DFNM and Minister for Home Affairs (Migration)
[2019] AATA 3769
•24 September 2019
DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769 (24 September 2019)
Division:GENERAL DIVISION
File Number(s): 2016/0331
Re:DFNM
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:24 September 2019
Place:Melbourne
The Tribunal decides to:
1.set aside the decision made by a delegate of the Minister on 14 January 2016 under s 501CA(4) of the Migration Act 1958 refusing to revoke the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa on 22 April 2015 under s 501(3A); and
2.substitute a decision that the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa under s 501(3A) be revoked under s 501CA(4).
[sgd]....................................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – mandatory visa cancellation due to substantial criminal record - refusal to revoke mandatory cancellation – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 ss 29, 43(1)
Australian Human Rights Commission Act 1986 Schedule 2
Migration Act 1958 ss 5(1), 5H to 5M, 36, 36(1A) to 36(7), 65, 84, 86, 197A, 197C, 499, 499(1), 499(2), 501, 501(1), 501(2), 501(3A), 501(3A)(a) and (b), 501(CA), 501CA(3), 501CA(4), 501CA(4)(b)(ii)
Migration Regulations 1994
Cases
A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; [2017] 248 FCR 456; (2017) 248 FCR 456
Betkoshabeh v Minister for Immigration and Multicultural Affairs [1998] FCA 934; (1998) 84 FCR 463; 157 ALR 95; 28 AAR 21; 51 ALD 328
CRI026 v Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216
DKXY v Minister for Home Affairs [2019] FCA 495
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2019] FCA 1132
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497; 299 ALR 280; 59 AAR 65; 133 ALD 100
Omar v Minister for Home Affairs [2019] FCA 279
Re QKVH and Minister for Home Affairs [2018] AATA 1855
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Uelese v Minister for Immigration [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 66 AAR 136; 151 ALD 107
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No.65 made under s 499 of the Migration Act 1958
Direction No.79 made under s 499 of the Migration Act 1958
International Covenant on Civil and Political Rights and its Second Optional Protocol
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
REASONS FOR DECISION
Deputy President SA Forgie
From 18 July 2011, DFNM was the holder of a Class BS Subclass 801 Partner (Residence) visa (Partner visa). On 22 April 2015, his visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). As required by s 501CA(3) of the Migration Act, a delegate of the Minister for Home Affairs (Minister) invited DFNM to make representations to him regarding why he should revoke the cancellation decision under s 501CA(4). DFNM made those representations in a letter dated 7 December 2015 but his request that the cancellation decision be revoked was unsuccessful. In a letter dated 18 January 2016 and sent to him through his authorised representative, DFNM was advised that a delegate of the Minister had decided on 14 January 2016 not to revoke the cancellation. The delegate made the decision under s 501CA(4) of the Migration Act on the basis that there was no other reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Migration Act.
DFNM applied to the Tribunal for review of that decision. It was heard by a differently constituted Tribunal, which affirmed the Minister’s decision on 24 March 2017. An appeal was lodged from that decision to the Federal Court. On 30 November 2017, Murphy J ordered by consent that the Tribunal’s decision be quashed and that the matter be remitted for reconsideration according to law. The Minister had conceded that the Tribunal’s decision had been affected by a jurisdictional error of the type identified by the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection[1] (BCR16).
[1] [2017] FCAFC 96; (2017) 248 FCR 456; Bromberg and Mortimer JJ; Davies J dissenting
As the person constituted by the President, I have reheard DFNM’s application. I have decided to set aside the decision made by a delegate of the Minister under s 501CA(4) dated 14 January 2016 not to revoke the cancellation of DFNM’s Partner visa under s 501(3A) and substitute a decision that the cancellation be revoked under s 501CA(4). The effect of my decision is that DFNM continues to hold a visa entitling him to remain in Australia.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which the Minister has cancelled DFNM’s Partner visa. They also provide the basis on which I must consider his request for revocation of the decision.
Cancellation of Visa under s 501(3A)
In so far as it is relevant in this case, s 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
In DFNM’s circumstances, s 501(3A) required the Minister to cancel his Partner visa because he met the criteria in ss 501(3A)(a)(i) and (b). He met that in s 501(3A)(a)(i), when read with s 501(7)(c), because he has a substantial criminal record on the basis that he has been sentenced to a term of imprisonment for a period of 12 months or more. At the same time, he met the criterion in s 501(3A)(b) because he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of a State when the decision was made to cancel his visa under s 501(3A). The Minister had no discretion in the matter.
Where the Minister does have a discretion arises under s 501CA. Section 501CA is relevant when the Minister has, as he has in this case, made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
“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.”
[2] Migration Act; s 501CA(1)
By having a substantial criminal record, DFNM does not pass the character test. It follows from this that he cannot satisfy s 501CA(4)(b)(i) and must rely on there being another reason why the Minister should revoke the cancellation decision within the meaning of s 501CA(4)(b)(ii). The way in which I am required to consider whether there is another reason was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
BACKGROUND
In this section of my reasons, I will set out the facts that are not in dispute between the parties and that I have found on the basis of the oral and written evidence. They are taken from the statements that DFNM has made. They are dated 25 August 2016[5] and 29 November 2018[6] with a third undated but made in approximately September 2015.[7]
[5] Exhibit E
[6] Exhibit F
[7] Exhibit D
DFNM was born in Lebanon and is now 35 years of age. He has six brothers and sisters and all were raised as Shia Muslims. When he was in Lebanon, he did not learn to read Arabic before he left school in Grade 4. As his father had a gambling issue and there was insufficient money for the family, DFNM started working as a labourer in a mechanics shop and car wreckers when he was 12 years of age. DFNM then trained to be a hairdresser and continued to work in that profession. When he was approximately 18 years of age, he was involved in a serious motorbike accident leaving him with permanent disfigurement and scarring his torso and lower body. He was hospitalised for three months and incurred a large debt as a result. His maternal grandmother sold some land to enable him to pay the debt. He continues to suffer from chronic pain as a result of his injuries.
DFNM has one uncle who lives in Australia. His uncle had always tried to help the family and, in 2007, he invited DFNM to visit him and his wife and family in Australia for a three month holiday. During his visit, his uncle introduced him to his wife’s niece who spent time showing DFNM around Melbourne. During their time together, he and his uncle’s wife’s niece decided that they liked each other a lot and wanted to marry. Their families finalised the marriage with a Sheik but his wife’s father had insisted that she held all authority to make the decisions in their marriage. That meant that she would choose where they lived, whether they would have children, how to spend the family money and whether to divorce him. They signed a written agreement to that effect. DFNM was never concerned about the agreement because he felt that they had a strong relationship and that his future wife would make the best decisions for both of them.
DFNM returned to Lebanon where he applied for a spouse visa. When he was granted it in 2008, he returned to Australia and he and his wife were married. They lived together in her family home and were happy together. DFNM worked at a tiling business. In June 2008, his wife’s brother was killed in a motor vehicle accident. The family suffered a lot of sadness as a result of their loss but DFNM felt that they also changed in their attitude towards him. Not long after their loss, his wife’s family travelled to Lebanon where they met his family. They were not happy that his family was not wealthy. On their return, DFNM’s father-in-law told him that he was rubbish and that he did not want him in his daughter’s life anymore. Furthermore, his father in law told him, he had brought bad luck to the family and he was to leave Australia.
DFNM’s relationship with his wife also deteriorated at this time. She would make fun of his English and taunt him about his scars and say that he was disgusting and ugly to her. Twice, and to DFNM’s great happiness, she fell pregnant but, against his wishes, she then terminated the pregnancies. She told him that these were decisions to be made by her alone. DFNM felt that his wife attempted to manipulate and control him. She would hide his passport and the car’s GPS system so that he could not go anywhere. At one stage, she applied for a restraining order against him and then told him that she would withdraw her application if he paid all of his wages into her bank account.
DFNM stayed in the relationship and kept trying to make it work but he found it a difficult and tumultuous relationship. He made many excuses for her because he knew that she was grieving for her brother but he felt that he was being physically, emotionally and financially abused. His wife contacted the Department of Immigration in February 2010 to advise that their relationship was at an end but contacted it a few months later to say that they had reconciled.
After this, DFNM applied for a permanent spouse visa on the basis that he had experienced family violence. In 2011, he undertook a Family Violence Assessment at Centrelink and, following Centrelink’s report, was subsequently granted a Partner visa. Following the breakdown of his marriage, DFNM suffered from depression. He felt a failure and could not understand why his wife and her family hated him so much. Over the years, he has talked with doctors, social workers, psychologists and psychiatrists in an attempt to understand what happened. He tried to get through it with the help of his uncle and his family, with whom he lived following his separation from his wife. DNFM continued to work as a tiler throughout this period.
DFNM told Mr Rory Ford, a Member of the Australian Counselling Association, that he first started to use cannabis and methamphetamines when he was introduced to them by a work colleague in 2011.[8] He used to smoke once each week but he increased his use to about half a gram each day basis as his marriage broke down. His use continued until he was imprisoned. He found that cannabis helped him to sleep and to manage his pain. He was smoking about two grams a week before his imprisonment. DFNM would also take between two to eight pills of Xanax that he had been prescribed by his GP for management of the feelings of anxiety and panic that he experienced when his marriage broke down. He had also become dependent on opiates but was not clear whether he had done so when placed on a methadone programme in prison or when placed on opiate medications at the beginning of his period in immigration detention.
[8] Exhibit G; Report of Mr Rory Ford dated 21 September 2018.
In approximately November 2011, DFNM was involved in another motorbike accident and he was hospitalised for three days. He suffered a soft tissue hand injury and a closed brain injury but the accident also revived memories of his earlier more serious motorbike accident in Lebanon.
DFNM met another woman, whom I will call “Layla” in approximately 2012 when both were at a nightclub at Crown Casino. They began dating. At about the same time, he had been introduced to illicit drugs. He says that he does not know why he started taking drugs but he did know that he was in a very dark place at the time as he was still recovering from the breakdown of his marriage and the things that had been said to him. As a result, he was still suffering from feelings of vulnerability and loneliness. He hid his habit from Layla.
After dating for approximately eight months, DFNM met Layla’s family but they disapproved of her relationship with him. From DFNM’s point of view, Layla’s family disapproved of him because of his religious background. He followed the Shia sect of Islam. Layla’s family’s disapproval led him to learn about the Christian faith because he wanted to show commitment to Layla and to make his relationship with her and her parents work. DFNM converted to Christianity in approximately August 2012 when he was baptised in a Catholic Church in Melbourne. To show his commitment, he had a crucifix tattooed on his forehand. Only Layla attended his baptism and her family continued to disapprove of him.
Her family also disapproved of her buying him a motor vehicle when he had sold his own car and had no way of getting to work when he did start to work again. Layla bought the car on a finance arrangement because she wanted to show her gratitude to him for the steps he had taken in showing his commitment to her. DFNM had many arguments with Layla’s father, who told him that he was not good enough for his daughter. He was Muslim and he could not be with her because “their heads did not match”. After that argument, DFNM drove off in the car.
Layla and her father had an argument and he told her that she had to choose between DFNM and her family. The police had been contacted and DFNM received notice that he had to attend at the police station. He and Layla attended at the police station where he was given an Apprehended Violence Order (AVO). After that, DFNM and Layla stayed together for three weeks before her uncles took her home to her family and also took the car. In December 2012, Layla telephoned him and told him that she had chosen her family. Later that month, DFNM and Layla had an argument at her family home. Since then, DFNM has never seen her again. He was supposed to attend court regarding the AVO but he had lost the notice of when he was required to attend. At the time, he was taking Xanax and other drugs.
After his relationship with Layla broke up, DFNM found that his mental and physical health worsened. He stopped going to work because he was so lonely without Layla and could not face it. The only people he had any contact with were those from whom he obtained his drugs. After attempting to commit suicide by taking half a bottle of pills mixed with ice (crystal methamphetamine), DFNM was hospitalised. He did not continue to stay with his uncle because his uncle did not approve of the people he spent time with or with his using drugs. Instead, DFNM would sleep on people’s couches. He used ice and heroin and began to commit crimes to finance his drug habit. DFNM admitted that he stole a motorbike and petrol, committed petty theft and other offences that he is not proud of. Those other offences included burglaries in residential premises and threats to Layla’s family that he made during their last encounter. He pleaded guilty to all of the offences at the earliest possible opportunity even though he did not remember committing some of them because of his being high on prescription and illicit drugs most of the time. Although he knew that it was no excuse to his threatening physical violence to Layla’s family, he was very upset and hurt at the time that he made those threats. Drugs were not an excuse for his committing crimes, he said, but they were the reason why he did. He was convicted of 22 offences and sentenced to an aggregate sentence that included 12 months’ imprisonment. I come to this below.
DFNM found his time in prison very difficult. Although he did not cause any trouble with the other inmates or with the staff, he was suffering withdrawal symptoms from ice as well as dealing with chronic pain from his motorbike accidents and symptoms of depression. He tried to commit suicide and this led to his being hospitalised for psychiatric treatment. In one attempt, he used a razor blade given to him by another inmate.
DFNM was released on parole in or about May 2014 after serving five months of his 12 month sentence. DFNM found his parole very difficult. He consulted his General Practitioner (GP) regarding pain. At that time, he had been prescribed Xanax and, on 4 July 2014, Lyrica was prescribed for him. Although DFNM begged for morphine and the GP thought he was using ice, his request was declined. DFNM suffered a crisis in August 2014 and was admitted to the North Western Mental Health (NWMH) at Broadmeadows Psychiatric Services (BPS) suffering from a major depressive episode. He remained at BPS from 26 August 2014 until 4 September 2014 when he was discharged into the community. At the time, he had been prescribed Sodium Valproate and Duloxetine and a recommendation had been made that he receive intensive rehabilitation therapy.
DFNM’s parole was revoked on or about 15 October 2014 when he failed to comply with the terms of his parole, returning a positive urine test for drug use. For the first four weeks, he remained at the Melbourne Assessment Prison so that he could be medically assessed and his pain managed. He was unable to use Lyrica, which his GP had prescribed for him, as it is not a medication permitted to a person held in custody. DFNM continued to experience episodes of pain. He served the unexpired portion of his sentence and was released on 16 May 2015. Since then, DFNM has been in immigration detention.
He has found immigration detention very difficult and it has taken a toll on his physical and mental well-being. At the beginning, he again attempted to commit suicide first by hanging himself and then by cutting his throat with razor blades. He was hospitalised and then released back into detention. A report prepared by the International Health and Medical Services (IHMS) and dated 12 February 2018 noted DFNM’s previous significant history of drug abuse, his self-harming and attempts to commit suicide. The report continued:
“… [DFNM] has been very closely engaged with the IHMS mental health team since his arrival in detention. … [DFNM] has improved greatly since his pain medication has been prescribed and alleviated the majority of his pain. Despite close monitoring and support … [DFNM] remains impulsive and when unsettled, he acts out. He has self-harmed and attempted suicide on multiple occasions. … A pain specialist’s review was recommended and a review of his cognitive functions. … [DFNM] underwent a cerebral MRI in May 2016; the results were normal. Neuroscience testing was attended; … [DFNM’s] overall IQ presented as borderline, and reported to be likely reflecting his past injuries from his two motorcycle accidents and drug usage. The Neuroscience reported these difficulties would make him ‘more vulnerable to reacting before fully contemplating the consequences of his behaviour’ The IHMS Psychiatrist reviewed the detainee in May 2017 reporting that … [DFNM] has regulation difficulties and impulsivity and desperately wants to leave the detention centre environment and does not want to be returned to his home country. However, no depression or psychosis was identified.
… [DFNM] attended a routine IHMS mental health assessment in Jan 2018, no acute concerns were reported. He is reported to be actively attending the IHMS groups and activities. … [DFNM] is prescribed and is compliant with his current antipsychotic medications.”[9]
[9] Exhibit J
In his statement dated 25 August 2016, DFNM wrote that, although he was still managing chronic bone and muscle pain together with other health issues, he was feeling more himself. He has developed strategies to cope with the stressors that led to his taking drugs in the first place. Those strategies include his complying with a pain management plan set out by his doctors, seeing a psychologist each week and a psychiatrist each fortnight, being involved with his church group and keeping himself busy with work.
DFNM completed a Drug and Alcohol programme in August 2017. He had been referred to it by the IHMS in view of his previous substance abuse. It was a 12 week programme covering topics such as dependency, strategies to prevent relapse and coping techniques. He also learned about the consequences of substance abuse and the pain that it causes the community. In his statement dated 29 November 2018, DFNM said that he had not taken drugs for the previous four and a half years. That would mean that he has been drug free from approximately May 2014 but is not consistent with the fact that his parole was revoked on or about 15 October 2014 when he failed to comply with the terms of his parole returning a positive urine test for drug use.
Since approximately August 2015, DFNM has attended Bible study classes once each week at the Perth Immigration Detention Centre (PIDC). They are held by David and Lorraine Shaw and they take DFNM through the stories of the Bible and examine their meaning and the lessons that can be learned from them. DFNM finds that Christian teachings about loving each other and being at peace with one another have unlocked a door for him. He feels that he has developed his faith and become a much better person.
For at least the last three years in PIDC, DFNM has worked as a men’s hairdresser. In addition to his work, he has attended personal training five times each week and taken part in sporting activities. His favourite sport is badminton. He has also organised bingo and pool competitions on weekends. Sometimes, he attends what he calls “brain training sessions”. He socialises and has made friends. Other activities in which he is involved include craft sessions, painting, jewellery and sewing classes, basket weaving and wood craft. He has attended wildlife sessions and has an interest in animals. In addition to these more structured activities, DFNM has learned to read Arabic and can now read the Bible in Arabic. The notes kept by PIDC officers dated 18 September 2018 confirm that DFNM was engaging in these activities. They added that Mr and Mrs Shaw continue to be a great support for DFNM.[10]
[10] Exhibit M and see also Exhibit N
DFNM has referred to two incidents in which he has attended to a fellow detainee who has been self-harming and has also called for assistance. Those incidents occurred in August and September 2018. He also separated two detainees who were fighting in August 2018 and alerted officers in October 2018 when another locked himself in the toilet.
DFNM has also self-harmed, or attempted to do so on several occasions since he has been in immigration detention. With the aid of another person, DFNM attempted to hang himself with a shoelace on or about 14 August 2015. He complained of pain and of being unable to weight bear on his right foot. On 19 September 2015, he was admitted to the Royal Perth Hospital under mental health legislation after cutting his neck three times with a razor blade on the previous day. DFNM made two deep lacerations in his neck and another to his forearm on 24 November 2015 with possible muscle involvement. The notes made by IHMS reveal that he was pre-occupied with his general pain at the time.[11] On 12 May 2016, DFNM attempted to burn himself by first covering his head with a flammable doona and tucking it into his trousers and then setting fire to his trousers. When PIDC officers doused the flames with water and removed DFNM’s trousers, his burnt skin peeled off as well. The next day, DFNM was calm at first but then became upset and worried about being sent back to Lebanon. It was noted that he seemed ambivalent about the fact that he might have died when he set fire to himself.
[11] Exhibit M
DFNM had various appointments with a mental health nurse at IHMS following this attempt. At an appointment on 8 July 2016, DFNM told the mental health nurse that he was depressed and that there was no way he could return to Lebanon as a Muslim who has converted to Christianity is “seen as a dog” in that country. He wants to live life as a Christian and he loves the Bible, which he described as “God’s Book”. DFNM’s concerns repeated those he had expressed to a mental health nurse on 18 May 2016 shortly after he had set himself on fire. On 11 July 2016, he again told her that he could not return to Lebanon as he is now a Catholic. The mental health nurse noted that DFNM had a lot going on in his head but that reading the Bible helped him as did prayer. At a subsequent appointment on 13 October 2016, DFNM told IHMS that he felt stressed all the time and he was worried about going back to Lebanon and that he would not get his mental health medication in that country where they “run away” from people with mental health problems. At further appointments with IHMS on 16 October 2016 and 28 April 2017, DFNM continued to express concern about the upcoming court case.
When he swallowed two razor blades on 4 January 2017, DFNM said that he did so because he was sick of detention and worried about court and that he was overwhelmed by everything including his future. The razor blades were removed and he was tested for Hepatitis B and C as well as HIV as DFNM was worried that he had swallowed used blades.
DFNM self-harmed on 29 May 2017 when he started to feel very alone and depressed. He cut the side of his neck, his wrist and arm. DFNM contracted Hepatitis C and it is suspected that the razor blade he used on this occasion was the cause of his doing so. The razor blade had been used previously by a fellow detainee. Follow up pathology has revealed that his own immune system has cleared him of Hepatitis C but he was placed on a Hepatitis C care plan and further testing had been recommended to take place in May 2018.[12] When he had a further test in late May 2018, IHMS recorded that the HCV Viral Load had significantly increased when compared with the previous result returned in November 2017.[13] He was referred to a gastroenterologist to commence Hepatitis C antiviral medications.
[12] Exhibit J; IHMS Health Summary dated 12 February 2018
[13] Exhibit M
On 19 July 2018, DFNM cut his wrist and had to have four stitches at the hospital. On or about 9 October 2018, DFNM attempted to hang himself in the yard with a shoelace. He was hospitalised and discharged the following day. On both of those occasions and on another, which occurred on 21 October 2018 when he cut his inner forearm with a razor blade, DFNM felt a sense of hopelessness as a result of his visa situation.
DFNM is taking Alandropil for his mental health, Saboxin for his physical pain and Lyrica for his nerve damage. He attends IHMS each day to take his medication. He has been decreasing his medication but is so doing slowly and with the support of his mental health team.
CONVICTIONS, PAROLE and RELATED MATTERS
Convictions and sentences
In this section of my reasons, I will set out DFNM’s convictions interspersed with other relevant material in a chronological fashion. In so far as I know them, I have set out the date on which the offences were committed. In some circumstances, knowledge of the timing of offences and convictions can be important for an offence may have been committed long before the matter comes before a court. Unless the date of the earlier offence is known, the person may appear to have learnt nothing from the earlier court appearance or conviction or to have breached the conditions of a community corrections order (CCO) imposed by the court when, in fact, the offence before the court was committed at a time earlier than the imposition of a CCO. In this matter, DFNM’s offences were dealt with on the one occasion by the Broadmeadows’ Magistrates Court and then, on appeal, by the Victorian County Court.
Court
Court Date
Date of Offence
(charge)Offence (Counts)
Court Result
(05/05/2013)
Possess amphetamine
31/12/2012
(05/05/2013)Threat to destroy/damage property
31/12/2012
(03/01/2013)Make threat to kill
31/12/2012
(03/01/2013)Make threat to kill
11/05/2013
(11/05/2013)Drive whilst authorisation suspended (licence suspended 30/04/2003 to 29/07/2003)
11/05/2013
(11/05/2013)Use unregistered motor vehicle - highway
26/05/2013
(26/05/2013)Drive whilst authorisation suspended
12/07/2013
(12/07/2013)Drive whilst authorisation suspended
09/08/2013
(09/08/2013)Possess amphetamine
Signed and entered bail at Sunshine Police Station on 09/08/2013 to appear at the Sunshine Magistrates’ Court on 07/10/2013.
(15/09/2013)
Possess controlled weapon without excuse
Pending charge as at 22/04/2015. Outcome not recorded.
17/09/2013
Theft of motor vehicle
23/09/2013
Theft from motor vehicle (2)
29/09/2013
Theft of $87.00 worth of petrol
Warrants for arrest for the five preceding charges issued when he failed to appear in court on 07/10/2013.
21/11/2013
Attempted theft from motor vehicle
22/11/2013
Theft from motor vehicle (2)
22/12/2013
Theft from shop to value of $30
25/12/2013
Burglary (3)
25/12/2013
Criminal Damage (Intent Damage/Destroy) (2)
25/12/2013
Theft (2)
The warrants were subsequently executed on 26/12/2013 following DFNM’s release from hospital. Held on remand from 30 December 2013.
Broadmeadows Magistrates’ Court
Same order imposed by the County Court of Victoria on appeal heard and determined on 14 March 2014
14/02/2014
Various from 05/05/2013 to 25/12/2013
Make threat to kill (2)
Threat to destroy/damage property
Burglary (3)
Theft (2)
Intentionally damage property
Intentionally destroy propertyAggregate 12 months’ imprisonment.
Concurrent.
Effective total State term imposed is 1 year.
Time held in custody, 51 days, reckoned as a period of imprisonment already served under this sentence.
Non-parole period fixed at 5 months.Drive whilst authorisation suspended (4)
Use unregistered motor vehicle
Fail to answer bail
Shop theft – less than $600
Dishonestly undertake in realisation of stolen goods
Handle/receive/dispose of stolen goods
Theft from shop (shopsteal)
With conviction, fined an aggregate of $1,500.
Fail oral fluid test within three hours of driving
With conviction, fined an aggregate of $1,500.
Licence cancelled and disqualified for 9 months.
Order on licence effective from 14/02/2014.Possess amphetamine
With conviction, fined an aggregate of $1,500.
Forfeiture order made by consent
Order all Drugs/Instruments seized be forfeited and destroyed.Notice of appeal to County Court lodged on 14/02/2014
Remarks made in the County Court on appeal
I do not have any sentencing remarks from the Broadmeadows Magistrates’ Court but I do have the remarks made by Judge Taft of the County Court on 14 March 2014 on appeal in an exchange with DFNM’s solicitor. I will reproduce them in part in so far as they related to DNFM’s circumstances. It was noted that, although there were several offences, DFNM had no prior convictions when he was sentenced by the magistrate. The sentencing remarks culminated in Judge Taft’s imposing a sentence in the same terms as that imposed
by the magistrate:
“HIS HONOUR: The difficulty here, quite candidly, is that the gravity, the objective gravity, of the offending is so great – it does appear to me that the magistrate has factored into the sentence all the mitigatory matters that you have very ably advanced. I have great concerns about the overcrowding of the prison system …
It’s the objective gravity of the offending and the absolute refusal to comply with the law. He’s picked up driving while unauthorised on 11 May 2013, 26 May again, 12 July again, 29 July again. Now, one can put the traffic offences to one side, it’s the burglaries on domestic homes ---
…
… --- and the wanton destruction ---
… --- that does seem to me to demand a prison sentence of the sort that has been imposed. I repeat again if people burgle domestic homes and ransack them, I will almost always, and depending upon their particular circumstances, impose a significantly longer term of imprisonment than that imposed upon your client.
…
… --- it may be that he was destitute and without a harm [sic – home]. It’s one thing to break into a home and steal cash or some property, but to ransack a home is quite another.
MS WOODWARD: Yes. To be frank, your Honour, he has no memory of that. You’ll note that he was found unconscious outside a house ---
…
… --- and transported to hospital.
HIS HONOUR: But it’s the fact that it occurred and it’s admitted and not disputed ---
…
... --- and it’s that fact which does seem to me to put him in a particularly difficult position on this appeal. …
… --- … I’m entirely unpersuaded that a different sentence can be imposed that than that imposed by the magistrate.
…
… --- … I regard the sentence imposed by the magistrate as a most merciful sentence, notwithstanding the considerations that you’ve raised.
…
… What I will do, … is add something to the court record today making it very clear that this man should be assessed and treated for – and undertake courses. And I appreciate that his minimum term is relatively – well expire relatively soon, but for drug usage because it does appear that drug usage is the underlying problem throughout.
…
… So it’s drug usage over at least a 15 month period ---
…
… --- and probably longer.
MS WOODWARD: Yes. He tells me essentially the end of his marriage in 2011, things just – from there ---
HIS HONOUR: Unravelled.
…”[14]
[14] T documents; ST6 at 357-360
DIRECTION No. 79
Direction No. 79 was made by the then Minister for Immigration, Citizenship and Multicultural Affairs, on 20 December 2018. Paragraph 2 states that the Direction commenced on 28 February 2019. That is a date after the date on which the delegate made the decision under s 501CA(4) not to revoke the cancellation decision but it seems to me that Direction No. 79 applies to the Tribunal when it is reviewing such a decision. Review of a decision leads to the Tribunal’s making the decision afresh on the evidentiary material available to it. Making that decision afresh is an exercise of the powers under the Migration Act. That follows from s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) when it provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision …”
The Tribunal is exercising powers under the Migration Act and particularly under s 501CA(4).[15] Therefore, under s 499(2A), the Tribunal must comply with a direction given under s 499(1) about:
“(a) the performance of those functions; or
(b)the exercise of those powers.”
[15] Although the Tribunal exercises powers under the Migration Act, I do not think that the Tribunal can be described as a “body having functions …” under that Act. Its functions are conferred under the AAT Act. They are to review decisions in respect of which an application has been made to it. An application may only be made to it if another enactment provides that it may be made but the application is made under s 29 of the AAT Act, as varied by that other enactment. Therefore, the application is not made under the Migration Act but under the AAT Act. The review is conducted under the provisions of the AAT Act as modified by that other enactment.
Paragraph 6.1 of the Direction No. 79 begins with a statement of objectives:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[16]
Paragraphs 6.1(2) and (3) outline a decision-maker’s obligation to consider whether to exercise the discretion to refuse or cancel a visa under ss 501(1) or (2) of the Migration Act or the discretion given by s 501CA to revoke a cancellation of a visa that has taken place under s 501(3A). Paragraph 6.1(4) reminds decision-makers that they must comply with a direction made under s 499 of the Migration Act. The objectives are followed by passages described as “General Guidance” and “Principles”.
[16] Direction No. 79 at [6.1(1)]
Paragraph 6.2(1) appears under General Guidance and states:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
The Principles set the framework within which decision-makers should decide whether to exercise their discretionary powers. Individual considerations relating to ss 501(1) and (2) and 501CA are set out in Parts A, B and C of Direction No. 79 respectively but the Principles give those considerations their form and pattern as well as their underpinning framework. The Principles set out in paragraph 6.3 are:
“(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.”
Paragraph 7(1)(b) sets out how the discretion under s 501CA is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”[17]
[17] Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in DFNM’s case for it is directed to revocation requests made in relation to mandatory cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 79 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[18] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[18] Direction No. 79 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[19] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … whether or not to revoke the mandatory cancellation of a visa. …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[20]
[19] Direction No. 79 at [8(2)]
[20] Direction No. 79 at [8(4)] and [8(5)]
Part C of the Direction begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction. It then sets out in paragraph 14 what are described as “other considerations”. These are then developed under the headings of: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non‑citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[21]
[21] Direction No. 79 at [13.1(1)]
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
A. The nature and seriousness of DFNM’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“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; [sic]”[22]
[22] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
When he came to Australia to marry his former wife in 2008, DFNM started work and lived his life without coming to the notice of police at all. Even when his marriage began to unravel later in 2008, he kept working and trying to keep his marriage together. He continued to work when his marriage came to an end but he allowed despondency and despair to overtake him in at approximately the end of 2011 or beginning of 2012. He blamed his doing so on his having met some “bad people” and being in a very dark place because of the breakdown of his marriage and the very “bad things” that his wife and her family had said to him. At about the same time, he had met Layla and fell in love with her. Despite his love for Layla, the need for the drugs became such that he committed offences. The offences he committed extended from May to December 2013. By then, he had been some five years in Australia without ever coming to police attention.
In that seven month period in 2013, DFNM committed some serious crimes. Judge Taft regarded the burglaries and the wanton destruction in one of the homes he burgled as particular worthy of serious censure. He made no mention of the threats to kill and, on the evidence that I have, I take the threats to kill as threats made in the heat of an emotional argument with Layla’s parents and threats without substance. Certainly, he said that he was going to kill them, burn the house and the car but that does not alter my view. The car that Layla had arranged to buy for DFNM was a source of grave concern for her father and a source of disagreement between the two men. There is no evidence that DFNM attempted any physical contact with Layla’s parents and he simply drove away after their altercation.
What is more concerning about his actions in that seven month period is his complete lack of care for his own responsibilities, for himself or for anyone else. He showed no concern for those people whom he burgled to fund his drug habit and did not meet his obligations to comply with the conditions of his bail that was granted on the charges related to his use of motor vehicles and the threats to kill. He did not stop until he was arrested after the series of burglaries. Perhaps it could be said that he should have regarded his arrest after his first series of offences from May to August 2013 as a wakeup call to look at himself and his behaviour but it is apparent that he did not and that he continued to use drugs. On the evidence that I have, he did not receive a wakeup call about the potential effect of his offending on his visa status in the form of a warning letter from the Minister’s Department. On the evidence it is, however, unlikely that the Department would have been in a position to have considered DFNM’s circumstances let alone issue a warning letter at that stage even if it had known about the charges and that was not necessarily the case. Furthermore, the course of events at the time indicate that DFNM would not have heeded any such advice.
Having regard to the dates he gave in his own evidence, DFNM used illicit drugs, or licit drugs illicitly, in the period during which he was on parole but I find that he has not done so during his period of imprisonment or since being placed in immigration detention. That accords with his oral evidence and also there being a lack of any evidence suggesting that DFNM returned any positive urine samples in prison. It also accords with his denial regarding their use in immigration detention and his evidence that he has not returned a positive urine sample lead me to the same conclusion i.e. that he did not use them in immigration detention.
Since then, DFNM has not come to the attention of the authorities for any criminal offences. His history of offending has had a beginning and an ending that encompass a defined period of approximately 12 months. His drug use extended a little before the start of that period and ended when he was on parole. Judge Taft warned him that, if he did not get his life in order and do something about his ice habit, he was very likely to commit serious criminal offences and be rewarded with very significant terms of imprisonment. DFNM has not been in a position where he has been free to engage with others in the community since Judge Taft spoke with him but he has made considerable efforts to modify his behaviour to suit the rules and expectations of the prison community and then that of immigration detention since his release in May 2015.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 79 states:
“(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).”
B.1. Consideration
Should DFNM engage in conduct similar to that leading to his convictions for theft, the property of members of the Australian community would be at risk. If he were to resume his use of amphetamines, the risk of his continuing to steal would be high. So too would the risk of the personal safety of members of the Australian community for his convictions have included those for burglary, criminal damage, driving while his licence has been suspended and for driving an unregistered motor vehicle. Judge Taft warned him of the dangers of drug use and driving and the harm that can be caused to other road users.
What is the risk of his engaging in the conduct that led to his convictions? DFNM is clearly of the view that he will not do so. His history in prison and in immigration detention would support him in his view of himself. In so far as he has done any harm to anyone, it has been to himself. He has done his best to stop others from harming themselves.
DFNM’s past remains relevant for it puts his offending behaviour and his future attempts to change his ways into context. Both his past and his attempts to rehabilitate himself are relevant in considering the risk of his repeating his offending behaviour. In the Background section of these reasons, I have set out DFNM’s history. It is a history that shows his difficulty in prison with dealing with his pain management in prison and with his feelings that led to his self-harming. He had not dealt with them by the time he was released on parole leading to the revocation of his parole when he resumed the use of illicit drugs.
Where DFNM has made his greatest progress has been in immigration detention. He has not turned to other individuals as he did with Layla but to himself. DFNM has framed this in terms of finding a strong connection with God and in strengthening it since his conversion to Christianity in 2012. Whatever faith he has found and whatever effect it has had on him in modifying his behaviour or giving him peace and direction, the behaviour he has shown to others and to himself is more important in assessing the risk of his reoffending. Mr Ford conducted an analysis of that risk. In his report dated 21 September 2018, Mr Ford said that he had used the Dynamic Risk Assessment of Reentry (DRAOR),[23] the Psychiatric Diagnostic Screening Questionnaire[24] (PDSQ) and the Kessler Psychological Distress Scale[25] (K-10).
[23] The DRAOR is a risk assessment tool designed to assess stable and acute risk factors and protective factors for re-entry in to the community.
[24] The PDSQ is an instrument designed to screen for the DSM-IV Axis I disorders most commonly encountered in medical and outpatient mental health settings.
[25] The K-10 is an indicator of current psychological distress and can be used in the screening of depression and anxiety disorders.
The DRAOR assesses stable risk factors, acute risk factors, protective factors and mental health factors. His PDSQ score was T43 placing him in the low overall range of psychiatric symptoms. At the same time, DFNM had a significant reading in the subscales for Major Depressive Disorder of 12/21 and a low reading of 4/10 for Generalised Anxiety Disorder. Using the K-10 Depression and Anxiety screening tool, DFNM recorded a score of 46/50. That score placed him in the current high range of mood disorder symptoms. DFNM continues on a stable medication treatment plan of 5mg of Olanzapine[26] and 300mg of Lyrica.[27] Mr Ford was of the view that DFNM’s mental health has gained some stability but needs to be monitored consistently.
[26] An antipsychotic and mood stabiliser.
[27] A central nervous system stabiliser.
With regard to the stable and acute risk factors identified in the DRAOR, Mr Ford reported:
“Stable Risk Factors
… [DFNM] presented with an overall low risk level for stable criminogenic risk factors. This is partially due to a late onset of substance abuse and offending, as well as progress he appears to have made during his period of custody and detention. … [DFNM] was deemed a low risk with regards to the items Criminal Peer Associations, Attitude Towards Authority, Inadequate Problem Solving, Sense of Entitlement, and Attachment with Others. Due to his past substance abuse, he was deemed to be in the category of possible problematic risk factor for impulse control post release that could be mitigated by further AOD [alcohol and other drug] treatment with a focus on relapse prevention. He also noted that he has had no further lapses on to drug use in detention, remaining on a pharmacotherapy program (Buprenorphine – 22mg), and recently completing a 12-week AOD Treatment Program within the facility.
Acute Risk Factors
… [DFNM] also presented with an overall low risk level for acute reoffending risk factors. He was assessed as low risk on the items Anger/Hostility, Opportunity for Crime, Interpersonal Relationships, and Living Situation. He was deemed as a possible risk factor on release for Substance Use as noted above, and Employment due to no confirmed employment arranged for his release. However, it is noted in his support plan by Mr. Shaw that he will be offered referrals to increase his employability post release.”[28]
[28] Exhibit G
These factors must be seen in the context of the support that DFNM has found in Mr and Mrs Shaw and Mr Munro since he has been in the PIDC and also in the strength he has found for himself in managing, with the assistance of medication, his pain and his suicidal thoughts. He has no wish to return to Melbourne and to his past relationships with his wife or with Layla and their families. His focus is on the relationships that he has made in Perth and I find that they are made on a solid footing of mutual respect and understanding. In view of these matters and the opinion of Mr Ford, I find that the risk of DFNM’s reoffending if he were permitted to return to, and remain in, the Australian community is low.
DFNM’s view of the risk of his re-offending is supported by other witnesses. Mr David Shaw and Mrs Lorraine Shaw of Prison Fellowship, for example, each provided written statements dated 18 August 2016 and, together, gave another two statements dated 3 March 2017 and 20 September 2018. On the basis of their statements, I find that they first met DFNM in September 2015 and not long after he arrived at the PIDC. At the time, DFNM appeared to Mr Shaw to be heavily sedated and to be having difficulty in communicating. He was escorted at all times by officers of the PIDC and was clearly struggling with medical and other personal issues. That is consistent with the report of the IHMS dated 12 February 2018.
By the time Mr Shaw wrote his statement on 18 August 2016, he found DFNM to be a changed man. He had become a happy man who went out of his way to help others. His demeanour had changed from a man stressed by his circumstances to one who is much more relaxed and keen to rejoin and give to the Australian community. Mr Shaw’s observations are also supported by the clinical observations of the IHMS GP who reported on 7 February 2018 that DFNM was calmer, more stable and functioning and mobilising well on his current regime. In consultation with a pain specialist, the IHMS GP had commenced DFNM on opioid replacement in December 2015 in conjunction with other pain medication in order to manage his chronic pain. DFNM had indicated that he was reluctant to change his medication until he is released into the community and can be busier and more distracted from his pain.
If DFNM is permitted to remain in the community, he will have the support of Mr and Mrs Shaw who have offered to give him a home with them. In addition to their offer, I note that Mr Shaw had also spoken with the North East Metro Community Alcohol & Drug Service (NEMCADS) in Midland, a Perth suburb, and it had agreed to accept DFNM into their programme should he be released into the community and should he require their assistance. NEMCADS had agreed to do that in March 2017 but there is no reason to think that it would not do so now.
Mr Ford is a Program Manager and Senior Counsellor at Victoria Behaviour Change Centre. He conducted three interviews with DFNM for the purposes of preparing a report regarding DFNM’s risk and protective factors. One interview took place in 2016 and the last two in 2018. Mr Ford’s evidence is to the effect that DFNM has lowered the risk of his reoffending by lowering the risks of his reverting to substance abuse by remaining stable on pharmacotherapy while in immigration detention and engaging in drug and alcohol treatment. He also noted that relocation to a new area could be seen as a protective factor for DFNM as his only peers connected with his drug use reside in Victoria. DFNM has plans to accept Mr and Mrs Shaw’s offer that he live with them in Perth if he is permitted to remain in Australia.
Mr Ford’s evidence is that DFNM presents with an overall low risk level for stable criminogenic risk factors and an overall low risk level for acute re-offending risk factors. This is due, in part, to the late onset of his substance abuse and to the progress he appears to have made in his period of imprisonment and immigration detention. He remains on a stable medication plan and has daily counselling sessions with his mental health nurse. Despite having gained some levels of stability in his metal health, Mr Ford remained of the view that DFNM’s acute escalations in suicidal thoughts and behaviours due to his depression remained a concern. His mental health treatment remains a matter that would require high and consistent monitoring.
In light of DFNM’s somewhat extended history of mental illness, that and its treatment is a matter of some concern. As Mr Ford has reported, DFNM may still have suicidal ideations at times but the weight of evidence, including that from Mr Ford, is that he has found a much more stable path in the management of his mental health issues and the trials and tribulations he has experienced in the past. He has impressed Mr and Mrs Shaw, who are prepared to take him into their home. Mr Robert Munro, who has visited the PIDC regularly through his past involvement with Prison Fellowship has been similarly impressed. He has known DFNM for approximately five years and has seen him assume a role of encourager, mentor and purveyor of practical help to those around him.
Nobody can guarantee that another person will not tread an old path towards self-destruction and become a danger to others. All that I can do is to make an assessment on the evidence that I have. When I do that, I find that DFNM has faced many hurdles in coming to terms with his pain and with the disappointments and rejection that he has faced. He has turned to drugs and drugs have led to his offending behaviour but, since he was returned to prison after breaching his parole and being placed in immigration detention, he has done much to work with his health care workers to manage his pain and also his symptoms of anxiety and depression. He has attended a Drug and Alcohol programme in August 2017 and has turned his attention more to others and their needs as he has managed his own circumstances.
DFNM has placed some emphasis on his Christian faith. He has worked with Mr and Mrs Shaw in that regard. I find that he is genuine in the beliefs he holds but I also find that the more important thing is that it has assisted him to find a path on which he can see that he needs to be concerned about others. If he is released into the community, I find that Mr and Mrs Shaw will provide a home for him from which he can continue to do that. They have also made arrangements for him to be accepted by NEMCADS to continue his work in remaining drug free. With that support behind him, I find that the risk of DFNM’s re-offending is low.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[29] The interests of each child needs to be considered.[30] In considering the best interests of the child, paragraph 13.2(4) provides:
[29] Direction No. 79 at [13.2(2)]
[30] Direction No. 79 at [13.2(3)]
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non‑citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the 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.”
C.1 Consideration
DFNM does not have any children of his own. His uncle in Melbourne has two daughters with whom DFNM has been in contact by way of the internet from time to time. On the evidence before me, only one of his cousins is under the age of 18 years. If he were to be allowed to remain in Australia, DFNM said, he would make occasional visits to see them. The relationship between DFNM and his uncle, is much more remote than it used to be before he started to take drugs. DFNM has not seen his Melbourne-based uncle and his family since he was placed in immigration detention at the PIDC in May 2015. In view of that and on the little evidence that I have, I find that DFNM’s involvement in his uncle’s children’s lives is peripheral at best. Their lives and interests would not be much affected one way or the other if he were to be in Lebanon rather than Perth.
D. Expectations of the Australian community
Paragraph 13.3(1) 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.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be established by the evidence. Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence. Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[31]
[31] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.
I note that Mortimer J considered paragraph 13.3(1) in YNQY v Minister for Immigration and Border Protection[32] when she said:
“In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).”[33]
[32] [2017] FCA 1466
[33] [2017] FCA 1466 at [76]-[77]
I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. In earlier cases, I have set out my reasons.[34] Since then Griffiths J has also expressed his disagreement with her Honour’s reasoning in YNQY if it were to be understood as stating that the primary considerations of expectations of the Australian community will always weigh against revocation. He did so in DKXY v Minister for Home Affairs[35] where his Honour said:
[34] See, for example, Re QKVH and Minister for Home Affairs [2018] AATA 1855 at [44]-[50]
[35] [2019] FCA 495
“… [T]here are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction ...
I also respectfully disagree with the primary judge’s reference at [77] of YNQY that Robertson J’s reasons for judgment in Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]-[66] supported her Honour’s view that it was ‘inevitable’ that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do. It is desirable to set out those paragraphs from Uelese:
64.In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that 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, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
65.This ground of review does not attack the statements in Direction no. 65. In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
66.I conclude that there was no jurisdictional error in the statement of the Tribunal, at [109]: ‘I have no evidence to enable me to determine the expectations of the Australian community in this matter, other than the guidance provided by the Direction itself’ or in the Tribunal’s consideration of the expectations of the Australian community.
These passages are directed to a submission made by the applicant in that case to the effect that the AAT there had no evidence to make the findings that it did regarding the expectations of the Australian community. In rejecting that submission, his Honour said that those expectations were not a matter which required evidence because the Direction itself contained statements concerning the Government’s views as to those expectations. There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given ‘due regard’, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have ‘due regard’ to the Government’s views on Australian community expectations. What amounts to ‘due regard’ will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.”[36]
[36] [2019] FCA 495 at [31]-[33]
D.2 Consideration
Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia. It then states the circumstances in which it may be appropriate not to revoke a mandatory visa cancellation. Those circumstances arise if a non-citizen has breached Australia’s laws, there is an unacceptable risk that he or she will breach the trust, and so expectation, that he or she will obey Australia’s laws while in Australia or where the non-citizen has been convicted of offences in Australia or elsewhere. The Australian community would expect that visas should not be held by persons who commit certain types of offences.
The discretionary nature of the decision is preserved as is the determination of what amounts to “an unacceptable risk” of breaching the Australian community’s expectation that Australian laws will be observed by non-citizens in Australia. Those discretions must also be guided by the general statements in paragraph 6.2 and the principles in paragraph 6.3 of Direction No. 79. There the Minister has placed emphasis on the protection of the Australian community from harm as the result of criminal conduct or other serious conduct by non-citizens.[37] In summary, the principles in paragraph 6.3 emphasise the privilege that it is to be granted a visa to be in Australia and the expectations that are commensurate with that privilege.
[37] Direction No. 79 at 6.2(1)
DFNM has abused the privilege he was given when he was granted a Partner visa. When he was granted that visa, he was a person who had come to Australia looking forward to his marriage and to making his life here. He worked and hoped to start a family with his wife but he found himself ostracised by his wife and her family. He was a person who already had grappled with pain issues and with minimal education. Despite finding tiling work in which he was skilled, he did not have the inner strength to withstand the hurt he experienced in his marriage and his pain issues. He did not reject the offer by his workmate to try cannabis or methamphetamine. Having become dependent on those drugs and without the appropriate tools to deal with his physical and mental issues, it was inevitable that he turned to crime.
The events that led to his committing the 22 crimes does not excuse his doing so and I have come to the view that the Australian community would not think that those events provide any excuse. He has allowed himself to take a path that has led to his breaching the security of other people’s homes and, in one instance, not simply stealing from those people but ransacking several rooms in the house. That is behaviour that is not acceptable to the Australian community and is a breach of the privilege that was extended to him in granting him a Partner visa. It is an even greater breach in his case given that, on his evidence, he was given that visa on the basis of his claims of domestic violence. His wellbeing has been at risk but, despite that, he has put the wellbeing of others at risk by entering their homes, stealing their property and, on two occasions in the heat of an altercation, threatening harm to them.
Other considerations
The five other considerations are summarised in 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 obligation
A non-refoulement obligation is an obligation not to require a person to return to, or to deport or expel a person to, a place where he or she will be at risk of a specific type of harm. Non‑refoulement obligations arise under a variety of international conventions. Paragraph 14.1(1) states:
“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.”
Paragraph 3(a) is consistent with my earlier conclusion that consideration of whether or not a person meets all of the criteria for a protection visa does not extinguish separate non-refoulement obligations. They remain an issue for consideration.
Direction No. 75 is directed to applications for protection visas and does not operate more widely. It does not extend to consideration of whether the cancellation of DFNM’s refugee visa should be revoked under s 501CA(4) raises different considerations again. They arise in the context of considering whether there is “another reason why the original decision should be revoked” under s 501CA(4)(b)(ii). They do not go beyond that consideration to a further consideration directed to whether or not DFNM is owed protection obligations of the sort that are given statutory expression in s 36 of the Migration Act.
What is in issue at this point is whether Australia has non-refoulement obligations in relation to DFNM. In so far as a non-refoulement obligation is provided for in Art 33 of the Refugees Convention, he must first be a refugee. Determination of whether he is or is not a refugee must be made in the context of that convention and not that of the definition in s 5H of the Migration Act. Section 5H defines the word for the purposes of the application of that Act and the regulations to a particular person. Although expressed in terms similar to those found in Art 1A and 1F, that definition does not apply when the word is used for the purposes of the convention and not of the Migration Act. As s 197C illustrates, the Migration Act may operate to remove a person from Australia regardless of whether Australia has any non-refoulement obligations in relation to a person who is an unlawful non-citizen.
Whether a person is a “refugee” for the purposes of Article 1A(2) as amended by the 1967 Protocol depends on whether “… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and unable or, owing to such fear, is unwilling to avail himself of the protection of that country …”. Art 1F excludes certain persons from the definition when there are serious reasons for considering that the person seeking refuge has committed certain crimes or been guilty of certain acts. The definition of “refugee” in s 5H of the Migration Act reflects the terms of Articles 1A and 1F but the resolution of a person’s status as a refugee or otherwise for the purposes of the non-refoulement obligation in Art 33 the Refugees Convention does not require consideration of whether he or she is entitled to a protection visa under the Migration Act.
If a decision is made that a person is a refugee for the purposes of the Refugees Convention, the next question raised by Art 33(1) is whether returning the person to a certain territory would be to return that person to a place where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion. If that question is answered in the affirmative, the last question to be answered is posed by Art 33(2). It requires consideration of whether there are reasonable grounds for regarding the person as a danger to, in this case, Australia’s security or, who having been convicted by final judgment of a particularly serious crime, constitutes a danger to the Australian community.
The term “particularly serious crime” has not been defined in the Refugees Convention. I note that it has been defined in s 5M of the Migration Act and I have set that out above. I do not think that the definition in s 5M of the Migration Act for the purposes of s 36(1C)(b) can be applied to the same expression when it is used in Art 33(2). They are different instruments. The approach to be taken when considering Art 33(2) would seem to be that adopted by Katz J in A v Minister for Immigration and Multicultural Affairs:[65]
“41 As to whether A had been convicted of a particularly serious crime within the meaning of Art 33(2), in Betkoshabeh v Minister for Immigration and Multicultural Affairs [1998] FCA 934; (1998) 157 ALR 95 at 100 (Finkelstein J) held that, in order to determine whether a crime is a particularly serious one for present purposes, it is generally necessary to have regard to the circumstances in which it was committed, although he accepted the possibility that there can be crimes which are particularly serious per se. In Betkoshabeh v Minister for Immigration and Multicultural Affairs [1999] FCA 16 (unreported, 15 January 1999), a later case involving the same parties, Marshall J (at par 8 of his reasons for judgment) agreed with the approach of Finkelstein J. Accepting that it would be necessary, in order to determine whether A had been convicted of a particularly serious crime, to have regard to the circumstances in which he committed it, it would certainly have been open to the Tribunal here to conclude that the crime of which A had been convicted had been, in the circumstances, a particularly serious one. I say that because the crime had involved an attempt to introduce a substantial quantity of heroin into the Australian community, not for personal use by a person addicted to the drug, but for financial gain. Be that as it may, the Tribunal did not describe A’s crime as being a ‘particularly serious’ one, although it did describe it both as being ‘serious’ and as being of such ‘gravity’ that the Tribunal could not conclude that the risk of A’s re-offending was sufficiently small to justify his continued presence in Australia.”[66]
[65] [1999] FCA 227; Burchett, Lee and Katz JJ
[66] [1999] FCA 227 at [41]
If a crime were regarded as particularly serious within the meaning of Art 33(2), his Honour went on to consider whether separate consideration has to be given to whether that gave rise to a presumptive conclusion that the appellant in that case constituted a danger to the Australian community. He observed:
“… The issue was not one addressed directly by Finkelstein J in the Betkoshabeh Case,[[67]] although there may be a suggestion that his Honour favoured the conclusive presumption approach in his statement (at 100) that the crime committed ‘must be “particularly serious” as well as a crime that shows that the refugee is a danger to the community’. Certainly, the conclusive presumption approach has been taken by federal Courts of Appeals in numerous Circuits, when construing American domestic legislation both materially identical to and enacted to implement Art 33(2): see, for example, the annotation in 87 ALR Fed 646 at 651-53 (1988), and the October 1998 supplement thereto at 21; and see, for a similar Canadian approach, Hoang v Minister of Employment and Immigration (1990) 120 NR 193 at 197 (Federal Court of Appeal; Urie, MacGuigan and Linden JJA).”[68]
[67] [1998] FCA 934; (1998) 84 FCR 463; 157 ALR 95; 28 AAR 21; 51 ALD 328
[68] [1999] FCA 227 at [42]
While reaching the same conclusion regarding the expression “particularly serious crime”, the majority, Burchett and Lee JJ did not agree with him that any presumptive conclusion could arise or that the North American authorities should be applied in Australia. They referred to Finkelstein J’s judgment in the Betkoshabeh case:
“… His Honour said:
‘It must be “particularly serious” as well as a crime that shows that the refugee is a danger to the community’. (Emphasis added.)
That seems to us to be saying that both of two things are required, not that one of them negates the need to consider the other. Betkoshabeh, as we read it, is consistent with the decision of Davies J in Re Ceskovic (1979) 2 ALD 453 at 454. We note too that in The Law of Refugee Status (1991) by J C Hathaway at 226 the position is stated:
‘[I]t is not enough that the crime committed have been `serious', but it must rather be “particularly serious” and sustain the conclusion that the offender “constitutes a danger to the community”.’ (Emphasis added.)
See alsoImmigration and Refugee Law in Australia (1998), by M Crock, at 157.
To the considerations we have mentioned may be added the consideration that article 33(2) is a qualification upon the principle of non-refoulement of a refugee stated in article 33(1), a principle concerned with some of the most precious of human rights, including life itself. In this context, it seems unlikely there was an intention to write the significant words "a danger to the community" out of the provision, thereby weakening the protection it offers to refugees. Especially is this so as article 33 operates with respect to persons who have already been found to be refugees.”[69]
[69] [1999] FCA 227 at [4]-[5]
Non-refoulement obligations also arise under the ICCPR and the Convention against Torture.
A.2 Consideration
DFNM has said that, apart from his mother, his family in Lebanon has disowned him because he has converted to Christianity. His brother has told him that it would be better if he were to die in Australia in immigration detention. His father and his uncles have told him that they would kill him were he to return to Lebanon. DFNM is afraid that they will carry out their threats because they are devout Muslims and will not understand his Christian beliefs. He does not think that he will be able to call on other Christians living in Lebanon to intercede with his family for they will see the problem as a family problem to be resolved within the family. Only DFNM’s mother speaks with him and then only occasionally and in secrecy. Even though she would want to support him, she would not be able to go against his father’s wishers.
The DFAT Country Information Report on Lebanon dated 23 October 2017 (DFAT CIR) describes the Lebanese Constitution as guaranteeing freedom of religious practice and association. Eighteen religious sects, including four Muslim sects, 12 Christian sects, Druze and Judaism are recognised. The DFAT CIR also notes that all 18 religious communities recognised in Lebanon are able to apply their own laws and maintain their own judicial systems to deal with matters pertaining to personal status, marriage, divorce and other family issues.
In general, the DFAT CIR describes Lebanon as adopting a tolerant attitude towards conversions from one faith to another. The DFAT CIR referred to a statement by the UN Special Rapporteur on Freedom of Religion in 2015 that the situation between religious groups is largely amicable, that individuals were generally able to practise their religion freely and that there was no religious persecution. DFAT is aware only of limited examples of individuals being targeted for reasons based on their religion alone. Nonetheless, the DFAT CIR added, there is low-level societal discrimination against particular religious groups in some areas and that converts may face some society discrimination.[70]
[70] Exhibit L at [3.13]-[3.19]
Later in the report, mention is made of DFAT’s understanding that there is a growing feeling of marginalisation in the Christian community. Overall, DFAT assessed that Christians are not generally at risk from official or societal discrimination or violence based on their religious identity alone.[71]
[71] Exhibit L at [3.34]-[3.36]
DFNM spoke of living in a different part of Lebanon but he fears that his father and his uncles would find him and kill him to preserve the family’s honour. Even if he were to move away from the area in which his family lives to another part of Lebanon, he fears that his family will find him. I accept that his fears are genuinely held. I find that some at least of DFNM’s suicide attempts have been made in the context of his fear of being returned to Lebanon. In many instances, the follow up discussions with medical staff has focused on his fear of returning to Lebanon as a Christian who has converted to the faith from Islam. His fear is largely centred on fear of his father and his uncles but it also encompasses fear of the response of the followers of Islam to him as a former follower of Islam who has become a Christian.
Even though I have accepted that DFNM has a genuinely held fear, is it a well-founded fear? I have little evidence on the issue. I have, and accept, that DFNM’s fear is a fear held by at least some other Muslims who have converted to Christianity and who have lived in Lebanon. My finding regarding fears held by others in Lebanon is based on an extract dated 17 August 2016 from Aleteia, which is an online site promoting the Christian religion, and on an article entitled “Muslims Converting to Christianity in Unprecedented Numbers Part 1” dated 28 June 2017. The extract from Aleteia reports that Father Majdi Alwai, a Christian priest who was raised a Muslim before converting to Christianity, had asked Aleteia’s Arabic team not to publish images of newly baptised Lebanese Christians because they feared for their lives.[72] The later article refers to the fears held by a particular Syrian family who live in Lebanon and who have converted to Christianity. The family’s fears centred on danger from members of their own family who were of the Muslim faith. It could be said that these are only two examples but they are indications that DFNM’s fears are held by others who have converted from Islam to Christianity as he has done.
[72] Exhibit U
These examples and DFNM’s genuine fears do not lead me to conclude that he has a well-founded fear of persecution by reason of his religion within the meaning of Art 1A. In so far as DFNM’s fear is focused on any actions in which the Lebanese authorities may engage, I do not find it supported by the DFATCIR or other evidence I have. I do accept, however, that it will be harder for him to hide his conversion for he has had a crucifix tattooed on his forehand. I also accept the evidence that there are areas of Lebanon where he would be able to live without coming into contact with his family. He might need to move to one of those areas so that he feels safer but I do not have evidence that satisfies me that his family would kill him if he were not living near them. The DFATCIR and other evidence does not lead me to find that the Lebanese authorities would not come to DFNM’s aid and protection if he were persecuted.
In summary, I find that DFNM’s conversion to Christianity would mean that his life would be threatened as a consequence were he to return to the area of Lebanon where his family lives. The threat would come from his family. While the DFAT CIR acknowledges that there is low-level societal discrimination against particular religious groups in some areas and that converts may face some society discrimination, DFNM could reduce the level of discrimination by re-location within Lebanon. On the basis of that report and the reports to which DNFM referred, I acknowledge that there is a growing feeling of marginalisation in the Christian community. At the same time, the evidence that I have leads me to conclude that Christians, and those who have converted from Islam to Christianity, are not generally at risk from official or societal discrimination or violence based on their religious identity alone. I am not satisfied that the Lebanese government would not, or could not, provide DFNM with the level of protection that he is entitled to expect under international law.
I must consider the impact on him were DFNM to relocate to an area of Lebanon where his family does not live. That was established by the High Court in CRI028 v Republic of Nauru.[73] My obligation to do so:
“… arises as part of the requirement in Art 1A(2) of the Refugees Convention that a person be outside the country of their nationality ‘owing to’ a well founded fear of persecution for one of the reasons identified in that article. If there is an area in the country of their nationality where the person would not have a well-founded fear of persecution (where protection of that country would be available), and the person could reasonably be expected to relocate there, they are not outside the country of their nationality owing to a well founded fear of persecution. The ‘causative condition’ in Art 1A(2) is not satisfied .
Whether a person could reasonably be expected to relocate to another area in the country of their nationality involves a comparison between the circumstances or conditions that prevail in the person’s existing area of residence and those circumstances or conditions that prevail in the other identified area, with a view to assessing the impact of the relocation on the person . The assessment is not concerned with comparing a person's quality of life in the other identified area with the basic norms of civil, political and socio-economic human rights recognised in international human rights instruments. Importantly, the reasonableness of relocation "depend[s] upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality".
Put in different terms, the assessment of whether a person can relocate is not answered only by reference to the risk of harm. The assessment also requires consideration of the individual circumstances of the person, and what is practicable and reasonable for that person. As this Court said in SZATV v Minister for Immigration and Citizenship , ‘[w]hat is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality’. The practical realities must be carefully considered. And, as will be explained, the particular circumstances may include the person’s family situation. …”[74]
[73] [2018] HCA 24; (2018) 356 ALR 50; Bell, Gordon and Edelman JJ
[74] [2018] HCA 24; (2018) 356 ALR 50 at [24]-[26]; 56 per Gordon and Edelman JJ
DFNM’s need to have access to psychiatric and health care generally has been cited as a reason for his not being able to relocate to an area outside the area where his family lives. The evidence that I have regarding psychiatric and health care generally does not distinguish among Lebanon’s regions regarding its availability. DFNM’s family lives in one city but DFNM’s skills and training as a hairdresser would be transportable to other regions of Lebanon. He is not married and does not have his own family and so does not need to take into consideration anybody’s interests other than his own. He has raised the presence of Hezbollah in Lebanon and, in particular, its control over Beirut’s Rafic Hariri International Airport. Even if Hezbollah were aware that a person such as DFNM were a returning asylum seeker, the DFAT CIR states that Hezbollah is unlikely to target a returning individual unless he or she presented a direct threat to authority. I find that DFNM is not such a person and that he is unlikely to face any problems were he to return to Lebanon. Any threat he might face from Hezbollah would be a threat faced by the population generally. If he were to return to Beirut, DFNM could seek assistance from non-government organisations even though there would be no government assistance available.
Therefore, although I find that there is a real risk that DFNM will suffer harm from his family if he were to return to the area of Lebanon where they live, I am not satisfied that the harm would be persecution as it is understood in Art 1A of the Refugees Convention. Therefore, I find that DFNM is not a refugee within the meaning of the Refugees Convention.
It follows that DFNM is not a refugee for the purposes of Art 33(1) of the Refugees Convention. Therefore, he is not owed non-refoulement obligations under that convention. I am not satisfied that non-refoulement obligations would arise under the ICCPR or the Convention against Torture. With respect to the latter, I am not satisfied that there are substantial grounds for believing that there is a real risk of irreparable harm of the sort contemplated by Arts 6 or 7. Those Articles are set out in above. Provided he chooses to live in areas other than those in which they reside, the threats from DFNM’s family do not bring him within their scope.
Non-refoulement obligations may also arise under the Convention against Torture. I am not satisfied on the evidence that there are substantial grounds for believing that DFNK would be in danger in Lebanon of being subject to torture or other cruel, inhuman or degrading treatment.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 79 states:
“… 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 non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
B.1 Consideration
DFNM has some ties with his uncle in Melbourne and with his uncle’s family but those ties, which were once well-grounded, have become much less so in view of his offending. There remains some contact but not very much. Where DFNM’s contacts lie are in Perth where he has formed strong relationships with Mr and Mrs Shaw and Mr Munro. So strong are the ties that Mr Shaw flew from Perth to Melbourne specifically and only in order to attend the hearing of this matter. They have seen the struggles that DFNM has faced and have stood by him. It cannot be said that he is like a son to them but he is certainly someone whose interests lie very much at their hearts and whom they wish to help in his endeavours to become a functioning and respected member of the Australian community.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of DFNM’s visa and the non-revocation of that cancellation would not have any particular or quantifiable effect on Australian business interests. He is a men’s hairdresser and has learnt to become a skilled tiler. He can use his skills to earn a living and is maintaining his hairdressing skills while in the PIDC but, whether or not he remains in Australia will not have any impact on the availability of hairdressing or tiling and will have no impact on Australian business interests.
D. Impact on victims
At paragraph 14.4(1), Direction No. 79 states:
“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.”
D.1 Consideration
There are various victims of DFNM’s offending. While I have some evidence in their statements as to the effect that his offending had on the victims of some of his crimes, I do not have any evidence of any impact that a decision not to revoke the cancellation would have on them.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 79 also states in paragraph 14.5(1) that:
“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.”
E.1 Consideration
Although I have found that Australia does not have non-refoulement obligations in respect of DFNM, I find that DFNM is likely to face danger from his family if he were to return to Lebanon. Although related to that likelihood, I have had regard to DFNM’s fear that he will be killed by his family because he has converted from Islam to Christianity. His fear of what his family members, apart from his mother, will do has led to his attempting to take his own life rather than wishing to face them.
I have had regard to DFNM’s concerns regarding the mental health facilities available in Lebanon. The World Health Organisation (WHO) conducted an assessment of the mental health system in Lebanon in 2015 using the World Health Organisation Assessment Instrument for Mental Health Systems (WHO-AIMS). In the Executive Summary to WHO’s report, it is said that there is no authority to oversee the human rights of individuals with mental conditions and to inspect mental health facilities in Lebanon. In Lebanon:
“There are 42 mental health outpatient facilities in Lebanon, which provide services to an estimated 75 users per 100,000 population. There are 38.52 beds per 100,000 population in Lebanon’s five mental hospitals, which serve 47.41 patients per 100,000 population and have an occupancy rate of 97%. There are eight community-based psychiatric inpatient units available with a total of 1.5 beds per 100,000 population. The most commonly assigned diagnosis in mental hospitals is schizophrenia, while in outpatient facilities and psychiatric inpatient units it is mood disorders.
There is a lack of mental health training for primary health care workers and interactions between the primary care and mental health system are rare.
The total number of human resources working in public mental health facilities, NGOs, and private practice is 15.27 per 100,000 population. There are an estimated 1.26 psychiatrists, 0.87 other medical doctors (not specialized in psychiatry), 3.26 nurses, 3.42 psychologists, 1.38 social workers, and 1.06 occupational therapists, working in mental health per 100,000 population.”[75]
[75] Exhibit X at 9
The estimated number of psychiatrists per 100,000 was somewhat below that estimated in the report of the UNHCR in December 2013 in its Assessment of Mental Health and Psychosocial Support Services for Syrian Refugees in Lebanon”. The estimate in the UNHCR assessment was taken from a WHO-AIMS report prepared in 2010 and estimated 1.5 psychiatrists per 100,000. Some 60 of those were registered in the Lebanese Psychiatric Society (LPS) with another 15 or so registered in the Order of Physicians but not with the LPS.[76]
[76] Exhibit AC at 14
It may be that the mental health services are not as extensive in Lebanon as they are in Australia but I do not have evidence of those in Australia on which to make any finding to that effect. What I do find on the basis of the WHO-AIMS assessment is that:
“… even though there are many outpatient clinics, the mental health system is quite hospital-based with an occupancy rate of 97%, thus increasing the direction of waiting list. The care provided, both inpatient and outpatient, is mainly biological care (provision of psychotropic medication). Also, while a majority of individuals treated at mental health facilities are able to access psychotropic medicines, a continuous supply is not yet ensured for all the vulnerable population and only few persons are provided with psychosocial interventions. The cost of such interventions remains high and affordable to a limited population group. The distribution of psychiatric hospitals remains concentrated in the largest city thus preventing access to persons living in rural areas. …”[77]
[77] Exhibit X at 33
DFNM’s Hepatitis C is, as I understand the evidence, being treated while he is in the PIDC and he is expected to make a full recovery. Even if he has not, I find that treatment is available to him in Lebanon. The Lebanese government subsidises treatment for poorer people on the basis of a nationally adapted guidebook developed with WHO support in 2012. For those who are not subsidised, the cost of treatment has been prohibitively high.[78]
[78] Exhibit 7
In conclusion, I find that DFNM’s access to any treatment he requires for Hepatitis C will depend on his ability or otherwise to fund its cost either with the assistance of the Lebanese government’s treatment scheme.
CONCLUSION
While a predecessor of Direction No. 79, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in either Direction No. 65 or now Direction No. 79 leaves the fulcrum to be drawn by implication. When account is taken of the considerations in Part C together with the Preamble to the Direction set out in paragraph 6, it is clear that the Minister intends that a decision-maker undertake a balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors. Generally, the primary considerations are to be give greater weight than those described as “other considerations”.
DFNM continues to suffer from mental health issues. He receives treatment for them and he is compliant in taking that treatment. His mood fluctuates but they are, I find, exacerbated by being held in immigration detention and by his fears of being required to return to Lebanon where he genuinely feels his life is in jeopardy. When he finds himself in a dark place, the difference between his current behaviour and that before he completed his term of imprisonment is that he no longer turns to taking drug although he has turned his actions upon himself by self-harming. That is an activity that impinges upon Australia’s health care resources but it is not an activity that impinges upon the safety of the Australian community.
I have found that the risk of DFNM’s returning to his former offending behaviour is low. That is partly attributable to his complying with his treatment regime but also with the support he has found in Mr and Mrs Shaw and Mr Munro. He is also determined to put his past behind him and to start over in Perth where they live and where he has no past associations with those who assisted him in losing his way. Mr and Mrs Shaw have made arrangements to obtain the support that he needs and are opening their home to him so that he has a stable environment in which to start a new life.
I have found that Australia does not have a non-refoulement obligation under Art 33 of the Refugees Convention in respect of DFNM but I do find that he has a genuine fear that his life will be at risk should he return to Lebanon. Apart from his mother, he will have no support or protection from his family and even his mother will not be able to take any overt action to assist or protect him.
In so far as his Hepatitis C has not been treated and cured in Australia, DFNM might find it more difficult to afford treatment in Lebanon if he were not to qualify for any subsidy. Treatment of his mental health may be more problematic as the evidence I have points to there being waiting lists for assistance. The treatment that is available largely relies on drug therapies rather than on any other means of treatment.
In view of his concerns about his family’s attitude towards his conversion to Christianity, I find that DFNM would feel the need to live in another part of Lebanon distant from them. Even so, he would continue to fear for his safety. He does have skills in hairdressing and would be able to follow his profession in Lebanon where he previously worked as a hairdresser. There would not be any language or cultural barriers to his returning to Lebanon. He would not see his Melbourne based family members but could maintain contact with them over the internet as he does now.
In view of all of these matters, I have decided that these matters all lead me to conclude that there are other reasons why I should exercise the discretion under s 501CA(4)(b)(ii) to revoke the decision made on 22 April 2015 by virtue of s 501(3A). He does not constitute a danger by remaining in Australia and his risk of reoffending is low. He does, however, have a genuine fear that his life will be in danger from his family even if he can live in a region of Lebanon where Christianity is tolerated. His borderline IQ brought about in part by his motorbike accident before he came to Australia and his drug use since he has been here will make it more difficult for him to manage his fears and his mental health. It will make it more difficult for him to manage his conversion to Christianity in a Muslim world. He needs support that he will not find with his family in Lebanon but that he has with Mr and Mrs Shaw in Australia. Therefore, I have decided to set aside the decision dated 14 January 2016 not to revoke the cancellation. In its place, I have substituted a decision to revoke the cancellation on the basis that there is another reason (or reasons) to revoke it under s 501CA(4)(b)(ii) of the Migration Act.
DECISION
For the reasons I have given, I:
(1)set aside the decision made by a delegate of the Minister on 14 January 2016 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa on 22 April 2015 under s 501(3A); and
(2)substitute a decision that the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa under s 501(3A) be revoked under s 501CA(4).
The practical effect is that DFNM continues to hold a visa entitling him to remain in Australia.
| I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
[sgd]..................................................................
Associate
Dated: 24 September 2019
Dates of hearing: | 11 and 12 February 2019 |
| Counsel for the Applicant: | Mr Angel Aleksov |
| Solicitors for the Applicant: | Ms Nina Merlino and Ms Carina Ford |
| Solicitor for the Respondent: | Mr Ned Rogers Australian Government Solicitor |
Articles 6 and 7 of the ICCPR state:
“Article 6
1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
“(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)the person committed a serious non-political crime before entering Australia; or
(c)the person has been guilty of acts contrary to the purposes and principles of the United Nations.”
Section 5J provides for the circumstances in which a person will, and will not, have a well-founded fear of persecution. I note that the “real chance of persecution” for reasons of race, religion, nationality, membership of a social group or political opinion must relate to all areas of a receiving country: Migration Act; s 5J(1)(c).
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