DLXF and Minister for Home Affairs (Migration)

[2019] AATA 4949

DLXF and Minister for Home Affairs (Migration) [2019] AATA 4949 (25 November 2019)

Division:GENERAL DIVISION

File Number(s):      2019/5598

Re:DLXF

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:25 November 2019

Place:Sydney

The Tribunal decides that the decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked.

..........................[sgd]............................

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – cancellation of visa on character grounds under s 501(3A) – crimes of serious dishonesty – exercise of discretion to cancel revocation of visa – considerations under Direction No. 79 – protection and  expectations of the Australian community – where applicant reoffended after warning of cancellation of visa – where applicant and family is threatened – best interests of minor children in Australia – where teenage child has psychological disorders – where applicant fears risk of death if sent back to Malaysia – consideration of the existence of harm – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

FYBR and Minister for Immigration and Border Protection [2019] FCAFC 185
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123

Minister for Home Affairs v Omar [2019] FCAFC 188

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

25 November 2019

1. The applicant was 30 years of age when he arrived in Australia from Malaysia in mid-2004.

2. He married an Australian citizen while in Australia and they have a son, now aged 13 years.

3. He was found guilty of a number of offences and has twice been imprisoned since 2004. His offences involved serious dishonesty. While he was in prison most recently, his partner visa was subject to mandatory cancellation and upon his release he was taken into immigration detention.

4. He applied to the respondent for revocation of the cancellation of his visa and that application was refused by the Minister’s delegate. In these proceedings he seeks review of the refusal to revoke the cancellation of his visa. He asks that his visa be reinstated. The principal issues arising in the case are: the nature and seriousness of the conduct and the protection of the Australian community, the best interests of minor children in Australia, claims which he makes of harm which he may suffer if returned to Malaysia, non-refoulement obligations owed in respect of him, and the extent of impediments he may face if removed to Malaysia.

5. For the purposes of these proceedings he has been given a pseudonym and these reasons for decision have sought to avoid setting out details which would enable him to be identified. For that reason certain details of his offending have been omitted, so far as possible.

6. The circumstances leading to the mandatory cancellation of the applicant’s partner visa are not in doubt. They are specified in s 501(3A) of the Migration Act 1958 (‘the Act’). The applicant has a substantial criminal record and at the relevant time was serving a sentence of imprisonment on a full-time basis. Pursuant to s 501CA(3) of the Act, the Minister gave notice to the applicant and invited the applicant to make representations about the revocation. The applicant did make representations and the delegate declined to revoke the cancellation of the visa. These proceedings are a review of that decision.

7. It suffices to say that it is common ground that the applicant does not pass the character test and the question on this review is whether there is another reason why the cancellation should be revoked.

   DISCRETION TO REVOKE MANDATORY CANCELLATION OF VISA

8. Direction No. 79 (‘the Direction’) was made by the Minister under s 499 of the Act. One of its purposes, as set out in Part C of the Direction, is to guide decision-makers in the exercise of discretion under s 501CA(4) of the Act.

9. Clause 6.3 of the Direction sets out Principles which are to inform the exercise of discretion. The crimes of the applicant were serious and did not involve violence and were not of a sexual nature. The Direction makes a number of considerations mandatory, and nominates primary considerations, which should generally prevail over other considerations.

   Primary Considerations

10. There are three primary considerations: the protection of the Australian community (including the nature and seriousness of the conduct), the best interests of minor children in Australia, and the expectations of the Australian community.

11. The first and third of those considerations favour non-revocation of the cancellation and the second tends in the opposite direction.

    Protection of the Australian Community and Expectations of the Australian Community

12. The first consideration is strongly unfavourable to the applicant. His first offence involved a forged cheque, impersonation by the applicant of a corporate director and the use, for that purpose, of a false identification document. Several years later he manufactured forged credit cards over an extended period, and provided them for use by others as part of a criminal enterprise. Later again, after his release from gaol he engaged in money laundering activities involving large sums of money, again, over an extended period. The seriousness of the second and third periods of offending are reflected in the sentences imposed upon him in the District Court.

13. Between the first and second offence, he was engaged as an employee in a retail shop which attracted police attention. He was told by police that his activities were illegal, but he continued his employment. On one occasion, he was fined for the retailing activity.

14. While he had been at liberty since his arrival in Australia, he has spent most of his time in employment engaged in criminal activity of one kind or another. He was not a ringleader but a low level employee of the criminal enterprises.

15. He expressed contrition and a determination not to reoffend but the record indicates that he has made similar expressions earlier when brought before the District Court.

16. His explanation for his involvement in the three more serious offences is that he or he and his wife and child were threatened by the leaders of the criminal activity. He said that the forging of the cheque was activity directed by a person to whom he owed money that he used for gambling shortly after his arrival in Australia. The lender said that unless he did as he was directed, “gangsters” would injure him. He said that on two other occasions, threats of injury were directed to him, his wife and child.

17. His wife gave evidence that the applicant told her of the threats and she said that she saw persons following her in a car with dark windows. I accept her evidence.

18. The leaders of the enterprises, in which the applicant participated leading to his imprisonment, were associated with other criminals in this country and overseas. The applicant said that each of them said that they knew the others in the enterprise and that they knew where the applicant and his family lived.

19. The applicant sought no help from the police and did not explain his failure to do so.

20. The respondent challenged the applicant on credibility grounds about the evidence of threats, suggesting that the circumstances were too unlikely to be acceptable. With some hesitation, I have decided to accept the applicant’s evidence, especially because of the evidence given by his wife. The greater concern which I have about his credibility does not stem from demeanour or any apparent lack of frankness in the answers he gave, but rather the lack of a moral compass, evidenced by his lengthy involvement in criminal acts.

21. Even though I accept the threat evidence, I consider that the first primary consideration provides strong support for the affirmation of the reviewable decision. He said that if he was released into the community and was ever asked again to commit offences by criminal elements, he would report the matter to the police, whom he trusted. A person who commits crimes over an extended period under the influence of threats to his family, and who trusts the police is nevertheless a person who may cause injury to the community in the future, simply because that is what has happened at least three times in the past.

22. The applicant said that his determination not to offend again is “in the interest of my minor son”. He said that he sees his minor son regularly at the detention centre. Having now spent two periods in gaol and a period in detention, he appreciates, perhaps more fully than previously, that if he were released from detention, further offending is likely to result in immediate cancellation of his visa and consequent deportation or prolonged detention. In either case he will find himself with little contact with his son.

23. One difficulty about placing reliance on that evidence, is that after his first imprisonment he was warned by the Department, in writing, that further offending may result in cancellation of his visa. That must have brought home to the applicant that he would lose contact with his son, perhaps permanently, in that event, if he offended again. He was aware at that time that his son had autism and may need access to him. Yet he offended again, albeit, as he said, following threats being made against his family. If he did not then go to the police, he obviously may not do so in the future if he is approached again.

24. In the applicant’s favour it should be said that all his offending was as a low-level participant. He was not a leader of any of the criminal behaviour. The consequence is that he has no history of self-directed offending. He has no present contact with previous bad influences, and absent such contact, it may be that he will not reoffend. He had been located on at least two previous occasions by dangerous criminal elements.

25. For the same reasons, in my opinion, he is a person who does not satisfy the community expectations consideration. That is so whether one adopts the meaning attributed to the consideration by Charlesworth J or by Stewart J in FYBR and Minister for Immigration and Border Protection [2019] FCAFC 185. Charlesworth and Stewart JJ both considered that the Minister’s appreciation of the community’s expectations was expressed in the Direction, so that consideration by the decision-maker of the community’s expectations was inappropriate. The criminal conduct of the applicant has been described in a general way in relation to the first primary consideration, and it is substantial. The nature of the offences is such that, in terms of the Direction, the community would not expect that the applicant would hold a visa.

    Best Interests of Minor Children in Australia

26. The second primary consideration is the best interests of minor children in Australia. I must determine whether the revocation is in the best interests of each relevant child.

27. The applicant has a 13 year old son, ‘E’. E is on the autistic spectrum. He also has Attention Deficit Hyperactivity Disorder (ADHD). His behaviour is very disturbed. He was recently suspended from school because of violent behaviour involving one of his teachers and another student. In a recent year, he was suspended on three occasions. The applicant said that he loves his son, and I accept that evidence. The father, the mother and E himself, all believe that E’s behaviour will improve under his father’s influence.

28. The applicant said, and I accept, that he does not want to be separated from his beloved family, and in particular, E, his only son. He said his son always wants him to be by his side. He sees his father regularly at the detention centre, and saw him less regularly while his father was more distant in correction. He misses his father very much. E said that he treasures the times of being together with his father at the detention centre. The applicant enjoys the support of his wife, who said that she and her son both rely on the applicant for emotional and financial support. She said that removal of the applicant from Australia would be disastrous for E. She said that if the applicant were removed, E would be lost, heartbroken and mentally unstable.

29. E has not only ADHD and autism spectrum disorder but also what his psychologist described as “oppositional defiant disorder”. He is a participant in the National Disability Insurance Scheme (NDIS). He also has an obesity problem. His school reported deterioration in his behaviour in recent times. He has been non-compliant with instructions and wanders around the class. He has also been hitting and pushing other children and using inappropriate language. A psychologist’s report dated in January 2018 states that if the applicant were removed to Malaysia without his child, the impact upon E would be “immediate and substantial … [and] if he were unable to have his father’s support, an immediate regression to previous symptom severity would be likely.”

30. I was told that if the applicant is returned to Malaysia, his wife and child would not accompany him. A return to Malaysia would sever the links between the applicant, his wife and E. Their communication is likely to be by means of telephone and other technology. For E, that would probably be a poor substitute.

31. It is clear to me that it will be in the best interests of E for the applicant to be released into the community. E is a troubled adolescent teenager in need of his father’s love and guidance. Professional opinion strongly favours such an approach.

32. The applicant’s wife also has a number of children and grandchildren. I heard from one of the applicant’s step-daughters who brought with her into the witness box an infant of some eighteen months. The step-daughter said that she relies on the applicant as her surrogate father, since her actual father is now deceased, she is estranged from her own husband and is a victim of domestic violence. She said that her youngest child adores the applicant and calls him “puppy”. If he leaves, she said, her child would be very sad and lost. The contact between the applicant and his step-grandchild has taken place on visits to the applicant in detention.

33. The grandson of the applicant’s wife is the other Australian infant with whom the applicant is shown by the evidence to have an existing relationship. The broken home of the step-daughter and her youngest son and the desire of the step-daughter for continuing contact with the applicant, taken with the evidence as to the relationship with the applicant, produce the consequence that it is also in the best interests of the step‑grandchild of the applicant that he should remain in this country. At this time the step‑grandchild is very young, of course.

    Other Considerations

34. I turn to the other considerations, including those mentioned in representations made by or on behalf of the applicant.

35. The first of the express “other considerations” is international non-refoulement obligations. Clause 14.1 of the Direction is in the following terms:

    14.1 International non-refoulement obligations

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    (2)The existence of a non-refoulement obligation does not preclude non­ revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

    (3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

    (4)Where a non-citizen makes claims which may give rise to international non­ refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

    (5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).

    (6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

36. This matter should be considered together with another relevant “other” consideration not mentioned in the Direction. The applicant asserts that he will face the risk of death if he is returned to Malaysia.

37. In Goundar v Minister for Immigration and Border Protection [2016] FCA 1203; 160 ALD 123 (‘Goundar’), the representation which Robertson J found not to have been considered by the Minister was “a risk of retribution against the Applicant from the victim and his ex-wife’s family if he is returned to Fiji.” The claim in Minister for Home Affairs v Omar [2019] FCAFC 188 (‘Omar’) of harm feared from a return to Somalia was similar. In this case, the risk of harm in Malaysia also requires this Tribunal to give consideration to it independent of any matter that will be considered if a protection visa is applied for in the future.

38. The question of risk of harm if the applicant were returned to Malaysia arises squarely on this review, and consistently with the decision in Goundar, I must consider it in this review. The failure by an Assistant Minister to make findings on and to properly consider a claimed risk of personal harm was the basis on which an appeal was recently dismissed by a Full Court of five in Omar. In that decision, the Assistant Minister’s decision was quashed.

39. The matters relied upon are the following:

    (a)the fact that the criminal elements with whom the applicant was in touch with in Australia are dangerous criminals, who were also prepared to make threats to the applicant, his wife and son, and prepared to reinforce those threats by following the applicant’s wife;

    (b)it came back to the applicant during his most recent imprisonment that a more senior member of the syndicate (who is imprisoned) blamed the applicant for the fact they got caught and for the fact that a lot of money was confiscated and the bank account was frozen;

    (c)the fact that the leader of the most recent criminal offending comes from Malaysia and told the applicant before his most recent offending that they knew where he lived in Sydney and also where he and his parents lived in Malaysia.

1. None of those facts involves the making of any threat to take action against the applicant in Malaysia, but if the group or gang blames the applicant for the failure of the money laundering and confiscation of funds, it is on the cards that they might take action against him. If they proposed to do so, they would not warn him. The criminality of the syndicate members is not in doubt.

2. On a question such as this, the stakes are very high for the applicant. If he is right in his apprehension that he may be killed in Malaysia, then a mistaken finding about whether his fear is justified may have very large consequences.

3. The Minister submitted that a desire to take revenge against the applicant is not a rational response to the facts as now revealed in the applicant’s evidence. Newspaper reports indicate that the applicant was under investigation for a month before his arrest. What exactly led to the investigation is not known. The evidence does not reveal why blame was attributed to the applicant. Only the fact of the co-accused repeatedly telling others in the prison that the applicant is to blame is the subject of evidence. The evidence before me reveals nothing about the facts as perceived by the co-accused. The person who expressed in the gaol that the applicant is to blame for what happened was not shown to have had a motive to mislead other prisoners about his thought processes, or what he thought was the role the applicant played in his arrest and the loss of money. He may have desired to exculpate himself, but if so, it is mysterious why he told others in the gaol what he said he believed. One may take it that he did believe what he said to other prisoners. The expressed view of a person who was senior to the applicant in the organisation may lead to a similar view being taken by the leadership, especially if the grounds which he may state for that belief are persuasive.

4. The question of the existence of harm involves a risk assessment. I cannot conclude that the risk is non-existent. Nor can I find that it is clearly established. I think that the circumstances recited in the previous paragraphs justify an inference that there is a real risk that the applicant’s life will be in danger in Malaysia. The percentage chance that the risk may come home is not able to be estimated, but that is no different from the understanding in this country of a refugee’s “well-founded fear of persecution”. As Toohey J remarked in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407, the “real chance” test adopted in that case “gives effect to the language of the Convention and its humanitarian intendment. It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.” I do not accept that the fears of the applicant are baseless, or that the grounds for his fear are remote or insubstantial.

5. The risk that the applicant may lose his life if returned to Malaysia is a consideration which is relevant to the outcome of this review. If there were stronger support for his fears they would have had more weight.

6. The questions whether non-refoulement obligations are owed in respect of the applicant have not been fully explored in argument and if I thought it was necessary to resolve that question on this review I may have remitted the matter for consideration of that matter. This matter was listed before me very recently, and non-refoulement questions are not to be decided without detailed argument.

7. Two expressly mentioned “other considerations” also require consideration under the Direction. That is, the strength, nature and duration of ties dealt with in clause 14.2 and the extent of impediments if removed, dealt with in clause 14.5.

8. The applicant has strong ties to his immediate family and his extended family, all of whom are Australian citizens. He cannot be said to have made a positive contribution to the Australian community in the time he has spent here.

9. As to impediments if removed, apart from the harm question already discussed, I was told by the applicant that medicines which he takes are not generally subsidised in Malaysia. Circumstances such as that are not of significant importance because the applicant is capable of earning an income.

10. It is necessary to weigh and balance the various considerations.

    CONCLUSION

11. The protection of the community consideration strongly favours affirmation of the reviewable decision. That is so, even though the applicant’s offending was as a follower rather than a leader, and even though I accept that threats were made to him personally and to his family. The kind of harm which the applicant’s previous conduct has caused to the community is financial. He is not a violent person. Indeed, the evidence before me is to the effect that his behaviour as a father and husband has been very good. The best interests of E, in particular, are an important primary consideration tending in the direction. The separation he has had from his father is the fault of the father, and has no doubt contributed to the son’s present condition. Of course, punishment of the applicant is not the objective of the discretion or the Direction. The making of the best interests of the child a primary consideration no doubt owes much to Australia’s treaty obligations as to children.

12. The risk of harm, albeit unquantified, is a powerful humanitarian reason to set aside the reviewable decision. Recognition of the risk of being attacked, even killed, overseas makes a decision to send him to Malaysia very undesirable.

13. In my opinion, the two considerations in favour of revoking the cancellation of his partner visa outweigh the risk that he may reoffend in all of the circumstances of the case.

14. Therefore, the decision of the Minister is set aside and in substitution, the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC.

.............................[sgd]......................................

Associate

Dated: 25 November 2019

Date(s) of hearing:	14 & 15 November 2019
Advocate for the Applicant:	Sherman Lau Migration Services
Solicitors for the Respondent:	Australian Government Solicitor