DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1993
•29 June 2021
DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993 (29 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2248
Re:DMDD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 June 2021
Place:Perth
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
......................[Sgd].................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of safe haven enterprise (class XE) visa – character test – substantial criminal record – driving offences – drug offences – other general offending, including weapons possession, assault public officer and possessing stolen property – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – effect of amendments to ss 197C and 198 of the Migration Act – extent of impediments if removed – weight to be given to extent of impediments if removed where protection obligations and operation of s 197C prevent removal – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 39-year-old man who arrived in Australia in 2012 by boat – Applicant is a citizen of Iran – extent of impediments if removed to Iran – Applicant is a person to whom Australia owes protection obligations – whether risk of harm due to bisexuality – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 5H(1), 197C, 197D(2), 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth) – reg 2.55(8)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013)
Amnesty International, The Impact of Indefinite Detention: the case to change Australia’s mandatory detention regime (Report, June 2005)
Commonwealth Ombudsman, Suicide and Self-Harm in the Immigration Detention Network (Report, May 2013).
Joint Select Committee on Australia’s Immigration Detention Network (Final Report, March 2012).
Kevin Douglas, Stephen Hart, Christopher Webster and Henrick Belfrage, HCR-20V3: Assessing risk of violence – User guide (Mental Health, Law, and Policy Institute, Simon Fraser University, 2007).
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) – paras 4(1), 4(2), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(a)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1(4), 9.1(5), 9.1(6), 9.1(7), 9.1(8), 9.2 9.2(1), 9.3(1), 9.4, 9.4.1(1), 9.4.1(2), 9.4.2(3)
Revised Explanatory Memorandum, Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 June 2021
BACKGROUND
The Applicant is a 39-year-old man who is a citizen of Iran. He arrived in Australia at Christmas Island by boat on 13 October 2012 (G17/97; G16/81) and was transferred to immigration detention in Perth.
On 17 January 2013, the Applicant was granted a Humanitarian Stay (Temporary) visa (Subclass 449) and a Bridging visa E (BVE) (Subclass 050) (G17/98) and was released from detention into the community (G18/99).
Between 28 December 2014 and 12 February 2015, the Applicant committed seven driving/ traffic related offences including one count of “careless driving”. He also committed the offences of “possessed drug paraphernalia in or on which there was a prohibited drug or plant”, “carried a controlled weapon” and “possessed a prohibited weapon” (R2/100–101). He received fines for each of those offences as well as a three-month licence disqualification for the “careless driving” offence.
The Applicant remained in the community until 6 May 2015 when he was returned to immigration detention (G18/99).
On 27 May 2016, the Applicant lodged an application for a Safe Haven Enterprise (Class XE) (Subclass 790) Visa (Visa) (G16/81), claiming that he faced persecution in Iran because he is bisexual, because of his ethnicity (as a member of the ethnic Bakhtiari group), and because of actual or imputed political opinions (G16/81). Further, he claimed that he faces persecution on return to Iran on the basis of his religion and his membership of a particular social group, namely “involuntarily returned failed asylum seekers” (G16/81–82).
On 12 October 2016, a delegate of the Minister for Immigration and Border Protection (as the Respondent was then known) refused to grant the Visa to Applicant because the delegate did not accept that the Applicant was bisexual (G16/81).
However, on 18 January 2017, the Immigration Assessment Authority (IAA) accepted that the Applicant is bisexual, “despite considerable doubts about the applicant’s overall credibility” (G16/89). The IAA remitted the decision for reconsideration with the direction that the Applicant is a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (Migration Act).
On 3 April 2017, the Applicant was subsequently given a notice that the Minister intended to refuse his application for the Visa under s 501(1) of the Migration Act on character grounds. In a notice dated 26 June 2017, the Applicant was informed that the delegate had decided not to exercise their discretion to refuse his Visa application under s 501(1) of the Migration Act. The notice did, however, contain the following warning in bold type (G9/52):
… you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future Visa applications may be considered and if so, the fact of this warning may weigh heavily against you.
The Applicant signed an acknowledgement of receipt of this notice on 27 June 2017, with the signed acknowledgement containing the following similar warning (G9/54):
I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be taken into account.
The Applicant was granted the Visa on 13 July 2017 and was again released into the Australian community (G17/98–99).
Between 10 November 2017 and 18 March 2018, the Applicant committed six further driving offences. These included “reckless driving” (on 10 November 2017) and “driving with prescribed illicit drug” (on 19 November 2017) (R2/100). On 19 April 2018, the Applicant committed seven further offences including “possession of stolen or unlawfully obtained property” and “assault public officer” with the remaining offences being drug and weapon related offences (R2/98–99).
On 28 May 2018, the Applicant committed six more offences. On 12 February 2020, the District Court of Western Australia sentenced the Applicant in relation to two of the offences committed on 28 May 2018, with three years’ imprisonment for the offence of “[attempt to] possess prohibited drugs with intent to sell or supply” and one year’s imprisonment for the offence of “possession of stolen or unlawfully obtained property”. The terms of imprisonment were to be served concurrently (R2/99). On 21 May 2020, the Perth Magistrates Court imposed fines for another four offences committed on 28 May 2018, being for drug possession (cannabis and heroin), possessing drug paraphernalia and possession of a controlled weapon (R2/98).
On 6 February 2019, the Applicant committed the offence of “attempt to obtain a prohibited drug” for which the Rockingham Magistrates Court imposed a fine on 20 March 2020 (R2/99).
On 12 March 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act (G31/228–233) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
In a request dated 15 March 2020 the Applicant sought revocation of the Cancellation Decision. He made representations and submitted evidence in support of his revocation request (G10–G15). This request was received by the Department of Home Affairs (the Department) on 30 March 2020 (G20/107).
The Department sent a letter to the Applicant on 8 July 2020 inviting him to comment, within 28 days, on further information that the Department had received and intended to consider when deciding whether to revoke the Cancellation Decision. This information included his national criminal history check and sentence summary report issued by the Government of Western Australia Department of Justice (G20/107–108). There was some correspondence with the Applicant’s legal representatives, who were appointed on 19 October 2020. This correspondence concerned an extension of time in which to make representations, and the Applicant being provided with a copy of his s 501 file so that he could properly respond and obtain legal advice (G21/109–123).
Similarly, on 25 November 2020, the Department sent a letter to the Applicant, via his legal representatives, inviting him to comment on further information the Department intended to consider when deciding whether to revoke the Cancellation Decision (G23/124–127). This information included the Applicant’s national criminal history check as at 20 October 2020, the notice dated 26 June 2017, a client incident report dated 11 November 2020, two seizure notices dated 25 September 2020 and 2 November 2020 stating that Australian Border Force had seized buprenorphine strips in items addressed to him in the mail, and the IAA decision and reasons dated 27 January 2017. After seeking an extension of time, on 20 January 2021, the Applicant’s legal representatives made representations in the form of submissions and evidence (G24–G30).
However on 1 April 2021, after considering the Applicant’s representations, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G4/17). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 6 April 2021 delivered via email to his legal representative (G3/9–11) which enclosed information required under s 501G(1) of the Migration Act including the decision record, statement of reasons and copies of each source document considered by the delegate (G5–G18). Therefore, the Applicant is taken to have received notification of the Reviewable Decision on 6 April 2021 (Migration Regulations 1994 (Cth) reg 2.55(8)).
On 14 April 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–8). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the
Migration Act.
The Applicant requested to deny his own parole (R3/FS10/65) and served his maximum prison sentence which ended on 27 May 2021 (G7/40). He was released into immigration detention from 28 May 2020 (G18/99).
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 6 April 2021, meaning the Tribunal must hand down a decision with respect to this application on or before 29 June 2021.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was listed to be heard on Friday 18 June 2021 and Monday 21 June 2021. However, on 16 June 2021, the Applicant requested an adjournment because his counsel had unexpectedly withdrawn for personal reasons. The Respondent adopted a neutral position with respect to the adjournment. The Tribunal granted the adjournment, and so the hearing took place on 24 June 2021 and 25 June 2021 by videoconference. This was due to the interstate location of the representatives, and the Applicant being located at Christmas Island Detention Centre.
The Applicant was represented by Ms Finegan of counsel, instructed by Ms Wong from the Asylum Seeker Resource Centre. The Tribunal thanks Ms Finegan for appearing pro-bono in this matter. The Respondent was represented by Mr Dennis from MinterEllison.
The Applicant gave oral evidence at the hearing and was cross-examined. Unlike the IAA, the Tribunal found the Applicant to be a credible witness. The Tribunal further found that he did not attempt to minimise his offending behaviour.
The Applicant called the following witnesses who gave evidence by telephone:
(a)Dr Jai Nathani, psychiatrist;
(b)the Applicant’s friend, SAH;
(c)the Applicant’s friend, NC; and
(d)the Applicant’s friend, YA.
The Tribunal found the evidence of the Applicant’s friends to be credible, and their offers to provide the Applicant with support in the community to be genuine. They were generally aware of the Applicant’s drug addiction and they were aware that he served a term of imprisonment for drug offences. They were not aware of the extent of the Applicant’s offending or the details of his drug addiction. Whilst this knowledge may offer an additional level of protection, the Tribunal found them to be credible and pro-social persons willing to offer a high level of support to the Applicant. YA’s oral evidence was slightly equivocal regarding how frequent his contact was with the Applicant. However, the Tribunal did not form the impression that he was trying to be evasive. Indeed, YA did acknowledge in his oral evidence and statutory declaration that he did not see his friends (including the Applicant) for a time in 2017 to 2018 when he was in a bad relationship, and that he reconnected with the Applicant last year (A3/paragraphs [10] and [14]). Therefore, the Tribunal was not of the opinion that he had overstated his frequency of contact with the Applicant.
The Tribunal admitted the following documents into evidence at the hearing:
(a)statutory declaration of the Applicant dated 16 June 2021 (Exhibit A1);
(b)Applicant’s Materials with attachments 1 to 34, comprising pages 1 to 1,329 (Exhibit A2);
(c)statutory declaration of the Applicant’s friend, YA, dated 16 June 2021 (Exhibit A3);
(d)section 501G Documents, numbered G1 to G33 and comprising 289 pages (Exhibit R1);
(e)Respondent’s Supplementary Bundle of Evidence, numbered S1 to S16 and comprising 118 pages (Exhibit R2); and
(f)Respondent’s Further Supplementary Bundle of Evidence, numbered FS1 to FS11, comprising 75 pages (Exhibit R3).
The Tribunal also had before it the following submissions filed by the parties:
(a)Respondent’s Statement of Facts, Issues and Contentions dated 11 May 2021 (RSFIC);
(b)Applicant’s Statement of Facts, Issues and Contentions dated 1 June 2021 (ASFIC);
(c)Applicant’s written Submission on Amendments to s 197C and 198 of the Migration Act dated 21 June 2021 (Applicant’s Amendment Submissions), which were also contained in Exhibit A2.
These proceedings were conducted with the aid of Farsi interpreters. On the first day of the hearing, after the opening submissions and the Applicant’s evidence was concluded, the interpreter (who was present in person) made representations to the Tribunal’s hearing attendant during a hearing break, which indicated that he had a pre-conceived negative view about the three character witnesses the Applicant proposed to call. When the hearing recommenced, the Tribunal disclosed the details to Ms Finegan and Mr Dennis in the absence of the interpreter and the Applicant and sought their views on how to proceed. They were agreeable to the Tribunal’s suggestion that the interpreter should not undertake any further interpreting in this matter. A different interpreter had already been booked for the second day of the hearing, and so the character witnesses were all rescheduled to the second day. A different telephone interpreter was obtained for the remainder of the first day of the hearing to interpret the evidence of Dr Nathani. The Tribunal’s discussion of these issues with the parties is recorded in the transcript at pages 57–61.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)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.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(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.
(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.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” paragraph 4(1) of Direction No 90) must take into account the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in paragraph 9 where relevant (paragraph 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above, on 12 February 2020 the District Court of Western Australia sentenced the Applicant to three years’ imprisonment for the offence of “[attempt to] possess prohibited drugs with intent to sell or supply” and one year’s imprisonment for the offence of “possession of stolen or unlawfully obtained property”, with the terms to be served concurrently (R2/99). Consequently, the Applicant does not pass the character test by virtue of ss 501(6)(a) and 501(7)(c) of the Migration Act.
The Applicant concedes that he does not pass the character test (A1/paragraph [3]).
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paragraphs 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers 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.
Paragraph 4(2) of the “[i]nterpretation” section of Direction No 90 provides the following definition:
(2)In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
(Original emphasis.)
Nature and seriousness of the conduct (paragraphs 8.1(2)(a) and 8.1.1 of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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).
The Applicant has committed 30 offences in total comprising 17 criminal offences and 13 driving/traffic related offences (G6/37–39; R2/98–102). Most of the Applicant’s criminal offences can be categorised as general in nature and are lower on the scale of seriousness than some other offences, such as violent or sexual offences. That is, they comprise weapons possession, drug possession, possessing drug paraphernalia and stolen or unlawfully obtained property.
Direction No 90 provides that some offences, by their very nature are serious. Specifically, paragraph 8.1.1(1)(a) and (b) of Direction No 90 set out specific types of conduct that may be considered either serious or very serious, including sexual offending, violence against women or children, family violence or crimes committed against vulnerable members of the community. The Applicant has not committed any of these types of offences or engaged in any such conduct.
Paragraph 8.1.1(1)(a)(i) states that violent crimes “are viewed very seriously by the Australian Government and the Australian community”. The Applicant does not have a history of violence and has only committed one offence that could be characterised as such. Specifically, on 27 March 2020, the Applicant was sentenced to a $2,000 fine for the offence of “assault public officer” which was committed on 19 April 2018. The Applicant attempted to spray a police officer (who was able to move out of the way) with pepper spray whilst the officer was trying to handcuff him after searching the Applicant and finding methamphetamine, a smoking implement and a knife with a 5cm blade in the pocket of the Applicant’s jeans (R2/66). It is arguable whether this offence can be characterised as violent. Indeed, when the facts were described to the presiding Magistrate by the prosecutor, the Magistrate asked, “Sorry, so what’s the assault? It didn’t hit him” (R2/26). Whilst it is questionable as to whether the offence was violent, it does, however, meet the description of a crime committed against government representatives or officials in the performance of their duties, which paragraph 8.1.1(1)(b)(ii) states to be serious. Accordingly, the Tribunal finds that this offence is serious.
Paragraphs 8.1.1(1)(a) and 8.1.1(1)(b) of Direction No 90 do not limit the range of offences that can be regarded as serious. As noted above, the Applicant has been charged with 13 driving/traffic related offences. These offences were:
(a)“careless driving” (committed on 28 December 2014);
(b)“damage/destroy compliance notice” (committed on 28 December 2014);
(c)“drive vehicle contrary to compliance notice (specified period)” (committed on 10 January 2015 and 16 January 2015)
(d)“drive vehicle contrary to compliance notice (drove)” (committed on 15 January 2015);
(e)“fail to carry interstate motor driver’s licence” (committed on 16 January 2015 and 15 January 2015);
(f)“reckless driving” (committed on 10 November 2017);
(g)“no authority to drive (WA resident failed to obtain)” (committed on 19 November 2017);
(h)“driving with prescribed illicit drug” (committed on 19 November 2017); and
(i)“no authority to drive – suspended” (committed on 28 January 2018, 4 February 2018 and 18 March 2018).
The Tribunal has often regarded driving/traffic related offences to be serious. Road traffic laws are in place to protect the community, including innocent road users, from harm. There is significant potential to lose control of a motor vehicle whilst driving under the influence of alcohol, or at the very least for a driver’s judgment and reflexes to be impaired. This can result in road traffic accidents, which can have very serious consequences for other innocent road users and pedestrians, including injury or death (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). Additionally, repeated breaches of road traffic laws tend to indicate a disregard for the law and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]). The Tribunal finds that the Applicant’s driving/traffic offences are serious, with the offences of “careless driving”, “reckless driving” and “driving with prescribed illicit drug” being of particular concern given the risk posed to other road users and pedestrians from those offences.
The Applicant also has the following drug convictions:
(a)“possessed drug paraphernalia in or on which there was a prohibited drug or plant” (committed on 10 January 2015, 19 April 2018 and 28 May 2018);
(b)“[attempt to] possess prohibited drugs with intent to sell or supply” (committed on 28 May 2018). Methylamphetamine weighing 26.74 grams with a purity of 86 per cent was located in a parcel at the post office. The drugs were substituted with an inert substance and the parcel was delivered to the Applicant. Police attended the Applicant’s house and found the parcel opened and the inert substance in the laundry cupboard (G5/20; R2/74);
(c)“possess a prohibited drug (methylamphetamine)” (committed on 19 April 2018);
(d)“possess a prohibited drug (heroin)” (committed on 28 May 2018);
(e)“possess a prohibited drug (cannabis)” (committed on 28 May 2018); and
(f)“attempt to obtain a prohibited drug” (committed on 6 February 2019).
The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83]). These harms will be discussed in further detail below. When sentencing the Applicant for the “[attempt to] possess prohibited drugs with intent to sell or supply” offence on 12 February 2020, Glancy DCJ stated (G8/47–48) that:
all offences of possession of or attempting to possess methylamphetamine are serious, and that’s because of the problems that methylamphetamine cause in the community. A lot of crime that comes before this court is caused by people either because they are using the drug and behave erratically, or because they’re committing offences in order to fund their drug use. And the community really suffers from the sale and distribution and the use of methylamphetamine by people in the community. …
Now, you were attempting to possess the drugs in order to sell them and the fact that you were doing that commercially increases the seriousness of your offending.
You also possessed quite a significant quantity – or attempted to possess quite a significant quantity of methylamphetamine, just below the trafficable quantity, and the weight of the drugs is a factor that I have to have regard to in deciding how serious this offending is. I also need to consider the purity of the drugs. They were, as I’ve already said, at 86% purity, and that’s a high purity.
And the reason those two things matter is because the more drugs that someone attempts to have, and the higher purity, the more harm can be done by the distribution into the community.
Her Honour further stated that “your offending is a serious example of this kind of offence” (G8/48). Given these judicial comments which refer to the seriousness of the offending, the commercial nature of the offending, the purity of the drugs and the harm that can result to the Australian community from such offending, the Tribunal finds that the Applicant’s drug offences, particularly the offence of “[attempt to] possess prohibited drugs with intent to sell or supply”, should be regarded as serious.
Paragraph 8.1.1(1)(c) of Direction No 90 also requires the Tribunal to have regard to the sentences imposed by the courts for a crime or crimes. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162, with regard to a similar consideration under Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014), Senior Member Poljak stated at [22] that: “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”.
Except for two offences, the Applicant’s offences have been dealt with by way of fines and licence disqualifications. The Applicant has only been sentenced to one effective term of three years’ imprisonment. Specifically, on 12 February 2020 the District Court of Western Australia sentenced the Applicant to three years’ imprisonment for the offence of “[attempt to] possess prohibited drugs with intent to sell or supply” and one year’s imprisonment for the offence of “possession of stolen or unlawfully obtained property”, with the terms to be served concurrently (R2/99). In her Honour’s sentencing remarks, Glancy DCJ stated that the seriousness of the drug possession offence and the need to protect the community warranted the imposition of a term of imprisonment (G8/50):
where the offence of attempting to possess prohibited drugs, and in particular methylamphetamine, at the amounts which you attempted to possess occur, the unusual [sic] sentence is a term of immediate imprisonment because of the seriousness of that offending.
And I’m positively satisfied, in your particular case, that because of the seriousness of the offences and the need to protect the community, it’s appropriate that a term of imprisonment be imposed in your specific case.
The imposition of fines and suspensions suggests that the courts regarded those offences to be of a less serious nature. However, as her Honour’s sentencing remarks above indicate, the imposition of the three year effective term of imprisonment was necessary because of the seriousness of the attempted “possess prohibited drugs with intent to sell or supply” and the “possession of stolen or unlawfully obtained property” (being a sum of $6,290 cash found by police in the Applicant’s bedroom – R2/84) offences.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 8.1.1(1)(d) of Direction No 90). As noted above, the Applicant has been convicted of 30 offences in total comprising 17 criminal offences and 13 driving/traffic related offences. These offences were committed between 28 December 2014 and 6 February 2019. Since his first offence, the Applicant has committed offences every year that he has been in the community. He did not commit any offences in 2016 because he was in immigration detention from 6 May 2015 to 13 July 2017. Despite the repeated nature of the Applicant’s traffic convictions, there is no overall increase in seriousness. However, when the Applicant’s criminal and driving/traffic related offences are viewed as a whole, the Applicant’s offences have increased in seriousness. In 2014 and 2015, his offences were mainly driving/traffic related, except for two weapons offences in January and February 2015 (involving knuckle dusters and a sword). However, after his release from immigration detention in July 2017, the Applicant committed six driving offences, before committing numerous criminal offences related to drugs, weapons and possessing stolen property. Therefore, the Tribunal finds that the Applicant’s offending history is frequent, and that there is a slight overall trend of increasing seriousness.
The number of offences the Applicant has committed, as well as the sentences of imprisonment he has received are likely to have burdened the resources of the police, the court system and corrective services. The Tribunal therefore finds that there is a cumulative effect of the repeated offending of the Applicant (paragraph 8.1.1(1)(e) of Direction No 90).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires the Tribunal to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. As noted in the background section above, the Applicant received a warning in the letter from the Department dated 26 June 2017, and a similar warning in the acknowledgement of receipt of that notice which the Applicant signed on 27 June 2017 (G9/52; G9/54). The Applicant’s evidence was, in summary, that he did not understand the warning due to language barriers. In his written statement the Applicant said (A1/paragraphs [54]–[55]; see also transcript/53–54):
In 2017, before I was granted my [Visa], an officer at the detention centre gave me a few pieces of paper. He told me I needed to sign it before they could issue me a visa. They were explained to me but I didn’t understand the implications. I signed the documents but did not know what I was signing. After this, I cannot remember if it was a few weeks, an officer came to wake me up and said, “Congratulations, you’re an Aussie.” I was told to go to property and at property, I was told congratulations, get your things and catch a flight back to Perth. I was then released from detention. I understand now that what I signed was a warning that my visa could be cancelled if I offend in future.
I accept now that they did warn me about this and I signed the warning, but I did not know it at the time. The problem was I did not have the language to understand. But also, it did not matter to me at that time because all I cared about was taking drugs. I was still using in detention.
The Tribunal accepts that the Applicant did not understand the warning he was given at the time due to his difficulties with the English language and therefore the Tribunal has not drawn an adverse inference from the Applicant continuing to offend after receiving the warning.
The Applicant’s representative submitted that the Applicant’s offending was less serious because his offending was due to his drug addiction. The specific submission was (ASFIC, paragraphs [104]–[105]):
The seriousness of the Applicant’s offences must also be viewed by reference to the context in which the offending was committed. The Applicant was not motivated by greed or malice. Rather, his offending was entirely a product of his drug addiction; offences were either committed while the applicant was under the influence of drugs or to facilitate the purchase of drugs. …
Those circumstances are to be contrasted with offences where the person was engaged in a fully sober, voluntary, calculated criminal act. The Applicant’s rehabilitation from drug addiction in light of that context is also a very significant factor to be considered in assessing the likelihood of re-offending and any concomitant risk to the Australian community.
The Tribunal does not accept that offending whilst under the influence of drugs, or to facilitate the purchase of drugs, is a mitigating factor which lessens the seriousness of the offending. The Tribunal agrees with the following remarks of Glancy DCJ, which her Honour made while sentencing the Applicant on 12 February 2020 (G8/49):
the fact that you were a drug addict yourself in my view doesn’t mitigate, it explains your offending, but it doesn’t excuse or diminish your offending.
Given the link between the Applicant’s drug use and his offending behaviour, the Tribunal does, however, agree that the Applicant’s rehabilitation from his drug addiction and his ability to stay abstinent from illicit drugs is a relevant factor to be considered in assessing the likelihood of him reoffending. This will be considered in the relevant section on the risk to the Australian community below.
In summary, the Applicant has committed 30 offences in total comprising 17 criminal offences and 13 driving/traffic related offences. He has offended frequently when he has been in the community, which the Tribunal has found has a cumulative effect. There is a slight escalation in the seriousness of his offending. Most of the Applicant’s offences are general in nature, are of lesser seriousness and were dealt with by way of fines and disqualifications. The Tribunal notes however that those fines and disqualifications did not deter him from further offending. He has served one effective sentence of imprisonment for three years. The Applicant’s drug offences, particularly the offence of “[attempt to] possess prohibited drugs with intent to sell or supply”, are serious, as indicated by his prison sentence and the sentencing judge’s remarks. So too are his repeated driving offences when viewed collectively, with the offences of “driving with prescribed illicit drug”, “reckless driving” and “careless driving” being the most serious because they involve conduct that places innocent road users at risk. Although it is questionable as to whether the “assault public officer” offence is a violent offence, it does constitute offending against a public officer in the performance of his duties which is serious. The Applicant’s weapons offences are at the lower end of seriousness for those types of offences. The weapons in question were a knife with a 5cm blade, plastic knuckle dusters and a samurai sword, which are less dangerous than other weapons such as guns or ammunition (transcript/47–50). Based on the analysis of each of the sub-paragraphs of paragraph 8.1.1(1) of Direction No 90 above, the Tribunal finds that the nature and seriousness of the Applicant’s conduct ranges from less serious to serious, which overall weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Nature of the harm (paragraphs 8.1.2(1) and 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct (paragraph 8.1.2(2)(a) of Direction No 90).
Should the Applicant commit further driving or traffic related offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possibly psychological harm.
The nature of harm if the Applicant were to commit further general offences (for example, drug possession, weapons possession, or property related offences such as possession of stolen property) is varied and may include a potential risk of violence, as well as financial and psychological harm to members of the Australian community. However, the nature of harm that results from such offending is generally less serious than the harm which results from other types of offending such as violent offending or sexual offending.
The Applicant has eight drug convictions including for possession of cannabis and heroin, possessing drug paraphernalia on which there was a prohibited drug or plant, attempting to obtain a prohibited drug and attempted possession of a prohibited drug (methylamphetamine) with intent to sell or supply. As noted above, the harms of trafficking in drugs were recognised by In SCJD where Senior Member Cameron stated at [81]–[83]:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
The Tribunal observes that purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. As was noted by Senior Member Cameron in SCJD, and Glancy DCJ when sentencing the Applicant on 12 February 2020 (G8/47), these harms include the prevalence of drug related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (paragraphs 8.1.2(1) and 8.1.2(2)(b) of Direction No 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (paragraphs 8.1.2(2)(b)(i) and 8.1.2(2)(b)(ii) of Direction No 90).
The Applicant arrived in Australia in October 2012 and was released into the community after a period in immigration detention in January 2013. He committed his first driving offence in December 2014 and his first criminal offence of possessing drug paraphernalia in January 2015. The Applicant has offended frequently whilst in the community, with breaks when he has been in immigration detention and whilst he was serving his term of imprisonment. This history tends to suggest that there is some likelihood of the Applicant reoffending in the future.
The Applicant’s representative submitted that the Applicant’s age (he is a 39-year-old man), means that he is less likely to reoffend (ASFIC, paragraph [118]). There is no evidential or logical basis for such a conclusion and consequently the Tribunal does not accept it.
The Applicant has a lengthy history of substance abuse. He stated in his statutory declaration dated 16 June 2021 that he occasionally used drugs as a teenager. He estimated that he was approximately 15 years old when he first tried marijuana and that he was approximately 17 or 18 years old when he tried opium. His evidence was that he would use opium and heroin approximately two to three times a month. However, it was when he came to Australia that he became a heavy user. His evidence was that from 2012 to 2018 his drug use “slowly got worse and worse”. The Applicant described being in backpackers’ accommodation where there were a lot of people taking drugs. He described feelings of loneliness and isolation and that he started associating with negative peers in the backpackers’ accommodation (transcript/45–46). The Applicant stated that when he first started using heroin in Australia, he would use it approximately two or three times a week and smoked marijuana about two or three times a month. The Applicant described becoming a daily user of heroin, which he smoked, from approximately 2013. The Applicant stated that he was homeless “on and off” and living out of his car. The Applicant was also in a relationship with a woman who was also a drug user. They obtained accommodation in the house of a person they called “Uncle” who was a drug dealer, and that Uncle’s customers would come to the house to take drugs (A1/paragraphs [44]–[58]).The Applicant’s association with negative peers in these environments would have contributed to the continuation and the increase in his drug use.
The Applicant was tested for substance use in prison on 8 February 2019, 19 February 2019 and 22 May 2019 with all tests being negative (parole review report created 3 April 2020 in R3/69). These tests occurred over a relatively short period. They did, however, occur approximately nine to 12 months into the Applicant’s term of imprisonment, which tends to support the Applicant’s claims of abstinence. However, the Applicant was involved in several adverse incidents whilst in prison, including his then girlfriend attempting to traffic contraband (7 grams of illicit drugs) into the prison on 6 February 2020, for which the Applicant received a one month loss of contact visits (R3/51). This was one of three incidents and six adverse notes recorded against the Applicant, which included a note on 19 September 2019 that the Applicant “appeared to try and secret his medication” (see also Offender Notes in R3/25–30). The Applicant’s legal representative submitted that he was abstinent in prison, however, these two adverse incidents are of concern because they involve drugs. The Applicant’s legal representative further submitted that the Applicant had also been abstinent from drugs during his most recent time in immigration detention. The Applicant gave evidence about his abstinence and his resolve to cease drug use in his statutory declaration dated 16 June 2021. He stated (A1/paragraphs [71]–[72] and [78]–[79]):
I no longer take any drugs and I have been clean for 2 years and 7 months. I stopped using in prison. When I first went to prison, I was still using for the first three months. I was taking heroin, marijuana and pills. I had gotten really bad. I was looking for drugs from this room to that room, from this prisoner to that prisoner, asking and begging for money from friends and looking for drugs.
Then there was this very bad smell coming from my stomach. I was worried I was dying and I was really unwell. I realised I had had enough of that miserable life, I was tired of it. I could not handle it anymore. My body did not feel good and I did not feel good about myself. I also looked really bad, like a skinny drug addict. When people offered me drugs in prison I was just too tired of it. I decided to quit. The previous times I tried to stop it did not click in my head, this time it did. …
While in prison I started going to Narcotics Anonymous meetings. I started going to the meetings with some other guys who were attending. There were about 10 or 12 of us altogether. A lot of people were using drugs in prison. It was easier to get drugs in prison than it was outside of prison. Narcotics Anonymous was like a class, they would advise us and counsel us to make better choices. It made me think more clearly.
Now I have a beautiful, healthy body and mind. I have the taste of a new life now. I do not want to be the person I was. This time is different. People around me are using drugs in detention. I can access drugs easily but I make the decision every day to refuse. My mind is stronger. I am not surrounded by bad people. I talk with my true friends in Perth, especially [A] and [E], and my mother and youngest sister in Iran. I socialise, I pray, I communicate better with my friends and family. I am not embarrassed or ashamed of myself anymore. It will be easier for me to make good choices because I much stronger in my mind and body, and because I have good people like [A’s] family, [E] and [AJ], [NC] and my other friends in Perth, influencing and supporting me.
The Tribunal accepts this evidence from the Applicant, which was consistent with his evidence at the hearing.
The Applicant’s evidence at the hearing also showed, in the Tribunal’s opinion, a strong desire and motivation to abstain from drug use in the future (transcript/46). At times he became emotional and he appeared to the Tribunal to genuinely appreciate the detriment that drug use had caused to his life. The Applicant’s assertion that he will not revert to illicit drug use may be assisted by his abstinence in prison and immigration detention, as well as by support from friends in the community.
The Applicant’s parole review report (R3/71) states that the Applicant “has demonstrated less than perfect prison conduct; he has not been charged under the Prisons Act, but has been involved in several incidents during this sentence”. Further, the Applicant’s parole assessment by Adult Community Corrections states (R3/59) that:
[The Applicant] has not previously been subject to a period of community supervision and thus his ability to comply with such an order remains untested. He has demonstrated mixed compliance with prison behaviour, incurring no formal charges, however, has recorded numerous incidents. This raises concern in regard to [the Applicant’s] ability to comply with stringent conditions of a term of Parole, however, given [the Applicant] is likely to be held in immigration custody, this may not be relevant.
The Applicant has finished serving his maximum sentence of imprisonment (having requested to deny his own parole – see R3/65) and is currently in immigration detention. If he is released into the community, he will not have the benefit of parole supervision to assist in his rehabilitation and reintegration. Although the majority of the prison incidents and notes were for minor behavioural issues, they occurred in the controlled environment of prison which raises some concern as to how the Applicant will behave if he is released into the community with no supervision. However, the Applicant does appear to have matured and to have gained some insight into these types of behaviours. For example, an incident was recorded in immigration detention on 2 November 2020 where the Applicant was recorded as being abusive and aggressive towards his doctor (G18/99–100). The Applicant accepted that the incident had happened, explaining that the doctor had accused him of giving away his medication which he requires daily for a neck injury. The Applicant stated that he had apologised to the doctor, and that after this incident he completed an anger management course (transcript/35 and 51; G29/221; A1/paragraph [70]).
The Applicant formally engaged with Narcotics Anonymous in prison on approximately three occasions, but he had difficulty participating due to his weak English (R3/58). To the Applicant’s credit, to overcome these language barriers, the Applicant formed his own group with other prisoners who were ex-addicts (transcript/36 and 109).
An “Offender Needs Analysis” was undertaken on 30 April 2020 (R3/10–11). It identified “some need for change” in the areas of “alcohol, substance use, addictive behaviour”, “thinking and behaviour” and “attitudes”, which was concluded to be a “moderate need”. The “need items” were further specified as being “substance misuse” and “attitudes/thinking”.
The Applicant’s parole assessment dated 30 April 2020 stated the following under the heading of “risk assessment” (R3/59):
[The Applicant] has been assessed as requiring intervention in the areas of substance abuse counselling and consequential thinking to decrease his risk of recidivism. This can be achieved by way of substance abuse counselling, which is available in the community. [The Applicant] has not engaged with intervention within the custodial setting, and attributes this to language barriers and as such his treatment needs remain outstanding. [The Applicant] is not considered an imminent risk of physical harm to the community given the nature of the current offences, however, should he relapse into illicit substance misuse, his risk of reoffending would be elevated.
In several mental health assessments in immigration detention, the Applicant was assessed as being a “low” risk of “harm to others” (A2/94). These assessments were undated but state that the Applicant is 38 years of age, so would have been undertaken in the last year.
Dr Jai Nathani assessed the Applicant by videoconference to Christmas Island Immigration Detention Centre on 18 December 2020 following a request from the Applicant’s legal representative. Dr Nathani is a psychiatrist who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists (FRANZCP). Dr Nathani’s other qualifications are an Advanced Masters in Medicine (Psychiatry) and a Bachelor of Medicine, Bachelor of Surgery (MBBS), both from the University of New South Wales. Dr Nathani also completed a placement at the New South Wales service for the treatment and rehabilitation of torture and trauma survivors between February 2019 and August 2019 where he worked with refugee persons (G26/167). Following his assessment of the Applicant on 18 December 2020, Dr Nathani produced a report dated 6 January 2021. Dr Nathani provided the following summary of his report (G26/171–173):
2.1[The Applicant] meets [American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5th ed, 2013) (DSM-5)] criteria for an Opioid Use Disorder.
2.2[The Applicant] does not display any evidence of having a mood disorder such as a Major Depressive Disorder or a psychotic disorder such as Substance-Induced psychosis, as defined by the [DSM-5].
2.3Due to being in detention, [the Applicant] has not been adequately treated for his Opioid Use Disorder and has not been given the opportunity to rehabilitate. Treatments with buprenorphine and participation in Narcotics Anonymous and Cognitive Behavioural Therapy are effective and durable interventions.
2.4Factors contributing to [the Applicant’s] offending include the high prevalence of opioid use and lower levels of stigma associated with opioid use in Iran as well is the opportunity to belong to and be accepted by social networks and groups in Australia. [The Applicant] resorted to criminal offences to maintain these relationships. …
2.7The risk of relapsing into opioid use is high if returned to the community in the absence of treatment. Commencing treatment while in detention will decrease the risk of relapse into opioid use from the high range to the moderate range at the time of being released into the community. The process of induction to achieve a steady state of medication takes up to 10 days. Thereafter, engaging in a treatment plan in the community, which combines medications with psychotherapy, will maintain the risk of relapse into opioid use at the moderate range in the short term. Remaining engaged in treatment and abstinent from opioids for two years will decrease the risk of relapsing into opioid use to the low range in the long-term.
2.8The risk of reoffending for drug trafficking is in the moderate range.
2.9The risk of reoffending for possession of drug paraphernalia, possession of substances and driving related offences is in the moderate range given the current risk factors.
2.10If [the Applicant] is able to engage meaningfully in treatment while in detention, the risk profile for non-violent reoffending can be reduced to the lower end of the moderate range. Social stability in the form of employment, accommodation and supportive friendships is required for the risk profile to be further lowered to the low range.
2.11The risk of right violent offending was not assessed during this review. There was a one-off incident in which [the Applicant] was physically aggressive towards a police officer. There is no known history of violence prior to or since that incident. A second review will be required to specifically explore risk factors for violence and reformulate the risk profile, with the use of validated and structured assessment tools such as the [HCR-20 (Kevin Douglas, Stephen Hart, Christopher Webster and Henrick Belfrage, HCR-20V3: Assessing risk of violence – User guide (Mental Health, Law, and Policy Institute, Simon Fraser University, 2007)].
Dr Nathani assessed the Applicant again on 18 January 2021, and produced a report dated 19 January 2021 (G26/194). At the beginning of the report Dr Nathani stated, citing the briefing letter from the Applicant’s solicitor, that he had been asked to provide an overall assessment of the Applicant’s likelihood of risk of reoffending in the context that his convictions relate to offences against the person, driving offences and drug-related offences. Dr Nathani also stated that this report assessed the risk of violence given that it was not addressed in the first report (G26/196). In this report Dr Nathani stated that, “[t]he risk of violence in [the Applicant] is low” (G26/198; G26/213). Dr Nathani took into account the fact that the Applicant had completed an online anger management course in detention, and that he was able to give an example of how he did not participate in protests at the detention centre with other inmates “despite sharing their feelings of anger and despair” because he understood there would be consequences, including imprisonment (G26/201).
Dr Nathani confirmed that, as was discussed in detail in his previous report dated 17 January 2021, the Applicant’s risk of relapsing to opioid use if he is released from detention “is currently in the moderate range” but that “relapsing into opioid use in the future is unlikely to increase [the Applicant’s] risk of violence” (G26/212–213). When assessing the risk of future violence using the HCR-20, under the factor concerning “antisocial behaviour”, Dr Nathani referred to evidence of the Applicant recently having engaged in drug trafficking in “multiple settings” whilst in the community and in detention (referring to 10 Suboxone strips being located in a parcel addressed to the Applicant on 26 June 2020 (G18/101)). Dr Nathani stated that “[t]his risk factor … is present and in [his] opinion, is of high significance” (G26/205). Also, as part of this assessment, when assessing the factor relating to “history of problems with substance use”, Dr Nathani referred to (G26/206):
[The Applicant’s] commencement of opioid use at an early age, chronic use of opioids across developmental stages, involvement in drug trade and the interference in his educational endeavours, interpersonal relationships and vocational endeavours clearly indicate that this risk factor … is present and of high significance.
Following a further request from the Applicant’s legal representatives, Dr Nathani assessed the Applicant again on 8 June 2021 and produced a supplementary report dated 14 June 2021 (A2/1149–1163). Dr Nathani stated that (A2/1151):
2.1The main changes in [the Applicant’s] presentation between January and June 2021 are his increased help-seeking behaviours, engagement with Drug Health Services, mobilization of supports and efforts to secure stable accommodation and employment.
This response from Dr Nathani seemingly refers to information set out in the briefing letter from the Applicant’s solicitors to Dr Nathani dated 4 June 2021 which requests this supplementary report (A2/1164–1168). The briefing letter refers to the Applicant having secured counselling with a drug and alcohol counselling association, with appointments having been scheduled on 10 June and 17 June 2021. The Tribunal notes a letter from the association dated 31 May 2021 (A2/173). The briefing letter also refers to the Applicant having attended his first online group session with the Smart Recovery Australia on 26 May 2021, with further sessions being available weekly, and that the Applicant had sought temporary counselling through an alcohol and drug support line, having had a session with a counsellor on 27 May 2021, and having another session with the same counsellor scheduled for 4 June 2021. The Applicant’s legal representatives further mentioned that the Applicant had sought methadone treatment but was informed that it was only suitable for patients with an active heroin addiction. The Tribunal notes a handwritten note which appears to be from a “Dr Tien” confirming this (A2/171). The Applicant also completed a seven-hour course on 17 December 2020 titled “Drug and Alcohol Abuse 101” whilst in immigration detention (G29/221).
Dr Nathani stated in his supplementary report of 14 June 2021 that “[t]he risk of violent reoffending remains in the low range” (A2/1152). He further stated that (A2/1162):
The risk of non-violent reoffending, including drug trafficking, possession of drug paraphernalia, possession of substances and driving offences are in the moderate range, per my report dated 6 January 2021. Similar to the risk of relapse into opioid use, [the Applicant] is in the lower end of the moderate range of risk of non-violent reoffending.
The Tribunal acknowledges the expertise of Dr Nathani and accepts this assessment of risk.
The Applicant’s friend SAH, stated in a statutory declaration dated 15 June 2021 that his father could employ the Applicant in his grocery store or at a butcher shop. His friend is also awaiting the completion of a retail building where he intends to set up a restaurant and shisha lounge and to employ the Applicant (A2/1178 para [18]). SAH has also offered to provide the Applicant with accommodation in the home he shares with his girlfriend which was previously assessed as suitable for the Applicant to live if he was paroled (A2/1179 paragraph [21]). The Applicant’s friend, NC, stated in a statutory declaration dated 10 June 2021 that she and her family are able to offer the Applicant social and moral support and that she would help him find work and encourage him to play soccer (A2/1193–1194 paragraphs [20]–[22] and [25]). Another friend of the Applicant, YA, stated in his statutory declaration that he is willing to assist the Applicant in gaining employment with his traffic control company and that he is also willing to provide the Applicant with accommodation if he requires it (A3/paragraphs [21]–[22]). The Tribunal further notes that the Applicant has obtained a certificate in workplace safety and another certificate in training and operation of machinery for floor polishing (G27/215–216) which may also assist him to obtain employment. Having support from these friends, who are generally aware of his substance misuse issues, is likely to assist the Applicant’s rehabilitation and reintegration into the community. So too is engagement in employment and soccer which are likely to make meaningful and productive use of the Applicant’s time, which may also reduce the likelihood of his reoffending.
After considering the evidence discussed above regarding the likelihood of the Applicant reoffending, the Tribunal is of the opinion that the Applicant’s likelihood of reoffending in a violent manner is low and that his likelihood of drug related offending and driving/traffic related offending is moderate. This evidence includes:
(a)The opinion of Dr Nathani that the Applicant is a low risk of violent offending, and a moderate risk of non-violent reoffending.
(b)The Applicant has had long-standing illicit substance misuse issues which have been the main contributing factor to his offending. The Tribunal has considered that the Applicant has had a period of abstinence in prison and immigration detention of approximately two years and seven months. The Tribunal has also considered Dr Nathani’s opinion that the Applicant’s risk of relapsing into opioid use is high if he is returned to the community in the absence of treatment. However, as Dr Nathani also noted, this risk would decrease to the moderate range at the time of the Applicant’s release into the community if he were to have commenced treatment. Whilst the Applicant has stated an intention to abstain from future drug use, he has only recently started to engage in treatment interventions, including a seven-hour drug and alcohol course in December 2017. He has not undergone any intensive treatment and his abstinence is untested in the community. He has, however, started counselling with a drug and alcohol counselling association as well as commencing online group sessions with Smart Recovery Australia. If he continues with this counselling, it is likely to be a protective factor. The Tribunal finds there to be a moderate likelihood of the Applicant relapsing into opioid use if he is released into the community.
(c)In her Honour’s sentencing remarks on 12 February 2020, Glancy DCJ stated (G8/49–50) that:
… at the moment, given that you haven’t done any programs or had any counselling to help you stay away from drugs, because you don’t have employment and because you don’t seem to have family and friends around who are good people who can support you in the community, I think you do remain at risk of reoffending.
The Applicant has now addressed these concerns and it is therefore probable that his likelihood of reoffending has been reduced. Feelings of isolation were a factor which influenced the Applicant’s drug use when he first came to Australia, however the Applicant now has the support of prosocial friends in the community who are aware of his past drug use and who will assist him to remain abstinent. He also has stable accommodation, as well as potential employment options available to him which are likely to assist his reintegration into the community.
Given the nature of the Applicant’s offending which is primarily related to his personal drug use, the Tribunal is not of the opinion that the Applicant’s conduct fits within the category of conduct so serious that any risk of it being repeated is unacceptable as may be the case with violent or sexual offending (see paragraph 8.1.2(1) of Direction No 90).
The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on paragraph 8.1 of Direction No 90
The Tribunal has found that paragraphs 8.1.1(1) and 8.1.2 both weigh moderately against revocation of the Cancellation Decision. Thus, overall, the Tribunal finds that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paragraphs 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not committed any offences involving family violence, nor are there any allegations of family violence in the materials before the Tribunal. Consequently, this consideration is not relevant.
The best interests of minor children in Australia affected by the decision (paragraphs 8(3) and 8.3 of Direction No 90)
Direction No 90 requires decision-makers to determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker, in this case the Tribunal, must consider:
(4)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 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Paragraph 9.1(8) of Direction No 90 is relevant to this application because it includes circumstances where a protection visa is refused. This paragraph provides that the non-citizen will not be able to make a further application for a protection visa while they are in the migration zone, and they will be prevented from applying for any other class of visa, except for a Bridging R (Class WR) visa:
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will 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 - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
As noted in the background section above, on 18 January 2017, the IAA accepted that the Applicant was owed protection obligations because the IAA reviewer accepted that he was bisexual and that he may suffer serious harm if he were returned to Iran. The reviewer stated (G16/90, paragraphs [44]–[47]):
I am satisfied that if the applicant returns to Iran and expresses his sexuality there is a real chance that he will be identified as homosexual and suffer harm such as harassment, assault, arrest, detention, morality charges and punishment at the hands of the Iranian authorities, and discrimination, harassment and abuse from members of society. I find that this amounts to serious harm within the meaning of s.5J(4)(b).
I find that the reason for the harm is the applicant’s sexuality, and that bisexual or homosexual men are a particular social group within the meaning of s.5L, sharing the characteristic of their sexuality, which I find to be innate or immutable. The shared characteristic is not a fear of persecution. I am satisfied that the harm would be for the essential and significant reason of the applicant’s membership of this particular social group: ss.5J(1)(a) and (4)(a). Given the criminalisation of same-sex conduct under Iranians law, the reported pattern of abuse by authorities, and the widespread level of societal discrimination, I find that it involves systematic and discriminatory conduct: s.5J(4)(c). I find that the harm amounts to persecution within the meaning of s.5J(4).
The harm would be inflicted by both Iranian authorities and members of society. Given that homosexual conduct is illegal, and based on the information regarding the treatment of gay men by the authorities, I am satisfied that the authorities are not willing to offer the applicant protection and that effective protection measures against either official or societal harm are not available: ss.5J(2) and 5LA(1)(b). I am satisfied that the real chance of persecution relates to all areas of the country: s5J(1)(c).
I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s.5J. The applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. …
Consequently, as was noted in the background section above, the IAA remitted the delegate’s decision to refuse to grant the Visa to the Applicant for reconsideration, with the direction that the Applicant is a refugee within the meaning of s 5H(1) of the Migration Act. The Respondent reiterated the IAA’s assessment that “the delegate accepted the IAA’s assessment that the applicant was a person in respect of whom Australia has international non-refoulement obligations” and did not ask this Tribunal to make a different finding (RSFIC, paragraph [39]). Given the decision of the IAA, which is relatively recent, and the lack of any submissions from the Respondent that the finding should be disturbed, the Tribunal finds that it is appropriate, applying paragraph 9.1(6) of Direction No 90, for the Tribunal to assume in the Applicant’s favour that the claimed harm will occur and to make a decision on that basis.
If the Tribunal was to affirm the Reviewable Decision, the legal consequences for the Applicant, who is a person to whom Australia currently owes protection obligations, would be as follows:
(a)Australia will not return the Applicant to Iran in circumstances where Australia would breach its international non-refoulement obligations by returning the Applicant.
(b)The Applicant would be prevented from making another application for a protection visa while he is in the migration zone, or any other class of visa except a Bridging R (Class WR) visa (paragraph 9.1(8) of Direction No 90).
(c)The Minister may consider exercising personal discretion to grant another visa, or to make a residence determination (see paragraph 9.1(3) of Direction No 90). However, as the Full Federal Court stated in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 (WKMZ) at [124]:
it is difficult to see how any delegate acting rationally and reasonably, or the Minister herself or himself acting rationally and reasonably, could decide to grant a visa to a person who a) has had a different visa cancelled and b) has applied for the cancellation to be revoked but has been unsuccessful. To grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an “unacceptable” risk to that same community …
(d)If the Minister does not exercise his personal discretion to grant another visa or make a residence determination, the Applicant is likely to be detained indefinitely. The concept of indefinite detention was explained by the Full Federal Court in WKMZ at [123]:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
Mr Dennis submitted that indefinite detention could include detention in the community rather than in a detention centre facility.
(e)Mr Dennis further submitted that removal to a third country was also a possibility that could be considered by the Minister.
The Applicant’s representatives referred the Tribunal to several reports which discuss the negative impact on the mental health of persons who are subject to prolonged or indefinite detention. These included the Joint Select Committee on Australia’s Immigration Detention Network (Final Report, March 2012) at [5.4]; Commonwealth Ombudsman, Suicide and Self-Harm in the Immigration Detention Network (Report, May 2013) at [7.80]–[7.97]; and Amnesty International, The Impact of Indefinite Detention: The Case to Change Australia’s Mandatory Detention Regime (Report, June 2005) pages 21–22 (A2/174–839; see also A2/840–856).
More specifically to the Applicant, the Tribunal has also had regard to the opinion of Dr Nathani about the likely effect of indefinite detention on the Applicant. In his report dated 6 January 2021, Dr Nathani stated (G26/172):
2.6In the event of ongoing detention and without treatment, [the Applicant] is at moderate risk of relapsing into opioid use. While in detention, restricted access to opioids is a protective factor. He is at moderate risk of developing an Adjustment Disorder with depressed mood. He is at low risk of developing a Major Depressive Episode.
In Dr Nathani’s supplementary report dated 14 June 2021 (A2/item 27), Dr Nathani provided the following opinion regarding the impact of indefinite detention on the Applicant if he is indefinitely detained (A2/1151):
2.4The risk of relapse into opioid use while in detention is in the low range based on the assumption that access to substances is restricted while [the Applicant] is in detention.
2.5With indefinite detention, the risk of developing an Adjustment Disorder with depressed mood remains in the moderate range.
2.6With indefinite detention, the risk of developing a Major Depressive Episode is in the low range in the short to medium term, but high in the long-term. With recurrent depressive episodes, the diagnosis evolves towards Major Depressive Disorder which is a chronic condition.
The Tribunal has, as directed by paragraph 9.1(2) of Direction No 90, carefully weighed Australia’s non-refoulement obligations against the seriousness of the Applicant’s offending. This was evaluated in detail above under the “nature and seriousness of the conduct” part of the first primary consideration, which weighed moderately against revocation of the Cancellation Decision. Whilst some of the Applicant’s drug and driving/traffic related offences are serious, the most likely consequence to the Applicant of the Tribunal affirming the Reviewable Decision is that he will face indefinite detention unless the Minister exercises discretion to grant him another visa or to make a residence determination.
There is no evidence, and Mr Dennis confirmed that he had no instructions, as to whether the Minister was proposing to consider these options, or whether the Minister had considered, or was proposing to consider, the other option of removing the Applicant to a third country. Given the nature of the character concerns, as was stated by the Full Federal Court in WKMZ, it is most unlikely that the Minister will exercise discretion that would result in the Applicant being released into the community. In this regard, the Tribunal notes information produced by the Applicant’s representatives obtained under freedom of information. This document shows that (as at 30 April 2021) less than five bridging visas were granted per year between 2016 and 2021 under s 195A of the Migration Act, where the visa holder failed the character test under s 501 of the Migration Act and where non-refoulement obligations were owed (A2/1304). Further, the Tribunal accepts the evidence of Dr Nathani regarding the possible detrimental mental health impacts that the Applicant may suffer if he is indefinitely detained.
On balance, the Tribunal finds that this consideration of Australia’s international non-refoulement obligations weighs very strongly in favour of the revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is currently 39 years of age, having arrived in Australia in 2012 as a 30-year-old man.
In the RSFIC, the Respondent accepted that the Applicant faces significant impediments as a result of his sexuality if he is returned to Iran. However, the Respondent contended that there are no language or cultural barriers and that the Applicant would be able to establish himself “having regard to his age and health” (RSFIC, paragraph [40]).
As discussed in the preceding section on non-refoulement, the Applicant is a person to whom Australia currently owes protection obligations, and he is likely to face serious harm if he is returned to Iran. The recent amendments to s 197C of the Migration Act confirm that a non-citizen cannot be removed from Australia if there are existing protection obligations that continue to be engaged. This was put to the parties at the hearing. Mr Dennis agreed with this approach and submitted that this consideration should accordingly have neutral weight.
On the other hand, Ms Finegan submitted that due to the existence of non-refoulement obligations, this consideration should weigh very strongly in favour of revocation of the Cancellation Decision. The Tribunal does not agree with this approach because the wording of the extent of impediments consideration requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed to Iran. Given that he will not be removed to Iran as long as he continues to be owed protection, the Tribunal finds that a proper characterisation, based on a literal interpretation of the plain words of this consideration, supports this consideration being given neutral weight whilst removal is not a possibility.
Ms Finegan further referred to the Applicant’s Amendment Submissions at paragraph [19] which stated that “there is a real risk that the Minister can arbitrarily make a decision that the Applicant is no longer a person in respect of whom is owed protection under s 197D(2) of the Act”. The Respondent has, however, conceded at this hearing that the Applicant is a person to whom Australia owes protection obligations and there is no evidence that the Minister is proposing to make a contrary decision under s 197D(2) of the Migration Act. Thus, for the Tribunal to entertain that the Minister may engage in such a decision in the future would be to engage in speculation. Further, such a decision cannot be made arbitrarily. The Minister must be satisfied that the Applicant is no longer owed protection under specific sections of the Migration Act, and although there is no prior notification given to a person that the Minister is proposing to make such a decision, the Minister’s decision is reviewable in the Migration and Refugee Division of this Tribunal.
In summary, the Tribunal finds that whilst there are existing protection obligations concerning the Applicant, Australia will not breach its international obligations by refouling him to Iran. Consequently, the Tribunal finds that paragraph 9.2 of Direction No 90, being extent of impediments if removed, is not presently applicable to this application and should be given neutral weight.
Impact on victims
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
Links to the Australian Community
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.
As noted above, the Applicant arrived in Australia in 2012 as a 30-year-old man and has spent a significant amount of time in immigration detention. As also noted above, he began offending within two years of arriving in Australia, committing his first driving offence in December 2014 and his first criminal offence of possessing drug paraphernalia in January 2015. Therefore, less weight should be given to this part of the strength, nature and duration of ties to Australia consideration.
The Applicant has spent significant amounts of time in immigration detention and in prison, and so he has only been able to make minimal positive contributions to the Australian community. Specifically, he was in immigration detention between 13 October 2012 to 17 January 2013; 6 May 2015 to 13 July 2017; and 28 May 2020 to 5 September 2020. He was also serving a three-year term of imprisonment from 28 May 2018 (R2/99).
In their statutory declarations, the Applicant’s friends do, however, refer to some positive contributions that he has made. For example, the Applicant’s friend YA stated that (A3/paragraph [24]):
I have seen him help new migrants who come to Australia by offering them information and tips that help them settle into the community. For example, he would show them where to get groceries and offered to help with the shopping. Another time, at a soccer game, a friend needed money to catch a bus urgently and he gave him $10 without being asked. He does these acts of kindness without ever mentioning it to anybody or boasting about it. I believe that upon release [the Applicant] will continue to maintain these attributes.
The Applicant’s friend SAH stated (A2/1177, paragraph [13]):
Even though he was on drugs before, [the Applicant] was still a good person. He always wanted to help people. Even if he was doing something wrong, he would encourage others to do the right thing. He was always willing to help and when he came to my restaurant I could rely on him to help out with clearing away plates, taking out there shisha to the customers or packing up. I trusted him to do anything in the restaurant. [The Applicant] helped me and my family because that is the type of guy he is. He is very generous and always wants to help others. Back in 2013 he would also help out at my Dad’s shop mopping or cleaning. Around 2017 when I renovated the restaurant, he helped me with setting it up, doing whatever I needed help with, whether cleaning or bringing stuff in or moving things around. The room needed a lot of work and we transformed it into a successful restaurant. He never wanted anything in return for all the work he did.
Further, the Applicant’s friend NC described how he would assist at community events (A2/1191, paragraph [11]):
At community functions I would often witness [the Applicant] clean up and help at events, with no expectation of thanks in return. The events were usually in halls. [The Applicant] would help with dishing out food, setting up, cleaning up and directing people, ensuring that things ran smoothly. In my experience, the young men in the Afghan community usually take on the responsibility without being asked to do these things and although [the Applicant] is Iranian, it was the same with him. I personally saw him helping at about four or five cultural events over about a year or two. He may have helped at others too. …
Some weight is given to these positive contributions, but overall, they are minimal and do not outweigh the Applicant having started offending shortly after arriving in Australia.
The Applicant does not have any family in Australia. He does, however, have close social ties to the community, namely friends (including NC, SAH and YA) who have submitted statutory declarations and who all gave evidence at the hearing that they are willing to support him in the community. As noted above, the Applicant’s friend SAH has offered the Applicant employment and accommodation. His friend NC also stated that she and her family would offer the Applicant social and moral support and that she would help him find work. Another friend, YA stated that he would help the Applicant obtain employment with his traffic control company.
In summary, the Applicant’s ties to Australia are minimal. He has some good friends, but no immediate family members are in Australia.
Overall, the Tribunal finds that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs moderately against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct to which he has in the past weighs moderately against the revocation of the Cancellation Decision.
Overall, the Tribunal has concluded that the protection of the Australian community primary consideration weighs moderately against the revocation of the Cancellation Decision.
With respect to the remaining primary considerations, the Tribunal found that:
(a)the family violence primary consideration was not relevant;
(b)there was minimal information regarding relevant minor children before the Tribunal, and so this primary consideration was given neutral weight;
(c)the expectations of the Australian community would be that the Cancellation Decision should not be revoked, and that this primary consideration weighed strongly against the revocation of the Cancellation Decision.
The Tribunal found the following with respect to the other considerations:
(a)international non-refoulement obligations weighed very strongly in favour of revocation of the Cancellation Decision, especially given that the most likely legal consequence for the Applicant is indefinite detention;
(b)consideration of the impact on victims did not arise on the material before the Tribunal;
(c)the extent of impediments if removed was given neutral weight, as Australia will not refoul the Applicant because he is a person to whom Australia currently owes protection obligations; and
(d)the Applicant’s links to the Australian community, particularly the strength, nature and duration of ties to Australia weighed slightly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before the Tribunal.
The Tribunal finds that although the primary consideration of the protection of the Australian community weighs moderately against the revocation of the Cancellation Decision, and the expectations of the Australian community weigh strongly against the revocation of the Cancellation Decision, those considerations are outweighed by the other consideration of Australia’s international non-refoulement obligations, which weighs very strongly in favour of revocation of the Cancellation Decision. The Applicant is a person to whom Australia owes protection obligations and the Tribunal has found that the legal consequences for the Applicant if the Tribunal were to affirm the Reviewable Decision would be that the Applicant is likely to be indefinitely detained. The Tribunal accepted the evidence put forward by the Applicant, particularly the evidence of Dr Nathani, as to the likely detrimental effects of indefinite detention on the Applicant. Although the extent of impediments if removed consideration was given neutral weight because the Applicant cannot be returned to Iran in breach of Australia’s non-refoulement obligations, the Applicant’s links to the Australian community (which weighed slightly in favour of the revocation of the Cancellation Decision) further add to the overall weighing exercise in favour of the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and the relevant other considerations in Direction No 90, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 175 (one hundred and seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
...[Sgd]....................................................................
Associate
Dated: 29 June 2021
Dates of hearing: 24 and 25 June 2021 Representative for the Applicant: Ms S Finegan, instructed by Ms L Wong, Asylum Seeker Resource Centre Representative for the Respondent:
Mr L Dennis, MinterEllison
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
-
Remedies
6
6
0