DMSB and Minister for Home Affairs (Migration)
[2019] AATA 679
•15 March 2019
DMSB and Minister for Home Affairs (Migration) [2019] AATA 679 (15 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7603
DMSBRe
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member K Parker
Date:15 March 2019
Place:Melbourne
The Tribunal sets aside the decision under review made on 21 December 2018 and in substitution decides that the Applicant not be refused a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).
.............[sgd]..........................................................
Member K Parker
MIGRATION – application for review of decision to refuse protection visa on character grounds – Sudanese citizen – previous finding that Australia owes protection obligations to applicant – applicant lawfully present in Australia for last 20 years on successive bridging visas awaiting processing of visa application – applicant committed drug-related and other offences – applicant diagnosed with psychological condition – effects of drug addiction - applicant does not pass character test – whether discretion should be exercised to refuse visa application under s 501(1) of the Migration Act 1958 (Cth) – expectations of Australian community – protection of Australian community – likelihood of relapse and reoffending – nature of harm – existence of protective factors that did not exist previously – reliance upon expert evidence by psychiatrist – decision set aside
Legislation
Administrative Appeal Tribunal Act 1975 (Cth) s 35
Drugs, Poisons and Controlled Substances Act 1981 (Vic)Migration Act 1958 (Cth) ss 499, 500, 501, 501G
Cases
BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96
BHKM and Minister for Immigration and Border Protection [2018] AATA 3
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
NKWF v Minister for Immigration and Border Protection [2018] FCA 409
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Tran v Minister for Home Affairs [2019] AATA 199
Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 44
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
REASONS FOR DECISION
Member K Parker
15 March 2019
DECISION SUMMARY
The Applicant, DMSB,[1] seeks review of a decision made on 21 December 2019 by a delegate of the Minister for Home Affairs to exercise discretion to refuse to grant him a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth) (Act) (reviewable decision).
[1] The effect of s 501K of the Migration Act 1958 (Cth) as it applies to DMSB’s application prohibits the Tribunal from publishing any information which may identify DMSB or any relative of DMSB. For this reason the Tribunal will use the pseudonym “DMSB” in place of the Applicant’s real name in these Reasons for Decision. Further, certain details have been omitted to prevent identification of DMSB or any of his relatives. The Confidential Schedule attached to these Reasons for Decision contains information which may lead to the identification of DMSB and his relatives. For this reason, the Confidential Schedule will not be published and shall remain confidential to the parties. It forms part of these Reasons for Decision.
DMSB is 45 years old. He was born in and is a citizen of Sudan. His family fled to an English-speaking country in the Northern Hemisphere when DMSB was about seven years old. DMSB completed primary school and the first year of high school in this country. When DMSB was 15 he returned to Sudan with his family during a period of relative political stability. DMSB completed his secondary schooling in Sudan in 1993.
The political situation deteriorated again in Sudan. His father was also known political activist. By 1993, DMSB had become a political activist in his own right. The Sudanese government viewed them as potential dissidents. DMSB’s family fled Sudan once more. They obtained visas to travel to the United Arab Emirates (UAE) after staying for a short time in another country.
DMSB completed two years of tertiary studies in India in the mid-1990’s. He returned to the UAE due to an illness. Thereafter, he worked for a few months in an airport hotel and then, at an airport for the next few years.
DMSB arrived in Australia in 1998 (at the age of 25) on a Tourist (Class TR) visa. Shortly after his arrival (in November 1998), DMSB applied for a Protection (Class XA) visa. He feared returning to Sudan.
Initially, a delegate of the Minister decided that Australia did not owe DMSB any protection obligations and in September 1999, refused his visa application. DMSB sought review of this decision. His application was lodged one day late. The then Refugee Review Tribunal (RRT) found that it did not have jurisdiction to hear the application for review.
DMSB’s legal representatives challenged the validity of the notice of the decision to refuse his visa application. The notice was found to be invalid. In March 2009, a new notice of refusal of visa application was served on DMSB. DMSB sought review of this further decision.
Ten years later (in 2010), the RRT set aside the decision under review and remitted the decision for reconsideration with a direction that Australia owed protection obligations to DMSB (the RRT decision). In May 2010 DMSB submitted a form setting out his personal particulars for character assessment. The reviewable decision was made a further eight years later on 21 December 2018.
Aside from the matters referred to above, there was no evidence before the Tribunal to indicate the processing of DMSB’s visa application took a total of 20 years. It is possible there may have been some difficulties in the Department being able to contact DMSB during this time, given his predominately itinerant lifestyle (there is no evidence before the Tribunal about this). However, the Tribunal notes the Department of Home Affairs’ records produced at the hearing indicated that DMSB was present in Australia lawfully at all times during this 20 year period. DMSB was granted consecutive bridging visas.
DMSB’s most recent bridging visa was cancelled after he committed his most recent criminal offences. DMSB was taken into immigration detention on 23 October 2017 and has remained in detention until the present time.
In a confidential schedule annexed to this Decision (Confidential Schedule), the Tribunal has set out a summary of RRT’s reasons upon which it found that Australia owed him protection obligations. The Minister concedes that Australia owes DMSB protection obligations as previously found by the RRT.
The Tribunal notes that eight years have passed since the RRT made its decision. Current country information (referred to below) indicates that the situation in Sudan has not improved since 2010, and remains extremely unstable. Accordingly, the Tribunal considers that the RRT decision remains valid at the present time and that Australia currently owes protection obligations to DMSB. The Minister did not contend otherwise.
The Tribunal is satisfied that if DMSB was returned to Sudan, he would be in grave danger and is likely to be subjected to serious injury, torture or death, due to DMSB’s and his family’s political activities in the past as detailed in the Confidential Schedule. For the reasons expanded upon below, Australia’s international non-refoulement obligations are to form a significant consideration for the Tribunal in deciding this application.
Against this, the Tribunal was required to consider DMSB’s history of criminal offending spanning a period of seven years. The offences were predominately drug-related including trafficking and some offences which might appropriately be characterised as petty crimes. DMSB was also convicted of contravening community correction orders and failing to answer bail. The offending occurred on a repeated basis. The last conviction was entered in January 2018.
DMSB did not commit offences or engage in any conduct of a violent or sexual nature. Nor were his crimes intentionally directed at any particular member(s) of the community. Nevertheless, DMSB’s offences committed while he was living freely in the community, included trafficking of prohibited substances, which the Tribunal considers as inherently serious offences. As the case authorities clearly indicated, the Tribunal is unable to look behind the convictions recorded for DMSB.
However, it is open to the Tribunal to consider the circumstances and the context of DMSB’s criminal offending provided that the Tribunal stops short of making any findings that would disturb the fundamental elements of the convictions against DMSB. In this case, the Tribunal (differently constituted) directed the parties to make requests for a summons or summonses to be issued by the Tribunal by 24 January 2019. Usually in applications of this kind, the Minister will request summonses requiring the relevant courts and police authorities to produce their respective records relating to the history of criminal offending. No such request was made by either party in this case. Consequently, the only evidence before the Tribunal about the circumstances and context of DMSB’s offending was the personal account provided by DMSB.[2] There was no evidence put before the Tribunal by the Minister which contradicted the circumstances and context of DMSB’s offending as described by him.
[2] After the hearing, on 12 March 2019, the Minister’s representative provided the Tribunal and gave to the Applicant a set of Notices of Orders Made issued by various Magistrates recording the convictions entered against DMSB and the sentence imposed for each conviction. The details of the offences given on those forms were limited and they were produced to clarify the precise sentences imposed on DMSB for his various offences.
The trafficking of drugs by DMSB arose in the context of what he described as “hustling”, engaged in by him and a group of about seven or eight of his friends who were also “users”. DMSB told the Tribunal that the members of this group would “chip in” to fund the purchase of the drugs (specifically, in the case of heroin usually about 1 gram or in some instances, 1.7 grams, would be the quantity purchased at any one time).
By doing so, DMSB and his group of friends were able to buy the drugs at a cheaper price than would be the case if they each purchased a smaller amount individually. DMSB also gave evidence that the “dealers” would also limit the number of people who they transacted with out of concern of dealing with more people than they had to in case any one such person was an undercover cop. Once the funds were raised, someone from the group (and DMSB openly admitted that that it could be him) either alone or with another member of the group, would approach a “dealer” to make the purchase. The drugs purchased would then be split up and distributed for use among the group. Sometimes they would take the drugs together. DMSB also said there was a certain degree of “comradery” amongst the group and there were times where they lived together. For a period of time he lived with a group of such friends in a suburb of Melbourne. DMSB said that the group’s primary focus was to obtain and use drugs.
DMSB was not convicted of “trafficking in a drug or drugs of dependence commercial quantity” under s 71ACC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (DPCS Act) (“commercial quantity” of both pure heroin and in the form of a mixture with another substance, is defined in Schedule 11 as being 250 grams and 500 grams respectively). DMSB was not convicted of “trafficking in a drug or drugs of dependence – large commercial quantities” under s 71 of the DPCS Act (“large commercial quantity” of both pure heroin and in the form of a mixture with another substance, is defined in Schedule 11 as being 750 grams and 1 kilogram respectively).
There was no evidence that DMSB’s activities escalated to a level where he was in effect, the “dealer”. He did not lead a lavish lifestyle from such offending; and, in fact, constantly struggled to sustain even a basic or comfortable lifestyle. For some periods, he was homeless and living on the streets with other persons addicted to drugs. In later years, the Australian Red Cross came to his aid.
There was no evidence of contravention of regulations or misconduct by DMSB while he was in prison for three months in 2013 or during the last one year and three months while he was in immigration detention.
The Tribunal is satisfied that the primary purpose of DMSB’s offending was to fuel his drug addiction. This is not to downplay the seriousness of the offences for which he was convicted; in particular the offence of trafficking. Clearly, trafficking can harm others and significantly so, by potentially opening up an avenue of access that might not otherwise exist to proscribed and highly addictive drugs to members of the Australian community. However, the context of DMSB’s offending, based on the available evidence, indicated a degree of containment to his offending behaviour and was driven by the need to support his drug addiction. The degree of harm caused as a result of this type of trafficking was not as great as it would have been had DMSB been supplying or selling drugs to “first time” or “recreational/occasional” drug users. Sadly, the other people involved in the group were already regular drug users. Further, the quantities involved were at the bottom end of the scale and at a level only great enough to provide the members of this group with their daily fix (or to meet their needs for one or two days).
In February 2019, DMSB was examined by Dr Leon Turnbull, consultant forensic psychiatrist. As explained in more detail below, Dr Turnbull is eminently qualified to give expert evidence in this case. He was an impressive expert witness at the hearing and the Tribunal considered that his expert opinions were realistic, balanced and impartial.
Dr Turnbull diagnosed DMSB with having suffered post-traumatic stress disorder (PTSD). The PTSD arose when DMSB was living in Sudan between the ages of 15 until his late teens. During this time, DMSB became fearful after threats were made to him following a period of political activism that the Government may conscript him into the military (further detail is contained in the Confidential Schedule). DMSB was terrified about being sent to the front line if he was conscripted to fight in the war that was taking place with South Sudan. DMSB gave evidence this had happened to some of his peers and they had not returned. DMSB was also generally fearful at this time of being taken and detained against his will while in Sudan and tortured or killed, which he said had also occurred to some of his friends.
DMSB’s PTSD was left largely untreated giving rise to symptoms of anxiety, nightmares and flashbacks. The Tribunal also heard evidence to the effect that this was exacerbated or re-enlivened by the uncertainty of not knowing over the last two decades whether he would be sent back to Sudan.
Dr Turnbull considered that DMSB’s pattern of rapidly devolving to a state of dependence on a number of proscribed drugs was an indication that he also had a “biological predisposition” to drug addiction. After falling into drug addiction, DMSB isolated himself from his family until recently, driven by the deep shame he felt about having become a drug addict.
Dr Turnbull gave evidence that the PTSD suffered by DMSB was unlikely to resolve and the best that he could hope for was that there may be some reduction in symptoms over time. Dr Turnbull also acknowledged that DMSB’s biological disposition to drug addiction presented a further challenge to DMSB’s recovery. For this reason, Dr Turnbull recommended that DMSB’s rehabilitation involve his participation in a program which was based on “complete abstinence”. Dr Turnbull stated that the risk of DMSB reoffending would hinge exclusively on whether he relapsed upon being released into the community. Dr Turnbull also said if DMSB reoffended he would probably commit similar offences to those that he had committed in the past.
Dr Turnbull was asked by the Tribunal what he considered to be DMSB’s prospects of relapsing. Dr Turnbull rated those prospects as “low to medium”. Dr Turnbull indicated that if DMSB’s brother was unable to remain in Australia to support DMSB, this would shift his assessment to the “moderate end of the scale”.
Of particular note, Dr Turnbull considered that DMSB was an “ideal candidate” for making a recovery from his addiction by reason of the following:
(a)his brother’s willingness to support DMSB during his recovery;
(b)DMSB had made a “good start” by having been abstinent for one year and four months (albeit while on a methadone program that was made available at the detention centre);
(c)DMSB had accepted responsibility for his addiction and had not tried to blame others;
(d)DMSB appeared genuinely interested in and committed to undertaking rehabilitation programs; and
(e)DMSB appeared committed to attending Narcotic’s Anonymous (N.A.) (Dr Turnbull indicated that he had witnessed N.A. achieve some remarkable successes with its program with some people).
DMSB does not have a partner, nor does he have any children. Until recently, his parents and siblings have lived in other countries a long distance from Australia. DMSB said that he had previously abstained from taking heroin when he served a three-month prison term as referred to above. During this period, DMSB had access to a methadone program through the health services that were available at the prison. When DMSB was released, he relapsed. When this relapse occurred, DMSB did not have available to him any family support in Australia, nor did he have access to a rehabilitation program. At the time he was on a bridging visa, awaiting the outcome of his protection visa application.
One of DMSB’s younger brothers (Brother) received news about DMSB being placed into immigration detention in Australia. Brother was born in the English-speaking country referred to above and is a citizen of that country. Brother is a psychiatrist. Brother is divorced and has a young child who lives with Brother’s ex-wife and her parents in UAE. Brother is ten years younger than DMSB (in his mid-30’s).
When Brother first realised that DMSB was experiencing problems, he started searching for work opportunities in Australia that would facilitate Brother’s relocation to Australia to support DMSB. At the time, Brother was not sure if DMSB was psychotic or experiencing drug addiction. Brother suspected either of those possibilities because of “erratic” and sometimes, “paranoid” messages Brother had received from DMSB. Upon hearing that DMSB was in detention, Brother was able to locate DMSB and make contact with him.
Brother was offered a one-year contract at a hospital at a major regional centre in Queensland (the Hospital) working as a principal house officer in mental health (Registrar). He was granted a four-year “457 work visa” and moved to Australia in 2018. Brother was initially employed for one year. His contract was renewed. The second contract is due to expire in February 2020. Brother receives a salary from his work at the Hospital.[3] The stated hours of work per fortnight are 76.
[3] Stated on Brother’s contract (dated September 2018) to be in the vicinity of $100,000 to $120,000.
Brother has leased a two-bedroom apartment and is willing for DMSB to live with him in this apartment. DMSB stated that if he is not granted a visa, Brother will leave Australia as he has no other family based in Australia and he would have no reason to remain. Brother told the Tribunal he would not follow DMSB to Sudan if he was returned there, because the situation in Sudan was “dire” and it would be too dangerous for him to travel there.
Brother said if DMSB is released, he would be willing to financially support DMSB’s placement into a residential rehabilitation program to continue DMSB’s recovery from drug addiction. Brother said that he is prepared to fund DMSB’s participation in such a program with contributions from his other family members abroad, as discussed with them. At the hearing, Brother gave the names of two such programs he had identified as possibilities.
Brother said that DMSB’s parents had not been able to visit and support DMSB because they were unable to secure a visa to travel to Australia. DMSB’s parents are Sudanese citizens. They are both in their 70’s and have retired. Brother told the Tribunal that DMSB’s parents had previously applied for a visitor’s visa, but their application was unsuccessful. Brother told the Tribunal his parents remain living in the UAE on an annual visa sponsored by one of DMSB’s siblings. Brother said that he intends to sponsor his parents in the hope that they may be granted a visitor’s visa to visit Australia to provide additional support to DMSB during his rehabilitation. Witness statements from DMSB’s mother and father were lodged with the Tribunal, stating an intention by each of them to “take turns” travelling to Australia to provide addition care and support to DMSB.
Having closely considered the evidence and submissions made by both parties to this review, the Tribunal considers that DMSB does not past the character test under s 501(6) of the Act for the reasons outlined in detail below. This enlivens discretion of the Tribunal under s 501(1) of the Act to refuse to grant DMSB’s visa application.
In exercising this discretion, the Tribunal is required to take into account the mandatory primary and other considerations as set out in the Ministerial Direction issued under s 499 of the Act: i.e. Direction No. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 20 December 2018 (Direction no.79).
After taking into account the primary and other considerations set out in Direction no.79, the Tribunal considers that DMSB’s visa application should not be refused under s 501(1) of the Act. The Tribunal acknowledges that DMSB has committed serious offences and that he has done so on a repeated basis. However, the Tribunal notes that DMSB’s does not have a “substantial criminal record” as defined by s 501(7) of the Act, in that, DMSB was not sentenced to a term of imprisonment of longer than 12 months for his offences taken separately or together. The Tribunal notes that DMSB was tried summarily for offences that were indictable. When he was first convicted of trafficking offences, he received a short three-month term of imprisonment. The second time he was convicted of trafficking offences, the Magistrates’ Court decided it was not appropriate to sentence DMSB to a term of imprisonment. A Community Corrections Order was made instead, including a requirement that DMSB perform 100 hours of community work.
Those sentences do not suggest that the gravity of his offending was at the extreme end of the scale. The evidence relating to the circumstances of DMSB’s history of offending does not indicate there were any aggravating features or that he was introducing persons who were not already addicted to drugs to those substances. In those circumstances, the Tribunal considers that the likely harm caused by DMSB’s offending and his moral turpitude for the offending is at the low end of the scale. He was driven by his continuing addiction to highly addictive proscribed substances.
The Tribunal acknowledges Dr Turnbull’s realistic assessment that the degree of risk is not insignificant (i.e. “low to moderate”) that DMSB will relapse and reoffend again. If he relapses, he is likely to resume a similar pattern of criminal offending. The Tribunal considers that the Australian community’s expectations are that, objectively, someone with such a criminal history should not be granted a visa to remain in Australia.
However, this must be tempered with the community’s expectation that Australia will respect and observe the international treaties to which it is a party, and consequently is expected to meet its international refoulement obligations to a person who has been found to be at risk of significant harm if they are returned to their home country. The Tribunal considers that the Australian community would also consider that, given the presence of the protective factors that exist which did not exist previously (i.e. the support DMSB will obtain from Brother; access to a residential rehabilitation program and attendance at N.A.), that DMSB deserves to be given a chance to undergo personal reform. The Tribunal accepts DMSB’s evidence that he has realised he is no longer young, and that he is committed to reform as he has already wasted much of his life. He is remorseful for the crimes he had committed. Importantly, the opinion of the consultant psychiatrist was that DMSB is an “ideal candidate” to make that change if he is given the chance to do so. This weighs significantly in favour of providing DMSB with this chance.
Protection of the Australian community, which is a primary consideration, weighs in favour of refusal. However, this consideration must be weighed against the likely alternative, that if the Tribunal affirms the reviewable decision DMSB will be deported to Sudan. The legislation requires the Department to deport DMSB as soon as reasonably practicable. DMSB is likely to face interrogation upon his arrival at the airport in Sudan as outlined in country information discussed below. As soon as his identity becomes known, the Tribunal expects he will be detained and exposed to harsh treatment because of the political background and activism of DMSB and his family.
There is no evidence before the Tribunal to suggest that “alternative management options” are being considered for DMSB; or that the Minister is considering exercising his discretion under other provisions of the Act to permit DMSB to remain in Australia. The Tribunal concludes from this that DMSB would be deported if the reviewable decision is affirmed. The legal and practical consequences are extremely serious and Australia is liable to fall foul of its international treaty obligations if DMSB is deported to Sudan.
It is in those circumstances, and because of the matters set out in the Confidential Schedule indicating that DMSB is at great risk if he is deported to Sudan, that the Tribunal considers that Australian community expectations and the ‘other consideration’ of “international refoulement obligations” weighs heavily against not refusing the visa under s 501(1). The Tribunal considers that those two considerations outweigh the ‘primary considerations’ of “protection of the Australian community from criminal and other serious conduct”. For this reason, the Tribunal concludes that the discretion enlivened under s 501(1) of the Act should be exercised not to refuse DMSB’s visa application.
Accordingly, the Tribunal sets aside the reviewable decision and in substitution decides that DMSB’s visa application not be refused under s 501(1) of the Act.
Having provided a summary of the Tribunal’s decision, further detailed consideration of the matters required to be taken into account under Direction no.79 is set out below.
ISSUES
The issues to be determined by the Tribunal, namely:
(a)whether DMSB passes the character test as defined by s 501(6); and
(b)if not, whether discretion should be exercised to refuse DMSB’s visa application under s 501(1) of the Act.
RELEVANT LAW
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test as defined by s 501(6).
Section 501(6) of the Act provides that a person does not pass the character test if one of a number of circumstances apply to the person, as prescribed in subsections (a) to (h) of this provision. The subsections which are potentially relevant in this case are subsections (c) and (d)(i) which provide as follows:
(6) For the purposes of this section, the person does not pass the character test if:
…
(c) having regard to either or both of the following:
(i) the person’s past or present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
…
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
…
A person affected by a decision under s 501(1) of the Act to refuse to grant a visa may file an application for review with the Tribunal under s 500(1)(b) of the Act.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions. On 20 December 2018 the Minister issued Direction no.79 under s 499(1), which came into effect on 28 February 2019.
Direction no.79
Part 6 of Direction no.79 provides a preamble. Paragraph 6.1(1) of Direction no.79 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. General guidance is provided in paragraph 6.2 as follows:
(1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding…whether to refuse…a non-citizen’s visa under s 501(1)… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and B…
A set of overarching principles are established in paragraph 6.3 as follows (as relevant):
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 requires the Tribunal in deciding whether to refuse to grant a visa to take into account the primary and other considerations set out in Part B, as relevant to each individual case, and also that:
(a)“Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of the visa, whereas a visa applicant should have no expectation that a visa application will be approved”;
(b)the Tribunal should give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations;
(c)primary considerations should generally be given greater weight than the other considerations; and
(d)one or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Issue 1: does DMSB pass the character test as defined by section 501(6) of the Act?
The Tribunal is to proceed by considering whether any of the subsections in s 501(6) apply to DMSB.[4] The Tribunal considers that subsection (c) is also potentially relevant. The Minister contended that subsection (d)(i) applied. The Tribunal will consider each of those subsections in turn.
[4] Refer Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10 (Godley)
Does s 501(6)(c) apply to DMSB?
Section 501(6)(c) will apply where the Tribunal is satisfied having regard to either or both of a visa applicant’s past and present criminal conduct and/or past and present general conduct that he or she is not of good character.
Ministerial guidance about this subsection is provided in Annexure A of Direction no.79 as follows:
5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))
…
(2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3)In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character.
a)In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’
(4)In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘a good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
a)In Godley, Lee J went on to say ‘For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’.
‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
5.1Past and present criminal conduct
(1)In considering whether a person is not of good character on the basis of past and present criminal conduct, the following factors are to be considered:
a)The nature and severity of the criminal conduct;
b)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
c) The cumulative effect of repeated offending;
d)Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and
e)The conduct of the person since their most recent offence, including:
i.The length of time since the person last engaged in criminal conduct;
ii.Any evidence of recidivism or continuing associate with criminals;
iii. Any pattern of similar criminal conduct;
iv.Any pattern of continued or blatant disregard or contempt for the law; and
v. Any conduct which may indicate character reform.
5.2 Past and present general conduct
(1)The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.
a)In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
(2)The following factors may also be considered in determining whether a person is not of good character:
a)Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
i.Involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
…
The Tribunal is satisfied that DMSB is not of good character because of his past and present criminal and his general conduct. The Tribunal considers that it need go no further than the conduct engaged in by DMSB in the form of trafficking of proscribed and highly addictive drugs. This type of conduct, regardless of the precise circumstances and context of the trafficking, is expressly identified in paragraph 5.2(2)(a)(i) of Annexure A to Direction no.79, as being an activity that indicates a contempt or disregard for the law and has the potential to cause harm to members of the Australian community.
DMSB was convicted of offences arising from trafficking as recently as 2013 and 2015. Subsequently, he was convicted of possessing heroin and methylamphetamine in 2018. Associated with this were a number of offences committed by DMSB, which represents further disregard for the Australian law, such as contravening corrective services orders and failing to appear in court and by doing so, breaching bail conditions. DMSB offended on a repeated basis between about 2010 and 2017.
The Tribunal concludes that s 501(6)(c) of the Act applies to DMSB.
Does s 501(6)(d)(i) apply to DMSB?
Section 501(6)(d)(i) will apply where the Tribunal is satisfied:
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia…
Ministerial guidance about this subsection is provided in Annexure A to Direction no.79 as follows:
6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct are discussed below.
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Section 501(6)(d)(i) was judicially considered by the Federal Court of Australia in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 (Sabharwal). Quoting from the High Court of Australia decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Kerr J in Sabharwal held as follows:
[79]Section 501(6)(d)(i) relevantly provides that the Applicant fails the character test if there is “a risk that [he] would engage in criminal conduct in Australia”.
[80]The text of s 501 read in its statutory context, properly construed, defines the boundary of the power lawfully available to the Minister. The Minister, having regard to the known circumstances, must evaluate the risk of a person engaging in the future in criminal conduct in Australia.
[81]In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574-575):
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
[82]Their Honours’ observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.
[83]Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the “intention” of the provision was that “the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[84]Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is “likely” to occur plainly would be within its terms.
The evidence was uncontroversial that DMSB’s risk of reoffending hinged exclusively on whether he relapses upon being released from immigration detention. The Tribunal accepts the evidence given by Dr Turnbull that there is a “low to moderate” risk that DMSB will relapse; and that if he relapses he is likely to reoffend in a similar way that he had offended in the past. There was no other evidence that would support a finding that the risk of DMSB reoffending was minimal or remote. For these reasons, the Tribunal concludes that there is a risk that DMSB will engage in criminal conduct if he is allowed to remain in Australia.
The Tribunal concludes that s 501(6)(d)(i) of the Act applies to DMSB.
DMSB does not pass the character test
Accordingly, the Tribunal concludes that DMSB does not pass the character test under s 501(6) of the Act on the basis that s 501(6)(c) applies to him and separately, on the basis that s 501(6)(d)(i) applies to him.
Issue 2: exercise of discretion under s 501(1)
The Tribunal’s conclusion that DMSB does not pass the character test under s 501(6) enlivens its discretion to refuse DMSB’s visa application under s 501(1) of the Act. In exercising this discretion, the Tribunal must do so in accordance with Direction no.79, by taking into account prescribed ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Paragraph 11 of Direction no.79 sets out three ‘primary considerations’ the Tribunal must take into account, as follows:
(1)In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Protection of the Australian community
Paragraph 11.1 of Direction no.79 addresses the concept of the ‘primary consideration’ of “protection of the Australian community from criminal or other serious conduct”:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.
The stated focus of this paragraph is to protect the Australian community from “harm as a result of criminal activity or other serious conduct”. The reference to “harm” is not qualified in Direction no.79. The Tribunal considers that “harm” includes harm directed to individual persons within the community and also harm to the community in the broad sense, such as including any drain on the resources of the community in paying for enforcement activities, court processes or to support efforts to rehabilitate a person.
The Tribunal notes that Direction no.79 specifies that “low tolerance” should be afforded to visa applicants who have previously engaged in criminal or other serious conduct. DMSB falls into this category having offended repeatedly from about 2010 to 2017. For this reason, DMSB should be afforded a low degree of tolerance when the Tribunal is taking into account this primary consideration. It is also noted that that this case involves a non-citizen who does not presently hold a substantive visa, as distinct from a “cancellation case”. In that regard, DMSB should not hold any expectation that he should be permitted to remain in Australia, as explained in paragraph 6.3(6) of Direction no.79.
Direction no.79 requires the Tribunal to take into account the two factors set out in paragraph 11.1(1)(a) and (b). Dealing with each in turn:
The nature and seriousness of the conduct to date
Paragraph 11.1.1 of Direction no.79 provides, relevantly, as follows:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, the decision-maker must have regard to:
a. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b. …;
c. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d. …
e. The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f. …the sentence imposed by the courts for a crime or crimes;
g. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h. The cumulative effect of repeated offending;
…
The evidence before the Tribunal confirming DMSB’s criminal convictions comprised a National Police Certificate issued by the Australian Federal Police for DMSB on 6 March 2018.[5]
[5] Refer G-Documents G7.
On 26 August 2013 DMSB received an aggregate sentence of three month’s imprisonment for the offences of “traffic heroin” committed on 28 November 2012; “possess cannabis” committed on 13 January 2012; “possess methylamphetamine” committed on 18 November 2011; “deal property suspected proceed of crime” (committed on 28 November 2012); “fail to answer Bail Granted (9 charges)” committed on 16 May 2011, 27 October 2011, twice on 17 April 2012, 30 July 2012, 16 November 2012, 20 February 2013, 26 April 2013 and 5 June 2013); “shop theft – less than $600” committed on 13 March 2010; “traffick heroin (2 charges)” committed on 29 July 2013 and 30 July 2013, and “possess dangerous article in public plce” committed on 6 August 2013.
On 25 May 2014 DMSB was fined, with conviction, an aggregate of $200 for the offence of “possess dangerous article in public plce” and the offences of “Fail to answer Bail Granted (2 charges)”.
On 16 September 2015 DMSB received a community correction order for 12 months and ordered to perform 100 hours of unpaid community work for the offences of “Traffick heroin (2 charges)”; “commit indictable offence whilst on bail” and “fail to answer Bail Granted (3 charges)”; “possess cannabis”; “possess heroin” and “go equipped to steal/cheat”.
On 15 December 2017 the offence of “contravene community correction order” was recorded as “proven”.
On 3 January 2018 DMSB received a community correction order for 12 months for the offences of “theft from motor vehicle”; “handle/receive/retention stolen goods (2 charges) att.”; “To obtain property by deception (4 charges)”; “fail to answer Bail Granted (4 charges)”; “commit indictable offence whilst on Bail Granted (2 charges)”; “possess methylamphetamine (2 charges)” and “possess heroin”.
Paragraph 11.1.1(1)(a) does not apply, as the offending conduct for which DMSB was committed was not violent or sexual in nature. DMSB was convicted of being in possession of a dangerous article in a public place. When DMSB was asked about this, his evidence was that he was carrying a Stanley knife and a hammer in his backpack. DMSB said that he was using those tools to create stencils for stenciling the numbers of houses onto the pavement. There was no evidence that DMSB had ever used or intended to use those tools in an act of violence. No evidence was produced by the Minister to contradict the reason provided by DMSB as to why he was in possession of those items.
Paragraph 11.1.1(1)(c) does not apply as the offending conduct for which DMSB was committed was not targeted at vulnerable persons. When he committed the trafficking offences, the undisputed evidence was that he did so in the company of other regular drug users.
Paragraphs 11.1.1(1)(e) applies because the Tribunal is satisfied that the offences committed by DMSB form the basis for a finding that he does not pass a subjective limb of the character test or is not of good character under section 501(6)(c). For this reason, the offences committed by DMSB are considered to be serious.
Regarding 11.1.1(1)(f), DMSB was sentenced to a term of imprisonment for the trafficking offence. The imposition of a prison sentence indicates that the offending conduct should be viewed as serious, as prison terms are the highest level of punishment in the sentencing hierarchy. However, the short duration of the imprisonment term, i.e. three separate terms of three months, relative to the maximum prison term that applied to the offence of trafficking, would suggest that DMSB’s conduct should be regarded as falling at the less severe end of the range of serious criminal offending.
Regarding 11.1.1(1)(g) and (f), the cumulative effect of repeated offending by DMSB increases the seriousness of his criminal conduct. However, the Tribunal notes that the type of offending has not escalated as the years have passed. The severity of offending has remained much the same. The Tribunal notes that DMSB’s more recent offences of trafficking did not attract any term of imprisonment. This may suggest that the more recent offending was less serious than the earlier offending by DMSB, or it may simply reflect differing views held by the Magistrates who handed down those respective sentences. Either way, there was no escalation in the degree of sentences DMSB received for his offending conduct.
On balance, the Tribunal considers that DMSB has engaged in criminal conduct over an extended period that is appropriately characterised as serious. However, DMSB’s criminal conduct does not fall at the extreme end of the scale, as reflected by the relatively light sentences attached to his offences and the fact that they were tried summarily. Importantly, those crimes were not targeted at other individuals in the community. The Tribunal is satisfied that the offences were committed by DMSB to fuel his drug addiction and his offences of failing to answer bail or to comply with court-based correction orders resulted from DMSB’s dysfunctional condition because he was constantly in a drugged state.
Risk to the Australian community should DMSB commit further offences or engage in other serious conduct
Paragraph 11.1.2 of Direction no.79 provides that:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authorative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
The opening words of paragraph 11.1.2(1) indicate that the Tribunal must consider whether DMSB represents “an unacceptable risk of harm to individuals, groups or institutions in the Australian community”. In doing so, it must consider the likelihood that DMSB will engage in further criminal or other serious conduct, and the nature of the harm likely to be caused if he were to do so.
Evidence by Dr Turnbull, occupational and forensic psychiatrist
As mentioned above, Dr Turnbull was called by DMSB to give expert evidence in this application. Dr Turnbull is a qualified clinical psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists. Dr Turnbull is a consultant psychiatrist working in private clinical and medico-legal practice. He is an Honorary Fellow of the University of Melbourne and Monash University. He holds a medical degree from Monash University and Master’s degrees in psychiatry and health and medical law from the University of Melbourne.
Dr Turnbull provided the following report in respect of DMSB:
[DMSB] described symptoms consistent with a post-traumatic stress disorder. There are frequent nightmares specifically related to events in Sudan, there are less frequent and intense flashbacks, again related to Sudan, and there is a pervading hypervigilance to a potential for him to be deported back. Psychological unrest is accompanied by physical tension.
His mood state is generally low in the context of worrying about deportation. He finds it difficult to sleep. Energy and appetite are largely unaffected.
Literacy and numeracy were not obviously eroded, and, while there are some memory deficits associated with being substance affected or times of withdrawal, overall, it was my impression that this man enjoys fairly healthy intellectual functioning.
…
It is my clinical impression that this man has developed a post-traumatic stress disorder specifically in response to what occurred mostly during his teenage years in Sudan, and that condition has been exacerbated, if not aggravated, by the potential of deportation back to Sudan.
The onset of his psychiatric condition was in a milder form than which it currently exists. Throughout the course of the man’s offending, it is my view then, that he did suffer a post-traumatic stress disorder, albeit as a milder version of what it is at the day of assessment.
Dr Turnbull stated that he thought there had been a worsening of DMSB’s mental health situation since the incidents that related to the offending, as the prospect of him being deported fed directly into the content of his post-traumatic nightmares, flashbacks and fears.[6] Dr Turnbull stated:
…
I think the most likely scenario is this man’s post-traumatic stress disorder will remain much the same, albeit if the prospect of deportation is removed, then that will have a meaningful beneficial impact, as his most pertinent post-traumatic fear is a return to the source of the initial triggering incidents itself. However, the usual pathway with people with such backgrounds and the development of symptoms, is that they live with those symptoms indefinitely, albeit they can achieve mild to modest reductions with the assistance of formal therapy. It is unusual for a complete conglomerate of symptoms to be completely removed with therapy.
[6] Refer page 9 of Dr Turnbull’s Report.
Dr Turnbull recommended that DMSB’s psychotropic medications be reviewed “as they were not well thought out”. Dr Turnbull stated DMSB should be considered for a medication such as Prazosin because his current medication, Quetiapine “is going to do little for his nightmares”.
Dr Turnbull considered that the risk of DMSB engaging in criminal conduct hinged “almost exclusively” on whether he relapsed into using illicit drugs.[7] Dr Turnbull noted that DMSB’s past offending had not spread beyond “that of an addict whose offending is motivated by almost the sole purpose of acquiring more drugs”. Dr Turnbull noted that DMSB criminal offending had not escalated over time, nor did it involve any armed robbery or theft of a motor vehicle which “would require more gumption”. Dr Turnbull gave evidence at the hearing that it did not seem to him that DMSB was “criminally inclined”. Dr Turnbull said he had no reason to anticipate a drift by DMSB towards violent offences and if he relapsed, he would probably engage in a similar type of circumscribed offending.
[7] Refer page 9 of Dr Turnbull’s Report.
Dr Turnbull stated that DMSB’s past drug use was not solely the result of his past experiences in Sudan. They also arose from DMSB’s “propensity towards addiction, no matter the substance”. Dr Turnbull stated:
…The reason I say this is because his post-traumatic symptoms are not likely to ever fully go away, and if he is being told by professionals that his drug use is a way of self-medicalisation, then he is being set up for failure by the professionals. I am not saying that his experiences of Sudan and his post-traumatic stress disorder symptoms are unimportant, but on a day-to-day level, this man needs to put those factors aside, and concentrate simply on not picking up, and doing that every day, indefinitely.
Having spoken to him clinically, it is my impression that he is welcoming of such ideas, he offers no resistance, he provided no excuses or flimsy alternative explanations, and it is my conclusion that he has the capacity to maintain a life divorced from illicit drugs. As a psychiatrist, it is almost impossible to predict whether he will carry that through. At the date of assessment, I note he had lasted 12 months, and that is a strong beginning. Thus, if he continues that pattern, goes on to develop a further understanding of addiction and a health respect for its danger of resurfacing, then he has the ability to maintain abstinence and live a life free of offending.
Dr Turnbull stated that during his examination of DMSB, DMSB had identified challenges he would face, if he was released, including the form of accommodation, day-to-day tasks, employment and education. DMSB also identified that he would need to be more embracing of the supports around him. Dr Turnbull stated that DMSB had a realistic appreciation of reintegration into the Australian community, which Dr Turnbull did not commonly see in assessing those facing deportation or in detention.[8]
[8] Refer page 11 of Dr Turnbull’s Report.
Dr Turnbull stated that further to the medication review referred to above, for DMSB to minimise the risk of reoffending he should consider a formal rehabilitation program; a 12-step program such as Narcotics Anonymous; reduce the methadone and Panadeine Forte (“with the prescribers”); and shift gradually toward “education and employment” to provide him with a purpose.[9]
[9] Refer page 11 of Dr Turnbull’s Report.
Dr Turnbull gave evidence at the hearing that he considered that despite DMSB’s psychological conditions, he remained a “functional being” and demonstrated a “capacity to study and a capacity to look after himself”. Dr Turnbull said that his PTSD was at the level of “mild to moderate” and was not “crippling” or “severe”. Dr Turnbull stated that DMSB being in detention was “not helping” his PTSD.
Dr Turnbull elaborated on why he considered DMSB to be an “ideal candidate” for rehabilitation to break his addiction. He said that DMSB had been abstinent in the last year and four months, he was motivated, he was not heavily medicated, he was reflective and did not try to shift responsibility to anyone else, and he was embracing ideas about what he needed to do to break the addiction. Dr Turnbull said the results are variable about whether a person is able to rehabilitate successfully, however, upon examining DMSB he considered him to be a “strong candidate”.
Evidence by Dr Tram Nguyen, consultant psychiatrist
Dr Nguyen is a consultant psychiatrist at a number of hospitals and health services. He holds a Bachelor of Medicine and Bachelor of Surgery (2001), Bachelor of Medical Science (2001), Master of Psychiatry (2006) and is a fellow of the Fellowship of the Royal Australasian and New Zealand College of Psychiatrists (2009). Dr Nguyen was not called to give evidence at the hearing of this application. However, a report dated 29 May 2018 by Dr Nguyen in respect of DMSB was lodged with the Tribunal.[10]
[10] Refer G-Documents G11, 105-110.
Dr Nguyen summarised his opinion and prognosis in relation to DMSB as follows:
My impression is that [DMSB] has a diagnosis of Major Depressive Disorder and Substance Abuse Disorder, which dates back many years and can be understood as a response to his experiences of trauma in Sudan, and his fear of getting a negative outcome regarding his RSD and being deported back to Sudan. By definition, [DMSB] has a dual diagnosis of mental health and substance use disorders, which has inherently increased complexity for both assessment and treatment. The current medication regime appears to be effective in ameliorating his symptoms.[11]
Cognitively, [DMBS] has had multiple assaults to his brain, in terms of repeated overdoses with loss of consciousness. He had memory deficits specifically with regards to chronology, time frames and dates. [DMBS] is an educated intelligent man, and therefore the cognitively(sic) screening administered was unable to detect whether there were any subtle deficits due to the overdoses and “black outs”. A full characterization of his cognitive deficits would require extensive neuropsychological testing.
[DMSB] was pre-morbidly a high functioning and intelligent man, who has been severely affected by trauma and now the fear of having to return to the place of trauma. If he were to be granted permanent residency, my impression is that his mental health would significantly improve and he would be able to contribute positively to society. This would obviously require ongoing treatment, in particular a trauma-focussed approach, and specialised treatment for him substance use disorder.
[11] Dr Nguyen noted in his report that DMSB was receiving methadone (opioid substitution) therapy and was taking Mirtazapine 45mg (anti-depressant and anti-anxiety medication) – refer G-Documents G11/108.
The Tribunal relies predominately on the medical evidence given by Dr Turnbull. At the end of Dr Nguyen’s report he strayed from providing medical evidence about DMSB and instead, advocated for him in relation to the reasons why he should not be deported. Unfortunately, the Tribunal lost confidence that Dr Nguyen had reached his views on an impartial and objective basis; and for this reason the Tribunal has given Dr Nguyen’s little weight.
The Tribunal prefers to rely upon the medical evidence given by Dr Turnbull. The Tribunal notes Dr Turnbull’s evidence was largely consistent with the views expressed by Dr Nguyen, although Dr Turnbull did not agree with Dr Nguyen’s diagnosis that DMSB had a Major Depressive Disorder. Dr Turnbull said that his observations of DMSB during examination were not consistent with such a diagnosis. The Tribunal accepts Dr Turnbull’s evidence in this regard and finds that the primary mental health condition that DMSB was suffering from, as diagnosed by Dr Turnbull, is PTSD.
DMSB contended that the Tribunal should turn its mind to DMSB’s character more generally and the extent to which the Tribunal can safely accept DMSB’s assurances of future conduct. DMSB certainly expressed sorrow and remorse, and he took responsibility for his conduct. It was contended that DMSB deeply regretted his criminal conduct. He invited the Tribunal to take into account the mitigating explanation for the conduct.
DMSB contended that the risk that was minimal or remote that he would engage in criminal conduct in the future.[12] He contended that the past offending had hinged on his drug addiction. DMSB assured the Tribunal that he was committed to rehabilitation to prevent a relapse, which in turn would prevent any reoffending in the future. DMSB said he would be able to live with Brother and that Brother will be able to support him through his rehabilitation. He also said he would undertake a residential rehabilitation program and attend N.A.
[12] Refer [27] of DMSB’s SFIC.
The Minister, on the other hand, invited the Tribunal to accept the evidence of Dr Turnbull that there was a “low to moderate” risk of DMSB relapsing and therefore, reoffending in a way that he had offended in the past. The Tribunal accepts this evidence and finds that the risk of DMSB reoffending in the way he has in the past is “low to moderate”.
Nature of harm
In the event that DMSB were to reoffend, the Tribunal considers any resulting harm is likely to be limited to low-level trafficking, in the manner described by DMSB among fellow drug users and undertaken to reduce the cost to them individually of buying proscribed drugs. The harm is also likely to include the cost to the Australian community of any further petty crimes he may commit (such as using a stolen credit card as he has done previously) or supporting DMSB on social security benefits if he is unable to work as a result of the effects of drug-taking and also the cost of enforcement activities in response to his criminal offending and any support provided in an attempt to rehabilitate DMSB.
Likelihood of re-offending
The Tribunal accepts that there are protective factors in place for DMSB which are likely to minimise the risk that he will relapse and in turn, reoffend. Those factors include the support he will receive from Brother, his intended participation in a residential rehabilitation program or through his regular attendance at N.A. DMSB will also be acutely aware of the serious repercussions he can expect to face, being the cancellation of any visa that may be granted to him, should he be caught reoffending in any way in the future. DMSB should be under no misapprehension that this is his final chance to reform himself if he wants to stay living in Australia.
The risk of DMSB reoffending will also be minimised should he succeed in securing either voluntary or paid full time or part time employment, as he intends to do and with which Brother gave evidence he is able to assist him to facilitate this once DMSB’s rehabilitation program is complete. DMSB also plans to engage further study which if he does so, will give him a sense of purpose. The risk will also be lessened if DMSB continues to receive effective treatment of for his psychological condition.
However, the Tribunal is realistic about the challenges that DMSB will face and finds that there is a risk that DMSB will reoffend.
Accordingly, the Tribunal concludes that this primary consideration of “protection of the Australian community” weighs in favour of the refusal of DMSB’s visa application.
Best interests of minor children in Australia affected by the decision
Paragraph 11.2(1) of Direction no.79 requires that the Tribunal make a determination about whether refusal is, or is not, in the best interests of minor children in Australia affected by the decision. There are no minor children in DMSB’s life present in Australia who would be affected if DMSB was deported. This consideration is irrelevant.
Expectations of the Australian Community
Paragraph 11.3(1) of Direction no.79 requires the Tribunal to take into account the following:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Federal Court considered the notion of expectations of the Australian community in the context of paragraph 13.3(1) of Direction no.65 in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466. In that decision, Mortimer J observed:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
When a person, such as DMSB, has a significant criminal history of repeated offences which demonstrates persistent contravention of Australian laws and which include offences of trafficking proscribed drugs including heroin and methylamphetamine, the Tribunal considers that objectively, the Australian community may expect that DMSB should be refused a visa. The Tribunal has, after all, found that the offences for which DMSB was convicted are serious. The Tribunal considers that the Australian community would also be concerned about the cost to the community of policing and enforcing the law when contravened by DMSB including to fund criminal prosecution of DMSB for those offences and to fund subsequent corrective and supervisory programs.
However, the Tribunal considers that the Australian community is likely to have some degree of understanding about DMSB’s situation given that his offending has stemmed his struggle with drug addiction arising in part from untreated mental health conditions that he has suffered from for a long time, and compounded by the uncertainty of not knowing whether he would be deported to Sudan while his visa application has been processed over the last 20 years.
DMSB did not offend before he commenced using heroin in 2008 – his first offence was not until 2010. The Tribunal accepts Brother’s evidence that DMSB history of criminal offending was completely out of character with respect to DMSB’s conduct as a child and young adult, prior to his arrival in Australia. Dr Turnbull did not assess DMSB as being “criminally inclined”. DMSB’s record while in detention over the last one year and four months, during a period where he has been able to receive treatment for his mental health condition and drug addiction has been unblemished.
The Tribunal also notes the following observations of Deputy President Rayment in BHKM and Minister for Immigration and Border Protection [2018] AATA 3 (BHKM), when taking into account this primary consideration in a similar case:
[36] It is conceded by the respondent that the probable effect of affirming the decision under review is that the applicant would be forcibly returned to the Philippines, conduct which would involve a breach by this country of its international obligations under the Refugees Convention. That fact is likely significantly to affect community expectations in my opinion. It would be a matter of real concern if the community learned that Australia had knowingly or deliberately breached its treaty obligations. Such conduct would be regarded as contrary to the best interests of Australia. It would be thought to be likely to cause harm to Australia’s international reputation.
[37] If, as I have been informed the by the respondent, government policy remains that Australia will not refoule non-citizens in breach of its treaty obligations, then a result involving the affirming of the reviewable decision in this case would be all the harder for the community to accept. The government policy of which I have been informed would be regarded as obviously right by this community.
…
Those same considerations apply in DMSB’s case. This is likely to influence the Australian community’s expectations in favour of granting DMSB a visa where not to do so would expose him to the risk of serious injury or death upon deportation to Sudan. In light of the circumscribed nature of DMSB’s offending; the likely cause of the offending being connected to his drug addiction arising from diagnosed mental health conditions; the fact that DMSB has made a positive start on the path to rehabilitation; and that existence now of protective factors to support his rehabilitation which were not present previously; the Tribunal is satisfied that the Australian community’s expectations are likely to be tipped in favour of the reviewable decision being set aside and DMSB’s not be refused under s 501(1) of the Act, despite the objectively serious nature of his previous criminal offending.
OTHER CONSIDERATIONS
Paragraph 12(1) of Direction no.79 set out four “other considerations” that the Tribunal must take into account as follows:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
e) Impact on Australian business interests.
International non-refoulement obligations
The Tribunal is required to consider international non-refoulement obligations. The remaining three ‘other considerations’ have limited or no relevance in this application.
Paragraph 12.1 provides as follows:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa application being cancelled is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application was refused, they would face the prospect of indefinite immigration detention.
The conventions referred to in Direction no.79 are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality.
Consistent with the Full Federal Court of Australia decision in BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96, where a person affected by a refusal to grant a visa claims, as a reason in favour of setting aside the refusal, that they have a fear of harm in his or her country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country.[13]
[13] This approach was endorsed by Kenny J recently in FKP15 v Minister for Immigration and Border Protection [2017] FCA 1555 at [34] and [35].
In this case, as mentioned above at paragraph [8], the then RRT found that Australia owes protection obligations to DMSB. As mentioned in paragraph [12] and [13], the Tribunal considers that this continues to be the case.
The Tribunal notes that DFAT has published the following information about Sudan on its website:[14]
…
Sudan is recovering from a series of civil wars with severe consequences for the population and the economy. In the Darfur region, the African Union/United Nations Hybrid operation in Darfur (UNAMID) was established in 2007 to protect civilians and mediate conflict. Following years of fighting and then a referendum, South Sudan became an independent country on 9 July 2011. The UN Interim Security Force for Abyei (UNISFA) was established in June 2011 to monitor and demilitarise the disputed border region of Abyei, between Sudan and South Sudan, as well as to facilitate the delivery of humanitarian aid. Sudan is hosting over 700,000 South Sudanese refugees as well as refugees from other regional countries.
In recognition of Sudan’s efforts to maintain a reduction of hostilities, improve humanitarian access throughout Sudan, and improve its cooperation with the US on regional conflicts and countering terrorism, the US lifted most of its long-standing sanctions on Sudan in October 2017. However, Sudan remains subject to United Nations Security Council (UNSC) sanctions (arms embargo, travel ban, asset freeze).
…
[14] Refer Exhibit “HD3” -
Further to the matters set out in the Confidential Schedule, the Tribunal notes that Sudan remains volatile and would expose DMSB to a risk of significant harm if he was returned to live there. Recent travel advice issued by the Department of Foreign Affairs and Trade (DFAT) reports (as at 4 March 2019) as follows:[15]
Since 19 December 2018, sporadic protests have led to a state of emergency and curfews being imposed in several towns and cities across Sudan. You should avoid protests or large gatherings, observe local curfews and follow the instructions of the relevant authorities. If travelling outside Khartoum, seek information on the situation in the areas you will be travelling to or passing through before departing. Remain vigilant and monitor the media for information on developments which may affect your safety and security. The level of our advice has not changed. Reconsider your need to travel to Sudan overall. Higher levels apply in some parts of the country.
…
·Reconsider you need to travel to Sudan due to the possibility of violent civil unrest and the threat of terrorist attack.
·Do not travel to Northern, Southern or Western Darfur, the Abyei region, Northern or Southern Kordufan, Blue or White Nile states, Sennar state, or areas within 15 kilometres of the border with Eritrea and Ethiopia due to the possibility of armed conflict, threats of terrorist attack and kidnapping, and high levels of violent crime.
·…
[15] Refer Exhibit “HD2”.
The Tribunal has also taken into account certain information about Sudan extracted from the Sudan Country Report issued by DFAT on 27 April 2016:[16]
[16] Refer Exhibit “HD1”.
Security Situation
2.32Conflict continues in Darfur as well as South Kordofan and Blue Nile (often referred to as the ‘Two Areas’). The contested region of Abyei is relatively stable, due to the internal preoccupations of both Sudan and South Sudan and successful interventions by the UN Interim Security Force for Abyei. While other areas of Sudan have historically experienced instability, DFAT assesses that the current situation outside of conflict-affected areas (including Khartoum) is relatively stable. This is despite general lawlessness and possible violence throughout Sudan, likely attributable to the proliferation of weapons and the deteriorating humanitarian situation, including increased food insecurity. A further complicating factor is the current conflict with South Sudan, which has resulted in over 220,000 South Sudanese fleeing to safety in Sudan, including eastern areas of Dafur.
…
Political Opinion (Actual or Imputed)
…
3.35Despite the provisions included in the 2005 Interim National Constitution, Sudan’s political landscape restricts opportunities for individuals to express their opinions, particularly if this expression is deemed to threaten the authority of the State. The US Department of State’s 2015 Human Rights Report states that the Government maintains significant Control over the activities of that opposition, including through the Political Parties Advisory Council (see 2.27)…
Unarmed Opposition
3.37The main unarmed opposition include the Democratic Unionist Party …
…
3.39Some unarmed opposition parties and figures have face(sic) discrimination at the hands of the Government, including detention and torture. Members of the unarmed opposition have also been prevented from traveling outside Sudan…
3.40 DFAT contacts suggest that being a high-profile individual involved with the unarmed opposition may provide some protection from violence at the hands of Government. However, there are examples of individuals linked with the unarmed opposition experiencing violence. Sandra Kadoda, a member of the Sudanese Communist Party when missing in April 2015 with her family accusing the NISS[17] of detaining her. The NISS denied that they had detained her. Kadoda was subsequently found badly beaten and made a public apology for the accusations directed at the NISS.
[17] NISS – National Intelligence and Security Services.
3.41Overall, DFAT assesses that low-profile members of the unarmed opposition are at a low risk of official discrimination and violence. Supporters of the unarmed opposition who present a direct threat to the Government’s authority by speaking openly about political transition or overthrowing Bashir and the NCP face a moderate risk of discrimination and low risk of violence.
…
Arbitrary Deprivation of Life
Extra-Judicial Killings
4.1 Reports to the UN Security Council indicate that the authorities have been responsible for extra-judicial killings, including as recently as 2015…
4.2While it is difficult to obtain accurate data on such killings in Sudan, DFAT assesses that extra-judicial killings are continuing to occur, particularly in conflict-affected areas. Reports suggest that extra-judicial killings are often indiscriminate, and exist due to the pervasive culture of impunity that protects the authorities.
Enforced or Involuntary Disappearances
4.3Both the Government and the armed opposition have been responsible for the disappearance of civilians in both conflict-affected areas and non conflict-affected areas. According to the Government of Sudan, the NISS maintains offices in order to receive enquiries about missing or detained individuals, but DFAT understands that these enquiries often go unanswered.
4.4In 2014, the Human Rights Council’s Working Group of Enforced or Involuntary Disappearances reported at least 173 outstanding cases of enforced or involuntary disappearances, all of which remain active and of concern to the Working Group…
4.5DFAT assesses that abductions and enforced disappearances by both the Government and armed opposition remain possible for individuals who are perceived threaten the authority of the Government or armed opposition.
Torture
…
4.11Former detainees have reported physical and psychological torture by authorities, including prolonged isolation, exposure to extreme temperature variations, electric shock, use of stress positions and, in the case of female detainees, harassment and sexual assault.
…
4.13DFAT assesses that those who are perceived to directly threaten the authority of the Government may face risk of torture. This is likely to affect those who are outspoken. DFAT is also aware of some examples of civilians who are not outspoken being exposed to torture. DFAT is unable to prescribe a particular risk to an individual’s potential to experience torture or comment on the general incidence of torture.
…
Arbitrary Arrest and Detention
…
4.15The NISS and other arms of the Sudanese security apparatus continue to arbitrarily arrest and detain individuals, particularly political opponents and activists…
4.16Overall, DFAT assesses that arbitrary arrest and detention are commonly used by the Government, particularly against individuals that are or are perceived to be outspokenly critical of the Government.
…
Treatment of Returnees
Exit and Entry Procedures
5.35The NISS has a significant presence at Khartoum International Airport and reviews the documentation of all individuals exiting or entering Sudan.
5.36Individuals are required to obtain an ‘Exit Visa’ in order to leave the country. This requirement has been used to restrict the travel of some high-profile individuals, especially those who were of political or security interest. DFAT understands that if a failed asylum seeker who did not obtain an Exit Visa prior to leaving Sudan was to be returned, they would likely be questioned by the NISS. If an individual was on interest to the Government they would likely be questioned by the NISS in detail, including potentially being taken to NISS Headquarters for further questioning.
…
Conditions for Returnees
5.38DFAT is not aware of any evidence that suggests an asylum seeker returning to Sudan would be distinguishable to the broader community or susceptible to any form of discrimination or violence, unless they presented a threat to the Government. In reality, this is likely to affect vocal opponents of the Government.
5.39DFAT understands that that the main issue facing returnees is the perceived lack of financial support provided for effective reintegration into Sudanese society, particularly in Khartoum.
The Tribunal also considers that if DMSB were returned to Sudan, given the basic levels of health care and social supports available in the country’s capital city, Khartoum (and non-existent in areas outside of Khartoum), he is likely to have little or no access to his current psychotropic medication or to opioid substitution therapy, which has assisted him with respect to his apparent mental health issues and to prevent a relapse. He is also unlikely to have access to any psychological counselling or rehabilitation programs.
DMSB contended that the existence of non-refoulement obligations to him alone outweighs any reasons to refuse him a visa, and that ought to be given determinative weight in this case.[18] The Tribunal does not agree, and has considered the primary and other considerations in accordance with the general weighting to be afforded to them as required under paragraph 8(4) of Direction no.79.
[18] Refer [61] of DMSB’s Statement of Facts and Contentions dated 25 February 2019 (DMSB’s SFIC).
However, s 198(6) of the Act provides as follows:
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) one of the following applies:
(i) the grant of the visa has been refused and the application has been finally determined;
(ii) the visa cannot be granted; and
(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.
Section 197C of the Act provides as follows:
Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.
Section 189(1) of the Act provides as follows:
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
The Minister in the present application contended as follows:[19]
[35] If the applicant were refused the Visa, he would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, although the Minister may consider alternative management options, such as the possibility of granting a vas under s 195A. Section 197C of the Act provides that the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen, and the Tribunal must consider the legal consequences of its decision to affirm the delegate’s decision.
[36] Return to Sudan is one possibility facing the applicant if he is not granted the visa. There are other possibilities: (i) the applicant may enjoy the benefit of an exercise of discretion by the Minister under s 48B or s 195A of the Act; or (ii) he may be the subject of a residence determination under Subdiv B of Div 7 of Part 2 of the Act; or (iii) he may be resettled in a third country. Further still, history teaches that the risk of persecution fluctuates over time, and it may be that any return to Sudan in the future is free from such risks.
[37] It is accepted that it is possible that the applicant would be subject to immigration detention until one of the aforementioned possibilities eventuates. The Tribunal must take into account these possibilities as the range of potential legal consequences of its decision. However, consideration of the possibilities that face the applicant if his visa is refused do not outweigh the considerations that favour the refusal. The applicant has shown himself to be a person who is willing to engage in conduct that is inconsistent with the Australian community standards and who poses a threat to the safety of members of the Australian community.
[38] In the circumstances of this case, the respondent accepts that consideration of Australia’s non-refoulement obligations weighs in favour of the applicant, but it does not outweigh the primary consideration of the protection and expectations of the Australian community.
[19] Refer [35] to [38] inclusive of the Minister’s Statement of Facts, Issues and Contentions dated 26 February 2019 (Minister’s SFIC).
In response to the position put by the Minister, DMSB contended that the legal consequence of the Tribunal affirming the reviewable decision, by operation of ss 197C and 198 of the Act, was that DMSB’s indefinite detention would not be lawfully authorised and he would be removed immediately to Sudan in breach of Australia’s non-refoulement obligations.[20] DMSB contended that there was no evidence available to the Tribunal for it to consider the other possibilities referred to by the Minister in paragraph [36] of the Minister’s SFIC.
[20] In support of the Minister’s contention, he placed reliance upon DMH16 and NKWF v Minister for Immigration and Border Protection [2018] FCA 409.
In this regard, and as mentioned in paragraph [43] of these Reasons for Decision, there is no evidence before the Tribunal to suggest that “alternative management options” are being considered for DMSB or that the Minister is considering exercising his discretion under other provisions of the Act to permit DMSB to remain in Australia. In answer to a question put to the Minister’s representative at the hearing, he said that he had not been provided with any instructions from his client that those matters were under consideration. The Minister’s representative also said that if those options were under consideration, he expected that his client would have informed him.
A similar case came before the Full Federal Court of Australia in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, where there was no indication that the Minister may have been considering his personal non-compellable power to act under s 195A of the Act. The contention that this was one possibility was described by the Full Court in that case as “a matter for speculation”. As indicated by Deputy President Rayment in BHKM at [65], “if any such visa was intended to be granted by the Minister, it would have been simple for evidence to that effect to be led before me from an officer of the Department and none was led”. That was also the case in this application.
The second sentence of paragraph 12.1(2) and the last sentence of paragraph 12.1(6) of Direction no.79 is inconsistent with the law as stated in s 198 read in conjunction with s 197C, and confirmed by North ACJ in DMH16. Accordingly, the Tribunal will apply paragraph 12.1(2) and (6), as relevant to this application, on the basis that those sentences are excised from these paragraphs. On this basis, the Tribunal concludes that DMSB will be deported as soon as reasonably practicable if the reviewable decision is affirmed. These legal and practical consequences in respect of DMSB and his future personal safety upon deportation are extremely serious.
DMSB invited the Tribunal to declare the whole of paragraph 12.1 of Direction no.79 as invalid because it was inconsistent with and based on a misunderstanding by the Minister of the operation of the Act. DMSB contended that one could not sever any individual part of paragraph 12.1. The Tribunal does not agree based upon the reasoning of Deputy President Forgie in Tran v Minister for Home Affairs [2019] AATA 199 as set out in paragraphs [44] to [50] and its adopts that reasoning.
Instead, the Tribunal has focused its attention on how the legal and practical consequences of affirming or setting aside the reviewable decision will impact on DMSB and specifically, whether it would result in Australian failing to meet its obligations under international treaties, measured up against the risk to the community if DMSB was permitted to remain in Australia.
The harm that would be caused by DMSB should he reoffend is relatively contained and excludes any harm of any violent or sexual nature. Most of the harm caused by DMSB in his criminal offending has been to himself or to a small number of others already using proscribed substances on a regular basis.
This is to be contrasted with the serious risk of persecution that DMSB will face should he be returned to his home country given his and his family’s political activism and the continuing volatile political environment that continues to exist in Sudan. This environment includes reported cases of the Sudanese Government interrogating returnees at international airports, detaining known or perceived dissidents and subjecting known them to deleterious treatment.
As observed by Deputy President Rayment in BHKM at [68], “a breach of a treaty to which this country is a part is not in the best interests of Australia, it is not consistent with the dictates of good government”.
The Tribunal concludes that the ‘other consideration’ of “non-refoulement obligations” weighs heavily in favour of not refusing DMSB’s visa application.
Impact on family members
Direction no.79 makes it apparent that this ‘other consideration’ applies where refusal to grant a visa would impact on “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”. This is not the case in DMSB’s circumstances. He has one immediate family member present in Australia, that is, Brother. However, Brother is present in Australia on a temporary basis and he is not a citizen, nor does he have any right to remain in Australia indefinitely.
Impact on victims
Paragraph 12.4 of Direction no.79 provides that the Tribunal should consider the impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal.
The Tribunal considers that persons predominately affected by DMSB’s criminal offending are limited to those to whom he supplied proscribed drugs. The effect of this offending on those persons is questionable. Sadly, those persons are already regular users of proscribed substances. There was no evidence that DMSB ever supplied to first time or recreational users. The circumstances of the supply were not for the purpose of DMSB generating large profits to enable him to live a lavish lifestyle. He purchased drugs as a collective with other regular drug users in an effort to drive the purchase price down from the “dealers” in order that he and other members in his friend group were able to acquire enough drugs to meet their needs for one or two days.
The Tribunal does not consider this factor to weigh significantly for or against the refusal of DMSB’s visa application.
Impact on Australian business interests
Paragraph 12.4(1) of Direction no.79 requires the Tribunal to consider the impact of exercising its discretion to refuse DMSB’s visa application on “Australian business interests” “noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia”.
DMSB gave evidence that he was not involved directly or indirectly in any business undertaking in Australia. There was no evidence before the Tribunal indicating that DMSB would be able to establish that the “employment link” requirement in paragraph 12.4(1) applied to him. Accordingly, this factor is not a relevant consideration in this application. It was not contended to the contrary, by either party to this application.
CONCLUSION
The Tribunal considers that DMSB does not pass the character test as defined in s 501(6) for the reasons set out in these Reasons for Decision. This enlivens the discretion under s 501(1) of the Act to refuse DMSB’s visa application, but only after the Tribunal has taken into account the primary and other considerations set out in Direction no.79 when exercising that discretion, which the Tribunal has now done.
The Tribunal concludes as follows:
(a)the ‘primary consideration’ of “protection of the Australian community” weighs in favour of refusing DMSB’s visa application under s 501(1) of the Act (refusal);
(b)the ‘primary consideration’ of “expectations of the Australian community” weighs against refusal; and
(c)the ‘other consideration’ of “non-refoulement obligations” weighs heavily against refusal.
This was not an easy case to decide and the Tribunal acknowledges that a fine balancing exercise was required in respect of the competing primary and other considerations. However, in exercising its discretion under s 501(1) of the Act, the Tribunal is satisfied that DMSB’s visa application should not be refused under s 501(1) because the ‘primary consideration’ of expectations of the Australian community and ‘other consideration’ of non-refoulement obligations in this case, outweigh the ‘primary consideration’ of protection of the Australian community.
Accordingly, the Tribunal sets aside the reviewable decision and in substitution, decides that the Applicant not be refused a visa under s 501(1) of the Act.
I certify that the preceding one hundred and fifty three (153) paragraphs and the further seventeen (17) paragraphs of the Confidential Schedule are a true copy of the reasons for the decision herein of Member K. Parker.
[sgd]........................................................................
Associate
Dated: 15 March 2019
Date of hearing: 4 & 5 March 2019
Date last submission lodged: 12 March 2019
Counsel for Applicant: Mr O Ciolek
Solicitor for Applicant: Virajith Hewaarachchi, Refugee Legal
Advocate for Respondent: Adam Cunynghame
Solicitor for Respondent: Sparke Helmore Lawyers
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