Dinkha v Minister for Home Affairs
[2018] AATA 3037
•24 August 2018
Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037 (24 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3271
Re:Maykin Dinkha
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 August 2018
Place:Sydney
The decision under review is affirmed.
...............[sgd].........................................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – multiple sentences of imprisonment – repeated breaches of bond, bail and community service orders – repeated breaches of regulations in prison and immigration detention – drug and alcohol misuse – failure to participate in rehabilitative programmes – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BFXK and Minister for Immigration and Border Protection [2018] AATA 886
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Darwich and Minister for Immigration and Citizenship [2007] AATA 2106
Do and Minister for Immigration and Border Protection [2016] AATA 390
Eden v Minister for Immigration and Border Protection [2015] FCA 780
Ferreira and Minister for Home Affairs [2018] AATA 2599
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Mahu and Minister for Immigration and Border Protection [2018] AATA 161
Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567
NKWF and Minister for Immigration and Border Protection (Migration) [2017] AATA 813
PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Ulese v Minister for Immigration and Border Protection [2016] FCA 348YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b)
Gerges F A, ISIS: A History (Princeton University Press, USA, 2016)NSW Department of Justice, Call for professionals to deliver reoffending reduction programs (press statement, 23 February 2017)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 August 2018
THE APPEAL IN QUESTION
Maykin Adnan Dinkha was the holder of an offshore humanitarian visa (Class XB, subclass 202, Global Special Humanitarian) with which he arrived in Australia on 9 November 2007.
That visa was cancelled by the Department of Home Affairs on 15 May 2018 under section 501(3A) of the Migration Act 1958 (Cth) (the Act) because Mr Dinkha’s extensive criminal record meant that he failed the character test which is required to be met under the Act.
That cancellation decision was reviewed by a Delegate (the Delegate) of the Minister for Home Affairs (the Minister), who on 4 June 2018 decided not to revoke the visa cancellation.
On 13 June 2018 Mr Dinkha appealed to this Tribunal to review that non-revocation decision and his appeal was heard on 13 and 14 August 2018. Under the provisions of section 500(6L)(c) of the Act the Tribunal is required to publish its determination by 29 August 2018; any failure to do so will result in the decision under review being taken to have been affirmed.
MR DINKHA’S PERSONAL HISTORY
Mr Dinkha was born on 2 June 1991 in the city of Mosul in the Nineveh Province of Iraq. By nationality he is an Iraqi citizen. Ethnically he is a member of the Assyrian community and confessionally he is a Christian. His status as an Assyrian Christian is material to various aspects of his appeal.
At some (unspecified) time around October 2004 Mr Dinkha’s father was killed. There is no evidence before the Tribunal which is in any way probative of how this killing came about. In evidence Mr Dinkha’s mother (Mrs Zia) suggested that it might have been related to the fact that that the late Mr Dinkha senior apparently worked for the American forces in Iraq. Mr Dinkha himself suggests it might more likely be related to the fact that his father was an Assyrian Christian and that Mosul has been one of the principal centres in which the barbarity of the Islamic State (IS or Islamic State in Iraq and Syria - ISIS) has been most overtly on display.
Both Mr Dinkha and his mother referred to the fact that, at the same time as the killing of their father/husband, their young sister/daughter (aged approximately 10 years) was kidnapped. By whom, exactly when, and exactly how she was restored to her family cannot be stated with any certainty but this appears to have been some time in 2005.
After these events the family fled to a refugee camp in Syria where they remained until they were, with the assistance of family members already in Australia, able to arrange to travel to Australia arriving in 2007. Mr Dinkha’s immediate family in Australia consists of his mother (Mrs Zia), his two brothers (elder, Martin and younger, Michel)[1] and his younger sister Mariam who has recently married.
[1] In some documents the younger brother’s name is recorded as Michel and in others as Michael. In this decision where one or other spelling is given, it is in accordance with the spelling in the document cited.
Mr Dinkha has lived at several addresses in Sydney, primarily in Fairfield and Harris Park and on most occasions has resided with his mother and at least one of his other siblings.
MR DINKHA’S CRIMINAL RECORD
Mr Dinkha has an extensive criminal record, referred to by Sentencing Magistrate Bugden as a “shocking record”.[2] The crimes are generally what might be characterised as “low level” offences, but they are numerous and repeated. The Tribunal is conscious of the comment made by the Federal Court in Eden to the effect that it should not
be misled by Orwellian terminology in a statute relation to the character of particular conduct. That the descriptor “substantial criminal record” is used does not mean that any sentence for offending conduct falling within that descriptor is automatically and objectively serious.[3]
[2] Section 501 – G Documents at [29]
[3] Eden v Minister for Immigration and Border Protection [2015] FCA 780 at [25] per Logan J
Full details of Mr Dinkha’s offences are set out in the Respondent’s Statement of Facts, Issues and Contentions (pages 2 to 4) and in the National Police Certificate.[4]
[4] Section 501 – G Documents at [21]-[25]
They may be summarised as follows:
·Goods in custody presumed stolen: 4 offences
·Assault occasioning actual bodily harm: 3 offences
·Possession of a prohibited drug: 6 offences
·Supply of a prohibited drug: 1 offence
·Driving while unlicensed or disqualified: 4 offences
·Breach of bail: 1 offence
·Stealing: 2 offences
·Possession of offensive weapon: 2 offences
·Affray: 3 offences
·Unlawful entry: 2 offences
·Resisting police: 2 offences.
These offences took place between 2009 and 2017.
They resulted in at least seven separate sentences of incarceration for three months or more, with the longest being a sentence of 2 years and 8 months imposed in September 2013 (with a non-parole period of 1 year and 4 months). In addition there were at least six occasions in which Mr Dinkha was held in custody for a matter of days.[5]
[5] Tender Bundle at [380]-[383]
In addition Mr Dinkha was placed on some form of bond, bail or community service order on nine or ten occasions. He repeatedly breached these or failed to attend mandated programmes and interventions as is discussed below. Call-ups for these resulted in a number of his shorter term periods of imprisonment.[6]
[6] Respondent’s Statement of Facts, Issues and Contentions at [8]
MR DINKHA’S RECORD IN PRISON AND IMMIGRATION DETENTION
The Respondent brought to the attention of the Tribunal a variety of reports from both custodial (prison)[7] and immigration detention[8] authorities which spoke to Mr Dinkha’s unsatisfactory record in both compliance with management routines and other breaches of regulations or discipline.
[7] Tender Bundle at [382]-[383]
[8] Further Tender Bundle at [649]-[693]
In prison these offences/breaches have included possession of offensive weapons, assaults and failure of prescribed drug test – although in evidence Mr Dinkha denied ever having used drugs while in prison.
In immigration detention Mr Dinkha’s record reveals that he was involved in a number of violent incidents, some as perpetrator and some as victim, and offences of being in possession of contraband. On some occasions Mr Dinkha behaved in an aggressive and offensive manner towards immigration detention staff and was found to have, on at least one occasion, assaulted a staff member.
Mr Dinkha is physically a very slight individual who told the Tribunal that he is often victimised because of his lack of height or physical bulk, and there is no reason not to give some credit to this statement given the nature of prison and immigration detention environments. However it is not possible to overlook the extent and regularity of these physical confrontations nor to ignore wilful breaches of custodial routine and requirements.
MR DINKHA’S ATTITUDE TOWARDS REHABILITATIVE PROGRAMMES
Initially the Respondent made a claim to the effect that Mr Dinkha has demonstrated “no evidence of … participation in, or completion of” programmes of drug and alcohol support or post-trauma counselling.[9] However in final submissions to the Tribunal, the Respondent modified their position to the point of claiming that such participation had been only limited and cursory, had often resulted in non-completion and in any event was “plainly unsuccessful”.
[9] Respondent’s Statement of Facts, Issues and Contentions at [16]
It is a serious tragedy in this instance that while Mr Dinkha has been provided with numerous opportunities to participate in programmes he has, occasionally, commenced but rarely completed them. Had he taken advantage of these numerous opportunities, the Tribunal suspects, he would not have been in his current predicament.
In August 2010 Mr Dinkha was assessed by the Community Offender Services Probation and Parole Service at Liverpool Court as being suitable for intervention by the Service under a Community Service Order pursuant to the Crimes (Sentencing Procedures) Act 1999 (NSW).[10]
[10] Tender Bundle at [107]-[108]
On 24 January 2011 the Probation and Parole Service noted that Mr Dinkha had failed to report as required on four occasions, failed to comply with directions to undertake anger management and English language barrier courses and that his “response to supervision has been unsatisfactory”.[11] A further unsatisfactory report was recorded on 21 March 2011.[12] In April 2011 another report states that his “response to supervision has not improved since the initial breach report prepared in (sic) 24 January 2011 and update (sic) breach report on 21 March 2010 (sic)”.[13] In June 2011 there is yet another report of Mr Dinkha’s unsatisfactory response to supervision.[14]
[11] Tender Bundle at [111]-[112]
[12] Tender Bundle at [114]-[115]
[13] Tender Bundle at [627]-[628]
[14] Tender Bundle at [617]-[618]
On 10 August 2011 the NSW Department of Corrective Services issued a report which noted that Mr Dinkha had failed to attend the remedial English language programme as required as a condition of his then current bond; that he had failed to report on thirteen occasions and that his “response to supervision has been unsatisfactory”.[15]
[15] Tender Bundle at [479]-[480]
The EQUIPS[16] programme is run by the NSW Department of Corrective Services (part of the Ministry of Justice).
The EQUIPS programs target offending behaviour related to addiction, aggression and domestic abuse. The programs are designed to help offenders understand the factors that led to them offending in the first place, and to develop the skills they need to reduce their risk of offending again.[17]
[16] EQUIPS stands for explore, question, understand, investigate, practice and succeed
[17] NSW Department of Justice, Call for professionals to deliver reoffending reduction programs (press statement, 23 February 2017)
Mr Dinkha was offered the opportunity to participate in this programme which, in the opinion of the Tribunal, would have helped him address a number of his serious problems. He was enrolled but then simply left the programme half way during the initial presentation and thereafter failed to attend on a further three occasions. He also failed to report for urinalysis screening.[18]
[18] Department of Corrective Services reports dated 10 February 2016, 15 February 2016 and 17 February 2016. Tender Bundle at [329]-[331]
The MERIT (Magistrate’s Early Referral into Treatment) programme is similarly designed to try and divert young and first offenders into community-based programmes which will address their underlying criminal and personal behavioural problems with an aim to prevent reoffending and recidivism. Mr Dinkha was given an opportunity to participate in MERIT but failed to do so by failing to attend for an assessment session. Attempts by the MERIT programme officers to contact him were made, but he failed to respond.[19]
[19] Third Tender Bundle at [1003]
The Tribunal simply cannot ignore this gross level of disregard for opportunities presented to Mr Dinkha to address his problems. The excuses presented – failure to remember, broken mobile phone, toothache and all the rest – are patently unacceptable. Above all, the repeated assertions by Mr Dinkha in interviews with the relevant authorities that he no longer has a problem with drug use or that he “does not have an anger problem”[20] cannot be seen as anything other than a profound lack of insight into his underlying problems and/or a deliberate unwillingness to confront and deal with them.
[20] For example Tender Bundle at [617]
MR DINKHA’S MENTAL HEALTH ASSESSMENTS
There have been a number of formal assessments of Mr Dinkha’s mental health status.
In November 2011 he was interviewed by Dr Christopher Lennings[21] to whom he had been referred by his legal representatives. Dr Lennings found this to be “a most difficult assessment and I cut it short after a little more than one hour”. The doctor found that Mr Dinkha often replied that he understood what was being discussed with him when he manifestly did not; he denied using drugs but admitted to misuse of alcohol and that he had a tendency to “fake[s] his way through a lot of communication”. Dr Lennings reported that Mr Dinkha had generally said that until the death of his father his childhood was “good” but that since that date he had become “a traumatised young man, with no effective supports in Australia, and to date his experiences of Australian institutions have been largely coercive”.
[21] LSC Psychology; Ph.D.; M. Psychol.; M.A.Ps.S
Ominously, Dr Lennings concluded his report: “Given the nature of his offences, his apparent intransigence and failure to learn from his mistakes, and apparent lack of cooperation, a custodial sentence may likely be considered for him. However, such a sentence will merely confirm the already developing anti social connections and attitudes Denha (sic) has and delay the potential benefits that a CALD referral might produce”.[22]
[22] Tender Bundle at [133]-[137]
When offered assistance to deal with both drug and mental health problems during his period in custody at Cessnock, Mr Dinkha “stated at interview that he no longer requires programmes to address his offending behaviour” and that “he was ‘not addicted’ to any substance”.[23]
[23] Tender Bundle at [634]
On 2 May 2017 he was assessed by Dr Tim Watson-Munro[24] where he presented as a “co-operative though depressed and anxious man” in relation to whom it was “clear that he requires treatment whatever the outcome of his sentence hearing”. On this occasion Dr Watson-Munro concluded that Mr Dinkha “has now detoxified and has clearer insight to the dynamics of his offending behaviour. He recognises that he needs treatment”.[25] This assessment is at odds with other evidence of Mr Dinkha’s continuing drug use.
[24] Consultant Forensic Psychologist
[25] Third Tender Bundle at [1206]-[1212]
While in detention on Christmas Island Mr Dinkha was subject to further assessment by the Indian Ocean Territories Health Service (Torture and Trauma Service) which concluded that he “DOES NOT meet the criteria for Posttraumatic Stress Disorder … His main motivation to access the service is to use his traumatic memories as a way to go back to the mainland; client has no real interest to work on his traumatic past”.[26]
[26] Initial Mental Health Assessment dated 13 December 2017. Capitalisation in original.
When in immigration detention in May 2018 Mr Dinkha declined to complete a mental health assessment, although the mental health nurse at the time reported “nil risks evident”.[27]
[27] Further Tender Bundle at [694]
MR DINKHA’S UNDERLYING PROBLEMS
Mr Dinkha has a lengthy record of misusing illegal drugs as well as the excessive use of alcohol.[28] He started smoking marijuana when he was about 16 years of age and within a relatively short period of time was engaged in selling marijuana: the exact order of using/selling is unclear from any of the evidence or from Mr Dinkha’s own statements.
[28] Dr Lenning’s report in Tender Bundle at [135]
In September 2013, sentencing Judge Syme characterised him as “a middle level street runner”.
She continued:
He was not involved in any way in the hierarchy of the organisation; he was not involved in the purchase of larger quantities of drugs; he was not involved in the fixing of prices or arranging of warehousing. His level of involvement then, as an ongoing supplier of drugs, is towards the lower end of the scale.[29]
[29] Section 501 – G Documents at [33]
It was on this basis that Her Honour imposed a sentence of 2 years and 8 months, with a non-parole period of 1 year and 4 months, for an offence which carried a maximum 20 year sentence.
Her Honour made two other further remarks which are relevant to the Tribunal’s further consideration. She noted that his offences “are the sort of matters that frequently people involved in drug abuse are involved in” and that:
[He] is still a very young man, he is only twenty-two years of age; there is certainly plenty of time for him to reconsider his choice of lifestyle and to seek another course.
…
I have already observed he is twenty-two, he will have good prospects of rehabilitation provided the appropriate services are made available to him and provided he engages and accepts that supervision when it is made available to him.[30]
[30] Section 501 – G Documents at [35] & [37]
In time he graduated to the use of methamphetamines (particularly “ice”), although he denies even having sold “ice”. At one stage he reported using up to a gramme of “ice” per day,[31] for which he told the Tribunal he was paying $400-$500. With a habit which might be entailing expenditure of over $2000 per week Mr Dinkha was unable to explain the source of his income to cover such expenses when at the very most he had Centrelink income of no more than $500 per week.
[31] Section 501 – G Documents at [30] Sentencing remarks of Magistrate Bugden. Also report of Dr Tim Watson-Munro: Third Tender Bundle at [1211]
Mr Dinkha also has a gambling problem to the extent that he disclosed to the officer at Fairfield Community Corrections that he “struggles with not being able to go into a pub or a club without gambling any money he has on him”.[32]
[32] Tender Bundle at [352]
ASSESSING MR DINKHA’S CLAIMS
Having established the background relevant to Mr Dinkha’s application, the Tribunal is required to assess his various claims against the statutory framework set out in the Act.
Section 501CA(4) of the Act provides a mechanism whereby the Minister may revoke a mandatory cancellation of a visa which was made on the grounds that the holder has a “substantial criminal record”.[33]
[33] Migration Act 1958 s 501(3A)
The legislation requires that the Minister, in doing so, must be satisfied that the Applicant either (a) meets the character test set out in s 501 of the Act or (b) that there is another reason for so doing.
Similarly, it falls then to this Tribunal, in deciding whether or not to set aside the Original Decision and if it does, either recommending that Ministerial discretion be exercised in favour of the Applicant, or substituting another decision, to answer the same question.
It is clear and not in dispute that the Applicant does not pass the character test, and consequently the issue before the Tribunal is whether under s 501CA(4)(b)(ii) of the Act, “there is another reason why the original decision should be revoked”.
In Gaspar v Minister for Immigration and Border Protection, North ACJ elaborated on how to approach this discretion:
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.[34]
[34][2016] FCA 1166 at [38]
It has also been stated by this Tribunal that:
The existence or otherwise of “another reason” should be established on the balance of probabilities.[35]
[35] Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079 at [21]
THE LEGISLATIVE SCHEME – A BRIEF OUTLINE
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:
(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
... 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.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
It can thus be seen clearly in relation to Mr Dinkha that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[36] This is the reviewable decision.
[36] Section 501 – G Documents at pp 9 to 20
In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
However as the Tribunal has noted previously: “Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[37]
[37] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21]
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its independent decision on a request for revocation of a visa cancellation.
This Tribunal draws heavily upon the recent decision by Senior Member PW Taylor SC in Aciek[38] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity.
7.Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
8.The “another reason” criterion for the exercise of the revocation discretion requires an evaluative assessment of all the relevant matters. The purpose of the required evaluation is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]- [83]; [2014] FCAFC 141; 227 FCR 562. The decision must be legally “reasonable” – in the sense of having a rational foundation and a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]- [20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. It necessarily follows that the required consideration must address the matters that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]- [32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The process of addressing those matters must involve “an active intellectual engagement” and genuine, proper realistic consideration of the relevant information:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 at [24]- [26].
[38] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Before turning to the specifics of Ministerial Direction 65 and their application to Mr Dinkha, the Tribunal believes that it should consider a precedent question.
MR DINKHA’S FEAR OF HARM IF RETURNED TO IRAQ: CONSIDERATION OF BCR16
In his initial application to have his visa cancellation revoked, Mr Dinkha stated:
I dont (sic) want to go back to Iraq because I have no family there all my family is here in Australia and my dad was killed in Iraq and my sister was kidnaped (sic) because we are Chirstan (sic) and I done my time for my crim (sic) so if you send me back to Iraq I will get killed and I think thats (sic) extra punishment and its (sic) not fair for me because all my family is here in Australia[39]
[39] Section 501 – G Documents at [73]
In his letter dated 20 July 2018, submitted to the Tribunal, Mr Dinkha writes:
We were persecuted because of our religion and it is because we were Christians that my father was murdered… I will most likely be killed in this country [Iraq] because of my religion. This is why my family fled Iraq in this (sic) first place… my life in Iraq was full of violence and persecution
In oral evidence Mr Dinkha repeated these fears although conceding that he might not be killed but that, at the very least, he would suffer persecution and discrimination on the basis of his Christianity.
The Tribunal well understands these concerns.
A recent definitive study of the history of ISIS notes:
Christians do not fare much better. After capturing Mosul and other cities in Iraq and Syria, ISIS presented Christians in both countries with a stark choice: convert to Islam, pay a special tax (jizya), or get out immediately and be disinherited from everything you own. Recent evidence shows that despite paying the special tax, Christian girls and women have been victims of ISIS’s practice of systemic rape. In light of this ultimatum, the ISIS surge has triggered another wave of exodus by Christians, an exodus that began in earnest when its forerunner Al Qaeda in Mesopotamia, also commonly known as Al Qaeda in Iraq, forced 1 million of Iraq’s surviving 1.5 million Christians to flee the country between 2003 and 2010.[40]
[40] Gerges F A, ISIS: A History (Princeton University Press, USA, 2016)
The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear
That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.[41]
[41] [2017] FCAFC 96 at [48]
Mr Dinkha has raised this issue before the Tribunal and it cannot be ignored. It is also not in dispute that, in the event that Mr Dinkha’s visa cancellation is not revoked, he will be entitled to make a separate claim for a protection visa or a bridging visa.[42]
[42] Migration Act 1958 s 501F(3). Respondent’s Statement of Facts, Issues and Contentions at [19]
The fact that Mr Dinkha has raised this issue does not, however, mean that this Tribunal must make a specific determination in regard to it.[43] Indeed, in the event that the visa cancellation is not revoked, while a claim to a protection visa remains on foot for Mr Dinkha,[44] it is recognised that this Tribunal could not “engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim”.[45]
[43] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] and [34] per Flick J
[44] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28]
[45] PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961 at [87] per Deputy President Kendall
The Tribunal is also mindful of the fact that the Courts have made it clear that claims for a protection visa cannot be rejected on application of the character test alone, and that “consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality”[46] must be considered.
[46] Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11] per Jagot J
This has now been clarified further by Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017. Part 2 of that Direction makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers dealing with protection visas before other matters are considered.
Whether this is a genuinely meaningful option for Mr Dinkha must remain a matter of some speculation given the comment by Senior Member Taylor in Aciek to the effect that:
The undesirability of embarking on any assessment of Mr Aciek’s potential non-refoulement claims is not removed by apprehension that any application he might make for a Protection visa would be an exercise in futility, given his “substantial criminal record”[47]
[47] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755 at [105]
Although this Tribunal is inclined to believe that Mr Dinkha would be at some risk if returned to Iraq because of his ethnicity, his religious beliefs and his family history, it is not in a position to make any such definitive finding in the absence of more solid probative or evidentiary material to which it does not have access. The best that can be said is that:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.[48]
[48] Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567 at [578] per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ
EVIDENCE ON MR DINKHA’S BEHALF
Apart from the written material to which the Tribunal has referred which consists primarily of statements and letters from Mr Dinkha himself, his mother (Mrs Zia) was asked to give evidence on his behalf. She did so with the assistance of an Assyrian language interpreter.
Her evidence, supported by her letter of 19 July 2018, was, as one might expect from a loving mother, deeply concerned about the possible return of one of her children to Iraq. She indicated that she was prepared to have him continue to reside with her should he be released from detention and that she was confident that he would neither reoffend nor return to using drugs because he had “given her his promise” that he would not do so.
However Mrs Zia’s understandable evidence must be assessed against other material before the Tribunal in which she, and other members of her family, had made it clear that, at various times, they were fearful of Mr Dinkha residing with them and that they had informed the authorities that they did not wish this to continue to be the case (see below).
THE DIRECTION CRITERIA
Having addressed that question, the Tribunal returns to the provisions of Ministerial Direction 65. It establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[49]
[49] Part 13.
The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending.
The Tribunal has given careful consideration to all of Mr Dinkha’s previous offences and to his repeated assurances to his family and to others that he had both stopped using drugs and that he would not reoffend. The Tribunal finds none of these assurances to be plausible. Repeated assurances of not returning to drug use have been dishonoured. Failure to attend and complete rehabilitation programmes speak of an attitude which is not consistent with any belief in or commitment to a desire to change on Mr Dinkha’s behalf.
Although the nature of Mr Dinkha’s offences may not place them at the higher end of any scale of criminality, it is inevitable that the Tribunal must conclude that his likelihood of reoffending is of a medium to high level. Although minor offences of possessing and occasionally selling drugs may bespeak of a limited number of victims upon whom impacts may be low, Mr Dinkha also has a record of thefts and in particular of the deliberate theft and misuse of other people’s credit cards. These offences have the potential to impact severely on people, both in terms of economic loss but also in terms of identity loss, compromise and fraud.
This primary consideration weighs significantly against Mr Dinkha.
There are no minor children whose interests need to be considered in this application.
In terms of the expectations of the Australian community, this Tribunal has referred in a number of cases, including BFXK and Minister for Immigration and Border Protection, to the conclusion that “this criteria ipso facto counts against the Applicant regardless of the circumstances of the case”.[50] That seems to flow inevitably from judicial authority in both YNYQ v Minister for Immigration and Border Protection[51] and in Uelese v Minister for Immigration and Border Protection.[52] Of course this does not in itself establish exactly what weight should be given to such findings of expectations, nor does it preclude taking a generous view about the possibility of an applicant’s capacity for rehabilitation and reform,[53] nor the extent to which they may be seen as deserving of a second chance.[54] Each case must be assessed on its individual facts and merits[55] and in terms of the applicant’s “contemporary behaviour and reputation”.[56]
[50] [2018] AATA 886 at [126]
[51] [2017] FCA 1466 at [76]-[77] per Mortimer J
[52] [2016] FCA 348 at [64]-[65] per Robertson J
[53] Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [51] per Lee J
[54] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23] per Deputy President McCabe
[55] Mahu and Minister for Immigration and Border Protection [2018] AATA 161 at [75] per Deputy President Boyle
[56] Darwich and Minister for Immigration and Citizenship [2007] AATA 2106 at [40] per Senior Member Taylor.
However, for all the reasons stated above, the Tribunal cannot find any justification for setting aside what it understands would be the reasonable expectations of the Australian community, neither vengeful nor ill-informed, nor prejudiced against giving people second chances, that a person with Mr Dinkha’s criminal record and pattern of contemporary behaviour, should have his visa cancelled.
This consideration weighs strongly against Mr Dinkha.
Ministerial Direction 65 goes on to list a series of “other” considerations which must be taken into account by the Tribunal. These are:
(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.
There is judicial guidance in dealing with these “other” considerations.
In Suleiman v Minister for Immigration and Border Protection, Colvin J stated:
[23] … Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations‘ … It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally‘ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations‘. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
…
[28] To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated‘ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.[57]
[57] [2018] FCA 594
Regarding Australia’s international non-refoulement obligations, in its previous discussion of Mr Dinkha’s claims that he faced the prospect of serious harm if returned to Iraq, the Tribunal believes it has discharged its obligations to consider this matter. Taken alone, and bearing in minds the strictures of BCR16, the Tribunal concludes that this consideration weighs in Mr Dinkha’s favour.
In terms of the strength, nature and duration of ties to Australia, the Respondent itself concedes that this consideration weighs in favour of Mr Dinkha.[58] He has lived in Australia for over 11 years and all the immediate and extended members of his family are here. He has no ties to Iraq other than those of birth.
[58] Respondent’s Statement of Facts, Issues and Contentions at [29]
On the other hand, the Tribunal has before it a number of instances where Mr Dinkha’s family have expressed concerns about his continuing to live with them because they are fearful of his anger and violence.[59] On 2 November 2016 Mr Dinkha assaulted his own younger brother (Michel) in a fashion which resulted in the police being called and an Apprehended Violence Order being put in place.[60] There is some suggestion (but no detailed corroborative evidence) in a NSW Police Fact Sheet that there may have been a similar incident of aggression against his younger brother on 13 December 2016.[61] It is not without significance that Mr Dinkha told the Tribunal that it was his younger brother who reported him to the police over his drug use in the first instance when pleas from the family for him to desist proved futile.
[59] Tender Bundle at [363]
[60] Tender Bundle at [297] and [302]. There is a discrepancy between various documents as to the date of the incident (1st or 2nd November) but the other facts are identical.
[61] Third Tender Bundle at [1364]
On 21 April 2017 a report from Fairfield Community Corrections records that Mrs Zia and her son Michael
stated they are not willing to sign the forms [co-resident forms agreeing to allow a person to reside in a home] as they do not want him to reside there due to his on going drug use.
…
They stated that his ice use has divided the family, their younger sister Mariam move (sic) in with her aunty as she feared him whilst the offender was residing there and also Martin had moved out ad that once the offender was placed into custody Martin moved back in.
Micheal (sic) stated that he had an AVO placed on him due to his violent behaviour whilst he was using ice.
They stated that they are both sorry, however they are not willing to have him reside back at home whilst his drug issues are not resolved and that he can prove and stay off the ice.[62]
[62] Tender Bundle at [363]
Some weeks later (1 May 2017) the family had a change of heart and Michael advised Fairfield Community Corrections that “him and his mother and brother are willing to sign the co-resident forms and him to reside there as long as the offender refers and books himself into a residential rehabilitation program to address his drug use”.[63]
[63] Tender Bundle at [365]
The Tribunal has already commented on Mr Dinkha’s attitude towards rehabilitation programmes and opportunities and makes no further comment.
Although it accepts that Mrs Zia is anxious to have her son Maykin close to her, the evidence suggests that her two other sons (Martin and Michael) live with her and support her while he daughter is recently married but living not far from her. On the other hand the Tribunal notes that when Mr Dinkha was discussing his gambling habits he reported that the money he had gambled was “including the money he meant to give to his mother”,[64] presumably from his Centrelink payments as he has no other legitimate source of income.
[64] Tender Bundle at [352]
Nevertheless, the Tribunal accepts the Respondent’s concession that this consideration weighs in Mr Dinkha’s favour, although not to an excessive extent.
Neither the impact on Australian business interests nor the impact on victims are matters for consideration in this instance.
There will be significant impediments for Mr Dinkha should he eventually be returned to Iraq, a matter to be determined in another place, by other decision-makers and at another time. The Tribunal has already averted to these and the Respondent concedes that this issue weighs in favour of revocation. The Minister claims that the obvious impediments would not be “insurmountable” and that Mr Dinkha would be able to remain in touch with his family despite his physical separation.[65]
[65] Respondent’s Statement of Facts, Issues and Contentions at [32]
However, the Tribunal also notes that given Mr Dinkha’s fluency in three languages: Assyrian, Arabic and English (although his level of written literacy is a different matter), he may well find that in Iraq (should he eventually be returned to that country) he is able to do something which he has not been able to do in Australia, namely gain useful employment.
CONSIDERATIONS
In making the “calculus” of considerations, to take a term from the Full Bench of the Federal Court,[66] different weight must necessarily be given to each of the statutory considerations set out in the Act. Each must be assessed within its own context as well as within an overall assessment of the case before the Tribunal.
[66] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52]
As explained, the considerations related to the protection of the Australian community and its expectations weigh against Mr Dinkha. Issues of Mr Dinkha’s fears of harm if returned to Iraq, his close association with Australia and the impediments he will face on return weigh, to a greater or lesser extent, in his favour. The remaining considerations are neither here nor there in this calculus.
The actual seriousness of Mr Dinkha’s offences are not so gross that it is inevitable that they are regarded as so outweighing the potential non-refoulement obligations that the latter can be set aside easily.[67]
[67] NKWF and Minister for Immigration and Border Protection (Migration) [2017] AATA 813 at [100]
It is not difficult to feel sympathy for Mr Dinkha. He has lost his father, suffered persecution, fled his home, been denied an appropriate level of formal education and had difficulties in adjusting to life in a new country. However he is not unique in this respect: many refugees from war-ravaged places such as Iraq and Syria have suffered no less.
On the other hand, the situation in which he now finds himself is one of his own making. It arises primarily from a lack of personal insight into his problems of drug use and anger management compounded by his own refusal or failure to take advantage of the numerous opportunities which were offered to him to help get his life back on track.
When Justice Syme addressed his sentencing hearing in 2013 she took pains to indicate that her relatively light sentence came with a series of statements about the opportunities Mr Dinkha could access provided he was motivated to do so.
The Tribunal has noted that these were, indeed, numerous. A variety of Probation and Parole officers attempted to help Mr Dinkha get back on track – in some respects they went out of their way to try and help him. He was given opportunities to access both the EQUIP and MERIT programmes which are designed specifically to assist young offenders break the cycle of reoffending and recidivism.
That he failed to participate fully or to complete any of these programmes is no-one’s fault but his own. He now faces the inevitable consequences of his own decision-making.
Moreover, these programmes were offered to Mr Dinkha at a time when he was either under some form of bond or community supervision order or actually in some form of custodial care. As of today, Mr Dinkha is no longer under sentence. His non-parole period expired on 23 September 2013 and his sentence in its entirety came to an end on 23 January 2015.[68] Mr Dinkha cannot be compelled to enter any programmes – he must do so voluntarily and his track record is such that the Tribunal cannot but conclude that the possibility that he will do so, or that he would maintain participation and achieve positive outcomes in such programmes, is minimal if not non-existent.
[68] Section 501 – G Documents at [38]
Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned. Persistent disregard of warnings[69] about the need for compliance with mandated programmes and wilful failure to take rehabilitative opportunities offered must be regarded as fatal to applications such as this. Persistent refusals to accept life-lines when offered cannot be ignored.
[69] See this Tribunal’s comments in Ferreira and Minister for Home Affairs [2018] AATA 2599 at [89]-[91]
DECISION
The decision under review is affirmed.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............[sgd].........................................................
Associate
Dated: 24 August 2018
Date(s) of hearing: 13-14 August 2018 Applicant: In person Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
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