in addition to the brain injury his hand and leg were broken in the accident. The Applicant indicated that “St Vincent’s” investigated the brain injury in 2010 or 2011. He said that the brain injury that he sustained has resulted in impaired thinking and that he has trouble remembering and suffers from headaches.
The Applicant indicated that most of his offending involved stealing alcohol or stealing to obtain drugs. He said that he could not remember the details of most of his offences as his mental health was particularly bad while he was offending.
The Applicant indicated that he started using marijuana and alcohol in Egypt before he arrived in Australia. This was contrary to the evidence in his statement which indicated that he only began drinking alcohol when he was living on the street in Australia in order to keep warm. He indicated that he began using methamphetamine in 2012 and that he began using heroin in 2016 or 2017. It was pointed out to the Applicant that he had been convicted of using heroin in 2011 in circumstances with the police found the Applicant in a public toilet with a syringe full of heroin inserted into his right arm. The Applicant said that he was injecting methamphetamine rather than heroin.
The Applicant indicated that he had not asked for help in the past because it was shameful and his culture to seek help. He indicated that he now felt sorry for the crimes that he had committed. He said that if he were allowed to remain he would stay away from people who take drugs and drink. He indicated that he would stay on his medication and seek help from others.
The Applicant said he can now recognise when he is ill and look after himself. He indicated that he had never meant to hurt anyone and was sorry for what he had done in the past. He indicated that when he was offending he did not really know what he was doing owing to his mental health problems. He indicated that he now feels better as he no longer consumes drugs. He indicated that he was able to cease drugs because of the support that he had received in detention. He indicated that he did not want to return to drugs and offending, that he wanted to have a new life and would take his medication and refrain from drug and alcohol abuse.
The Applicant indicated that he was very sorry for his crimes and accepted responsibility for his offences. He indicated that he did not believe that he now presented any risk to the community. The Applicant indicated that he believed that he had the understanding and maturity to now stay on the right track, to take his medication and to move on with his life.
In his written statement the Applicant indicated that he has very few family members living in Sudan. He indicated that he had one “adopted half-sister” there who was in her late 40s. He indicated that he had spoken with her a couple of times over the years. He said that prior to his last period in jail he had monthly contact with one of his sisters in the Netherlands.
However, as previously mentioned, at the hearing the Applicant indicated that he has two sisters and a brother who currently live in Sudan. The Applicant also indicated that he has many extended family members who live in Sudan.
In his application for re-instatement, the Applicant indicated that if he was removed from Australia that this would negatively impact upon his former partner and their child. The Applicant indicated that although he and his ex-partner were no longer together that they were still friends and shared responsibility for their daughter. The Applicant indicated that he supports his ex-partner and daughter by providing them with some of the money that he receives through social security payments. He also indicated that his wife and daughter would be upset if he were return to Sudan because they knew that he would be harmed if he was returned to Sudan.
Although in his statement the Applicant indicated that he had not seen his daughter for two or three years, in the personal circumstances form he indicated that he had seen his daughter every day since she was born. The Applicant indicated that his daughter would be greatly negatively affected as he was always there for his daughter and encouraged her to be positive and to do well. At the hearing the Applicant said that he had not seen his daughter since 2010 or 2011.
Criminal History
The Respondent’s solicitor asked the Applicant questions about a number of his offences.
The Respondent referred to police reports which have been provided to the Applicant well in advance of the hearing. One of the difficulties with relying on these reports was that it was difficult to match police reports of offending behaviour with the Applicant’s official criminal record. This was especially so because for the most part the Applicant could not advise the Tribunal about the circumstances leading to individual offences in his criminal record.
The Applicant admitted that he had numerous crimes of dishonesty including theft and stealing and had committed robbery. He also admitted to regularly carrying weapons which he said that he did for his protection while living on the street. The Applicant admitted that he had been convicted of several offences relating to his unlawful possession of weapons.
One of the police reports which was put to the Applicant was that in 2010 he assaulted three people including a female on a train and a train station. It appears that the Applicant was convicted of offences of recklessly cause injury and unlawful assault in May 2011 for these offences. The Applicant indicated that he remembered this occasion. He said that he and some friends had been drinking and that he had an argument with others on the train. He said that a fight broke out where he admitted to assaulting others.
The Applicant admitted that he had been charged with offences relating to him attempting to take a large knife and hatchet into a court. He also admitted that he had been in an altercation during which he produced a pair of garden sheers with which he threatened the victim.
The Respondent’s solicitor put to the Applicant a number of police reports which indicated the Applicant had made threats against others including his former partner including by using a knife and other weapons. The Applicant denied that these incidents occurred.
primary consideration A: Protection of the australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as 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;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed over 200 offences in Australia, including numerous violent offences. The Applicant has been sentenced to periods of imprisonment on 30 of the 37 times the Applicant has appeared before a Court in Australia.
The Applicant’s violent offences include offences of robbery, affray, make threat to kill, multiple threats to inflict serious injury, multiple unlawful assaults, multiple recklessly cause injury, multiple intentionally cause injury and throw missile. The Applicant has also been convicted of multiple and persistent breaches of family violence orders. In addition, the Applicant has been convicted of over a dozen weapons related offences. The Applicant has been convicted of multiple drug offences. The Applicant has been convicted of dozens of property related offences and other offences of dishonesty.
It is clear that some of the Applicant’s violent offending, including an assault on a woman on a train and breaching family violence orders made for the protection of his ex-wife, involve violence against women which the direction indicates are to be viewed very seriously.
The Tribunal has taken into account that most, if not all of the Applicant’s offences, have been linked to drug and alcohol use, and mental illness. The Tribunal has also taken into account the Applicant’s claimed poor mental health during his offending and that the Applicant suffers from schizophrenia and has a brain injury. The Tribunal has also considered that the Applicant did not have stable accommodation available to him during much of the time when he was offending. The Tribunal considers that these matters may provide part of an explanation for the Applicant’s offending. However, the Tribunal does not consider that these issues, of themselves, alter the nature of the Applicant’s offending, or its seriousness.
As is apparent from his criminal record that the Applicant has offended very frequently and it appears that his violent offending has increased in seriousness.
While it is difficult to gauge the cumulative effect of the Applicant’s repeated offending, it is safe to say that the Applicant’s violent offending has resulted in many members of the Australian community being subjected to violence, with the resulting physical and psychological effects this kind of violent offending brings.
The Tribunal finds that the Applicant’s violent conduct is very serious. Over a significant period of time the Applicant has committed violent offences against numerous members of the Australian community.
The applicant’s other offences, including his numerous offences of dishonesty are less serious than his violent offences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of the Direction provides that in considering the risk to the Australian community presented by an Applicant, the Tribunal must have regard to the two sub-considerations listed in paragraph 13.1.2(1) of the Direction cumulatively. They are:
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 reoffending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
The Tribunal finds that, if the Applicant were to re-engage in criminal conduct similar to his violent conduct, that is, if he were to attack members of the Australian community it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences.
If the Applicant were to re-engage in criminal conduct similar to his crimes of dishonesty, it is likely that members of the community will be unlawfully dispossessed of their property.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no expert evidence before the Tribunal as to the likelihood that the Applicant will reoffend.
The Tribunal has taken into account that the Applicant completed the Moderate Intensity Violence Program on 30 May 2019 and completed the Help the Mind Module on 4 April 2019. The Tribunal has also taken into account the Applicant’s claims that he is now drug and alcohol free and that he will seek out appropriate treatment for his schizophrenia if he is allowed to remain in Australia. The Tribunal has also taken into account that the Applicant has claimed that he is remorseful for his conduct and will not reoffend again in Australia.
The Tribunal has taken into account that the Applicant has suffered from schizophrenia, a brain injury and has a history of psychosis, had auditory hallucinations and persecutory delusions. The Tribunal accepts that the Applicant has been admitted to hospital on a number of occasions owing to his mental health problems.
The Tribunal has taken into account a letter from an Imam at the Brisbane Immigration Transit Accommodation Centre (BITA) which appeared to indicate that the Applicant had been attending Friday prayers at BITA.
The Tribunal has placed significant weight on the Applicant’s lengthy and repetitive criminal history. The Applicant has committed over 200 offences between 2008 and 2018. As mentioned previously, the Applicant has been sentenced to periods of imprisonment on 30 of the 37 times that he is appeared before a court. It does not appear that the Applicant has been at all deterred by the sentences of imprisonment handed down over the years.
The Tribunal has taken into account that the Applicant has claimed that he continued to revert to drug and alcohol use and failed to take his medicine for his mental illness. The Applicant has claimed that his substance abuse and his failure to take his medicine have resulted in him repeatedly returning to crime. Indeed, the Applicant claimed that he has previously undertaken a drug and alcohol rehabilitation program. However, the Applicant admitted that after completing the program, he returned to drugs and alcohol and continued to offend. The Applicant has claimed that he was using drugs and alcohol up until he was last imprisoned in 2018.
The Tribunal has taken into account that it appears that the Applicant has little to no support in the community. He has been living on the streets and does not appear to have the support of any friends. He had a wife but they divorced in around 2010. Family violence orders have been issued for his ex-wife’s protection from the Applicant. The Applicant has persistently breached those family violence orders. The Applicant also has a 17-year-old daughter with whom he has had no contact for about a decade.
The Applicant has had no employment for most of the time that he has been in Australia. The Applicant has indicated that the reason that he has not been employed is because of his mental health problems.
In those circumstances, it appears that if the Applicant were allowed to remain in Australia, it is likely that the Applicant would remain homeless, without the support of friends or family and is unlikely to be employed. The Tribunal considers that there is a very real chance that the Applicant will return to drug and alcohol use, and will fail to take his mental health medication.
The Tribunal is satisfied that given the Applicant’s intensive criminal history and his failure to cease offending despite being subjected to numerous periods of imprisonment for his offending, and in circumstances where the Applicant is likely to be homeless and without any support from friends or family and without employment, it is almost certain that the Applicant will continue to commit offences including violent offences against members of the Australian community if he is allowed to remain in Australia.
Conclusion: Primary Consideration A
The Tribunal has found that the Applicant’s violent conduct is very serious. The nature of the Applicant’s offending involves repeated violent conduct against numerous members of the Australian community.
The Tribunal has found that, if the Applicant were to commit further violent offences in Australia, it is likely that the nature of the harm to victims would be that they would suffer from violent crime including actual or grievous bodily harm with potential lifelong physical and mental consequences and possibly death.
The Tribunal has found that if the Applicant were to commit further crimes of dishonesty in Australia, it is likely that members of the Australian community would be deprived of their property.
The Tribunal has found there is high likelihood that the Applicant will engage in violent crime in the future if he is allowed to remain in Australia.
After giving thoughtful and thorough consideration to this primary consideration, the Tribunal concludes that the primary consideration of protection of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. The Tribunal considers that the protection of the Australian community and its members are best served by the Applicant no longer being present in Australia.
The Tribunal attributes significant weight against revocation of the cancellation of the Applicant’s visa to the primary consideration of the protection of the Australian community.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.
Paragraph 13.2(4) of the Direction provides a list of factors which must be considered under this consideration where relevant. These are:
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 non-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.
In the statement that the Applicant provided to the Department the Applicant indicated that he had a 17-year-old daughter in Australia. At the hearing the Applicant indicated that he had not spoken with his daughter since around 2010 or 2011. Later during the hearing the Applicant indicated that he had spoken to his daughter by mobile telephone more recently but that his daughter was currently living in Egypt where she had been for some time.
Of course, if the Applicant’s daughter is in Egypt then her best interests would not be treated as a primary consideration under the Direction. For the benefit of the Applicant the Tribunal is willing to find that the Applicant’s daughter is currently living in Australia. This finding was also supported by some of the material in the police documents.
The Tribunal finds that the Applicant has had no contact with his daughter for around a decade. The Tribunal rejects the Applicant’s assertion later in the hearing that his ex-wife’s partner allows the Applicant to speak with his daughter on his mobile telephone. That claim does not appear to be credible in circumstances where the Applicant is subject to a family violence order for the protection of his ex-wife, his daughter’s mother, with whom she resides. It is also inconsistent with the Applicant’s earlier evidence that he had not spoken with his daughter since about 2010.
The Applicant has not had a parental role in his daughter’s life for about a decade. She has not visited him in prison or in immigration detention.
The Tribunal notes that the Applicant has been convicted of breaching the family violence order issued against the Applicant for the protection of his ex-wife on a number of occasions. The Tribunal finds that the Applicant’s persistent breaches of the family violence order would have resulted in great distress to the Applicant’s ex-wife. The Tribunal has considered that this would be likely to have a negative impact on the Applicant’s daughter.
The Tribunal has found the Applicant is highly likely to reoffend if he is allowed to remain in Australia. If that offending included continued breaches of family violence orders, the Tribunal considers that this would be detrimental to the Applicant’s daughter.
There is no substantive evidence before the Tribunal which indicates that the Applicant currently has any significant relationship with his daughter, or that his daughter wishes to re-establish any relationship with the Applicant. Given the Applicant’s lengthy criminal history including breaching family violence orders relating to the Applicant’s ex-wife, this is not surprising.
Given that the Tribunal has found that the Applicant is unlikely to be employed if he remained in Australia, the Tribunal finds that it is unlikely that the Applicant will be able to provide any financial support for his daughter.
There was some evidence, upon which the Respondent sought to rely, which indicated that the Applicant may have harmed his daughter when she was very young. However, as the Applicant was not found guilty of any such offences, and indeed was not charged with such offences, the Tribunal will place no weight on that evidence.
However, the Tribunal finds that the removal of the Applicant from Australia will, in all likelihood, result in the end of any chance that the Applicant’s daughter will ever be able to have contact with her father again. In the absence of any evidence from the Applicant’s daughter, it is not clear whether she wishes to re-establish a relationship with her father at some point in the future. In those circumstances, the Tribunal is willing to find that it is in the best interests of the Applicant’s daughter that the Applicant be allowed to remain in Australia so that she has the opportunity to re-establish a relationship with him if she so chooses.
Having said that, the Tribunal considers that this issue is finely balanced, given that the Tribunal has found that the Applicant is likely to continue to reoffend if he is allowed to remain in Australia.
In those circumstances, the Tribunal has attributed only slight weight to this consideration in the Applicant’s favour.
Conclusion: Primary Consideration B.
The Tribunal finds that the best interests of the Applicant’s daughter weigh slightly in favour of revocation of the cancellation decision.
The Tribunal attributes slight weight to the primary consideration of the best interests of minor children in Australia in favour of setting aside the decision not to revoke the cancellation of the Applicant’s visa.
primary Consideration C: The expectations of the Australian Community
Subparagraph 13.3(1) of the Direction states:
“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.”
How are those expectations determined?
The decisions of Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500 establish that:
·the concept of community expectations is not a matter to be measured as though it is a provable fact. It is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is an assessment of community values made on behalf of that community;
·it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations; and
·the Government’s views in relation to community expectations are to be found in the Direction itself. It is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community, as it has in the Direction, and for the Tribunal to act on that statement.
These principles were confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction, including the principles in subparagraph 6.3(5) and (7) of the Direction, can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
An application for special leave to appeal to the High Court from the decision of the Full Court was dismissed on 24 April 2020.
In the present case, the Applicant failed to meet the expectation of the Australian community to abide by the law: see subparagraph 13.3(1) of the Direction. This expectation was breached when the Applicant committed numerous offences between 2008 and 2018.
The Tribunal has considered and taken into account the principles in paragraph 6.3 of the direction including:
·the principle that the Australian community expects that the Australian government should cancel the visas of non-citizens if they commit serious crimes in Australia (see subparagraph 6.3(2) of the Direction); and
·that a non-citizen who has committed a serious crime should generally expect to be denied the privilege of staying in Australia (see subparagraph 6.3(3) of the Direction).
The Tribunal has considered that Australia may afford a higher level of tolerance to 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 (see subparagraph 6.3(5) of the Direction). In the present case, the Applicant arrived in Australia in 2006 as a 27-year-old adult. He began offending in 2008 soon after he arrived. The Applicant has not lived in Australia for most of his life or from a very young age. In those circumstances, the Tribunal considers that the Applicant should not be afforded a higher level of tolerance.
There is very little significant evidence before the Tribunal that the Applicant has made a positive contribution to the Australian community (see subparagraph 6.3(7) of the Direction). There is evidence that he has had some limited employment in Australia shortly after arriving in Australia.
Conclusion: Primary Consideration C
Overall, given the serious nature of much of the Applicant’s offending and the high risk that he will reoffend, the Tribunal finds that the consideration of expectations of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa.
The Tribunal places significant weight on this consideration in favour of non-revocation of the cancellation of the Applicant’s visa.
Other Considerations
While the list of “other” considerations in the Direction is not exhaustive, there are five “other considerations” named in the Direction under paragraph 14(1):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
(a) International non-refoulement obligations and harm or hardship to the Applicant.
Paragraph 14.1 of the Direction provides:
“(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 non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA 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 W R) visa (section 501 E 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.”
As matters stand, there are currently conflicting authorities in the Federal Court as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa. It was thought that this issue would be settled by a five-member bench of the appellate jurisdiction of the Federal Court in Minister for Home Affairs v Omar [2019] FCAFC 188 (“Omar”).
In the Omar appeal, a Full Bench of the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) found that they did not need to decide the issue. However, the result of the Full Court decision appears to be that the answer to the question as to whether it will be an error for a decision-maker not to make an assessment as to whether an Applicant is a person in respect of whom Australia has non-refoulement obligations in circumstances where it is open for an Applicant to apply for a Protection visa, appears to be of less significance than may have previously been thought.
In short, this is because the Full Court in Omar has found that a decision-maker must give meaningful consideration to clearly articulated claims of harm made by the Applicant, including those claims, which if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. This will include a decision-maker making findings of fact as to whether the feared harm is likely to eventuate by addressing the claims in the way they have been expressed by the Applicant.
The Full Court emphasised the distinction between the harm, or the risk of harm and hardship that a person claims and the assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations. The assessment of whether a person is one in respect of whom Australia owes non-refoulement obligations will depend on a decision-maker’s findings in relation to the harm or hardship that an Applicant may face if returned.
The Full Court found that a decision-maker must give meaningful consideration to a clearly articulated and substantial or significant representation on risk of harm claimed, independently of a claim concerning Australia’s non-refoulement obligations. There has to be active intellectual engagement with the Applicant’s claims relating to the risk of harm. The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which the matter is expressed.
The Full Court found that a decision-maker must do more than simply acknowledge or note that claims of harm that have been made. Depending on the nature and content of the representations, the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate, by reference to relevant parts of the representations.
The Tribunal considers that the result of the Full Court decision in the Omar appeal is that decision-makers must engage properly with, and consider all claims of harm made by an Applicant, including those claims which, if made out, would result in Australia owing non-refoulement obligations in respect of the Applicant. Engaging properly with claims of harm made by an Applicant may require a decision-maker to make specific findings of fact including, whether the feared harm is likely to eventuate. The claims of harm must be addressed in accordance with the way that they have been expressed by the Applicant.
If the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon the established facts, this can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[1] The Tribunal must have regard to the representations put as a matter of substance.[2]
[1] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
[2] Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 (Rares and Robertson JJ at [45])
The Applicant provided a statement to the Department dated 2 November 2019. Representations were also made to the Department by the Applicant’s former lawyer’s arguing that the Applicant’s visa should be restored. Those representations relied on the statement provided by the Applicant.
However, as set out previously above, at the hearing the Applicant resiled from much of what had been put to the Department. He indicated that he did not fear harm if he returned to Sudan. He indicated that the extent of his concern was that he may not be able to secure medication for his various ailments and mental illness in Sudan. Indeed, at the hearing, the Tribunal explained that the Applicant would be allowed to apply for a Protection visa if he was unsuccessful before the Tribunal and explained the purpose of Protection visas. The Applicant indicated that he would not apply for a Protection visa if he was unsuccessful before the Tribunal. When asked whether he would look into the matter further, the Applicant said he would not and that he was “not interested” in applying for a Protection visa.
As the Applicant has no subjective fear of harm if he were to be returned to Sudan, the Applicant is not a person in respect of whom Australia has international non-refoulement obligations under the Refugees convention.
In any event, the evidence before the Tribunal does not suggest that children of those who fought in the Sudanese army decades ago are currently subjected to harm on that basis. There is no suggestion that children of former soldiers are imputed with a certain political opinion because their parents were soldiers. Further, the Applicant has three siblings who live in Sudan and there is no suggestion that any of them have been harmed because of their father’s military service.
The Tribunal also considers, as a factual finding, that the Applicant has abandoned claims in relation to harm which were advanced by his previous legal representatives. The Tribunal considers that so much is clear from the Applicant’s evidence that he did not intend to apply for a Protection visa which would necessitate consideration of any refugee or complementary protection claims. It was also evidenced in the Applicant’s repeated claim that the only concern he had relating to potential harm in Sudan was that he may not receive adequate medical attention there.
Even if the Tribunal had not found that the Applicant had abandoned the claims made by his representatives in relation to non-refoulement obligations, the Tribunal finds that all of those claims were bound to fail as complimentary protection claims.
The Applicant’s previous claims relating to corruption and human rights abuses, conflict in instability, the 2019 military coup, treatment of those who have evaded military service, treatment of detainees are bound to fail as complimentary protection claims as the risk of harm claimed is one faced by the population of Sudan generally rather than faced by the Applicant personally. Sudanese laws proscribing evading military service are laws of general application not targeted at the Applicant.
Further, while the Applicant’s former solicitors referred to anecdotal evidence that some returnees to Sudan had been mistreated, the “DFAT Country Information Report: Sudan dated 27 April 2016” (“DFAT Report”), which the Tribunal prefers, provides:
“Individuals are required to obtain an ‘Exit Visa’ in order to leave the country. This requirement has been used to restrict the travel of some high-profile individuals, especially those who were of political or security interest. DFAT understands that if a failed asylum seeker who did not obtain an Exit Visa prior to leaving Sudan was to be returned, they would likely be questioned by the NISS. If an individual was of interest to the Government they would likely be questioned by the NISS in detail, including potentially being taken to NISS Headquarters for further questioning.
…
DFAT is not aware of any evidence that suggests an asylum seeker returning to Sudan would be distinguishable to the broader community or susceptible to any form of discrimination or violence, unless they presented a threat to the Government. In reality, this is likely to affect vocal opponents of the Government.”
As there is no evidence which suggests that the Applicant would be of any particular interest to the Sudanese government or present a threat to the government, the Tribunal does not consider that there is a real risk that the Applicant would suffer significant harm as a “returnee” who exited Sudan without an Exit visa.
Similarly, the previous claim by the Applicant’s former lawyer’s that the Applicant would face harm on the basis of conversion from Islam to Christianity can not succeed. That is because, at the hearing, the Applicant indicated that he had always been a Muslim and had never converted to Christianity. This was consistent with a letter produced by an Islamic Imam in 2019 which indicated that the Applicant regularly attended Friday prayers in detention.
Finally, in relation to the Applicant’s claims that he is concerned that he would be unable to access adequate health services including medical health services in Sudan, the Tribunal considers that this is bound to fail as a complementary protection claim. That is because harm to an Applicant, including possible death, resulting from a failure to obtain adequate health services will not give rise to successful complimentary protection claims: see SZDCD v Minister for Immigration and Border Protection [2019] FCA 326.
While the Tribunal has considered the Applicants former lawyers previous claims that there is stigmatisation of people with mental disorders in Sudan, on the evidence before the Tribunal, the Tribunal is not satisfied that any such stigmatisation constitutes significant harm for the purposes of complimentary protection.
Thus, the Tribunal is not satisfied that the Applicant is a person in respect of whom Australia owes protection obligations.
However, that is not to say that the Tribunal does not consider that the Applicant will not suffer hardship and potentially harm if he returns to Sudan. While the Tribunal is not satisfied that the non-revocation of the cancellation decision will result in a breach of Australia’s international non-refoulement obligations, the Tribunal accepts that the Applicant’s removal to Sudan will result in great hardship and possible harm to the Applicant. That hardship could include the Applicant being homeless and unemployed, and being harmed as a result of the generalised violence in Sudan. In addition, the Tribunal considers that there is a real possibility that the Applicant will continue to use drugs and alcohol, and may fail to take whatever mental health medication is available to him in Sudan. This in turn could lead to the Applicant committing offences in Sudan and being sentenced to imprisonment as a result.
The Tribunal notes that the Respondent tendered evidence which indicated that psychotropic medication is freely accessible in Sudan in psychiatric emergencies. In the absence of an emergency, psychotropic medication is not provided free of charge.
While the Tribunal accepts that there is some limited mental health treatment available in Sudan the evidence suggests that mental health care in Sudan is generally far inferior to that available in Australia.
The Tribunal considers that there is a real possibility that the Applicant will not be able to access appropriate medical health care for his various ailments including HIV, hepatitis and schizophrenia. The Tribunal accepts that this could result in great harm to the Applicant. The Tribunal notes that although medication has been readily available to the Applicant in Australia, he has repeatedly failed to take his medication.
The Tribunal notes that, unlike in Australia, the Applicant may have family support in Sudan. He has a brother and two sisters there as well as a number of extended family.
The Tribunal notes that although it has considered the risk that Australia will breach its international non-refoulement obligations if the Applicant’s visa remains cancelled, there is no legal prohibition on the Applicant applying for a Protection visa. Having said that, the Tribunal acknowledges that the Applicant has claimed that he will not apply for a Protection visa if his application before the Tribunal is unsuccessful.
If the Applicant did apply for a Protection visa any future Protection visa decision maker will not be bound by my findings in this case.
As the Tribunal has considered that the Applicant is not a person in respect of whom Australia owes non-refinement obligations, and considers it unlikely that the Applicant will apply for a Protection visa, section 198 when read with section 197C of the Act, will require the Applicant to be removed from Australia as soon as reasonably practicable. Because it is unclear whether Sudan currently accepts involuntary removals, and because of international travel restrictions owing to the global COVID-19 pandemic, it may not be reasonably practicable at present to remove the Applicant from Australia. That may result in prolonged, but not indefinite, detention in Australia. The Tribunal considers that this is another consideration which weighs in the Applicant’s favour.
Overall, as the Tribunal considers that the Applicant is not a person in respect of whom Australia owes protection obligations, that aspect of this consideration is neutral. However, the Tribunal considers that the Applicant’s removal from Australia to Sudan would result in great hardship and possibly harm to the Applicant as outlined above. The Tribunal places great weight in the Applicant’s favour on the consideration of harm or hardship to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
(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 noncitizen 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.
(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 cancellation 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 Australia indefinitely).
The Applicant first arrived in Australia in 2006 as a 27 year old. He has lived in Australia ever since. The Applicant began offending in 2008 and has committed over 200 offences from 2008 until 2018 including numerous violent offences. Apart from the evidence that the Applicant had some limited employment soon after he arrived in Australia, there is very little evidence of the Applicant contributing positively to the Australian community.
The Applicant had suggested that he had provided some financial assistance to his former partner and his daughter and that there would be devastated if he were returned to Sudan. The Tribunal does not accept this evidence. The Applicant has not been employed for a number of years and has been living on the street consuming drugs and alcohol and committing offences of dishonesty in order to feed his addictions. In those circumstances, the Tribunal does not accept that the Applicant has been providing financial assistance to his ex-wife or daughter. In addition, the Applicant has repeatedly breached a family violence order made for the protection of his ex-wife from him. There is no evidence from the Applicant’s ex-wife or his daughter to suggest that they wish for the Applicant to remain in Australia.
There is no evidence that the Applicant has any close friends or other relatives in Australia. Other than a letter from an Imam who conducts Friday prayers in BITA, there is no evidence before the Tribunal of anyone who wishes for the Applicant to remain in Australia.
While the Applicant has lived in Australia for 14 years and has had some limited employment here, there is very little other evidence that the Applicant has any substantial ties to Australia.
The Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel Applicant’s visa. The Tribunal places slight weight on this consideration in the Applicant’s favour.
(c) Impact on Australian business interests
Neither party has argued that this consideration is relevant in the current matter. In these circumstances the Tribunal places no weight on this consideration.
(d) Impact on victims
Paragraph 14.4(1) of the Direction provides:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
There is no direct evidence of the impact of a decision not to revoke on members of the Australian community including the victims of the Applicant’s behaviour and their family members. The Tribunal considers that the prudent course in the absence of direct evidence of the impact of a non-revocation decision is to place no weight on this consideration. In these circumstances the Tribunal places no weight on this consideration.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves 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 Applicant is a man of 41 years of age who suffers from a number of medical conditions including schizophrenia, HIV and hepatitis.
As a citizen of the Sudan, the Applicant will be entitled to any social, medical and economic support available to Sudanese citizens in Sudan, however limited. The evidence before the Tribunal is that access to appropriate medical services in Sudan is indeed limited and is certainly inferior to the medical services available in Australia.
The Tribunal considers that there is a real possibility that the Applicant will not be able to access appropriate medical healthcare for his various ailments including HIV, hepatitis and schizophrenia. The Tribunal accepts that this could result in great harm to the Applicant. The Tribunal notes that although medication has been readily available to the Applicant in Australia, he has repeatedly failed to take his medication.
The Applicant lived in Sudan until he was 17 years old. As such the Tribunal does not consider that there would be any language or cultural barriers for the Applicant to overcome if he returned to Sudan.
The Tribunal accepts that there is a strong possibility that the Applicant will continue to abuse drugs and alcohol and to commit violent crimes if he returns to Sudan. This is likely to lead to the Applicant being punished by the criminal justice system in Sudan. It may also put the Applicant in danger of violent confrontation with others in Sudan.
The Applicant indicated that he worked as a truck driver for a number of years in Egypt. He also has some limited work experience in Australia as a trolley collector and a truck driver. The Tribunal accepts that the Applicant has not worked in Australia for a number of years.
As mentioned previously, the Tribunal accepts that the Applicant’s removal to Sudan will result in great hardship and possible harm to the Applicant. That hardship could include the Applicant being homeless and unemployed, and being harmed as a result of the generalised violence in Sudan.
The Tribunal notes that, unlike in Australia, the Applicant may have family support in Sudan. He has a brother and two sisters there as well as a number of extended family.
The Tribunal finds that the Applicant will face great difficulty in re-establishing himself in Sudan. The Tribunal notes that it is already made very similar findings in relation to the hardship or harm to the Applicant. To the extent that these considerations overlap, the Tribunal has not doubled up on the weight that it has afforded these types of hardship considerations.
The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a high risk that the Applicant will re-offend.
The Tribunal has found that the primary consideration of the best interests of minor children, in this case, his 17-year-old daughter, weighs slightly in favour of revocation of the cancellation decision.
The Tribunal has found that the consideration of Australia’s international non-refoulement obligations is neutral. The Tribunal has found the consideration of harm and hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration.
The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed slight weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration.
After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant’s favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
...............................[SGD].......................................
Associate
Dated: 29 May 2019
Date of hearing:
3 and 4 February 2020
Applicant:
Self represented
Solicitor for the Respondent:
Mr Matthew Hawker
Sparke Helmore Lawyers
ANNEXURE 1 - EXHIBIT REGISTER
File No 2019/7976................................................................................................................
Between DBKX..................................................................................................... (Applicant)
And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)
Heard on 3 & 4 February 2020
Exhibit Number Description of Evidence G1
Section 501 G-Documents received on 18 December 2019
A1
International Health and Medical Services Letter dated 15 November 2019
A2
Applicant’s Statement dated 12 January 2020
A3
Letter of Support dated 17 January 2020
R1
DFAT Country Information Report, Sudan, dated 27 April 2016
R2
Bundle of Summonsed Records from the Victorian Police Services received 24 January 2020
R3
WHO-AIMS Report on Mental Health System in Sudan dated 2009
R4
Applicant’s Certificate of Completion for the ‘Healthy Mind Module' dated 4 April 2019
R5
Applicant’s Certificate of Achievement for the completion of ‘the Moderate Intensity Violence Program’ dated 30 May 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
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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Jurisdiction
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Standing
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