DXJL and Minister for Immigration and Multicultural Affairs

Case [2024] ARTA 18

Applicant:DXJL

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2022/6261

Tribunal:Senior Member A. Nikolic  

Place:Melbourne

Date:25 October 2024  

Decision:The Tribunal affirms the decision under review.

...................[SGD].....................................................

Senior Member A. Nikolic

Catchwords 
MIGRATION – mandatory visa cancellation – country of reference yet to be reliably established – extensive violent and other offending – where Applicant granted Class XB (Subclass 202) Global Special Humanitarian visa – failure to pass good character test – substantial criminal record – non-revocation decision – offending and misconduct in custodial settings – whether another reason to revoke the mandatory cancellation –  adjournment requests declined –  Ministerial Direction no. 110 applied – decision affirmed

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Regulations 1994 (Cth)

Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Al-Kateb v Godwin (2004) 219 CLR 562
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ali v Minister for Home Affairs (2019) 269 FCR 340
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 294 FCR 318
Cowgill v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 181 ALD 295
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FJP17 v Minister for Home Affairs [2019] FCA 256
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Guden v The Queen (2010) 28 VR 288
Hughes v The Queen (2017) 263 CLR 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Continue reading DXJL and Minister for Immigration and Multicultural Affairs

Sign in free to access the full text

Details
AGLC
DXJL and Minister for Immigration and Multicultural Affairs [2024] ARTA 18
Case
[2024] ARTA 18
Decision Date

CaseChat Overview and Summary

The case of DXJL and the Minister for Immigration and Multicultural Affairs involves the cancellation of a visa under the Migration Act 1958 (Cth). The Applicant, a 22-year-old man, claims to be stateless and was granted a Global Special Humanitarian visa in 2019. Despite this, the Minister cancelled his visa under section 501(3A) of the Act, a decision the Applicant sought to have revoked. The Administrative Appeals Tribunal (AAT) and the Federal Court have previously reviewed the matter, leading to the current review before the Tribunal.

The primary legal issues in this case revolve around the mandatory cancellation of the Applicant's visa under section 501(3A) of the Migration Act and the subsequent non-revocation decision made by a delegate of the Minister. The Tribunal must consider whether there are other reasons, beyond the failure to pass the good character test, to revoke the visa cancellation. This includes assessing the Applicant's extensive criminal history, his conduct while in custody, and his potential risk to the Australian community. Additionally, the Tribunal must determine if the Applicant's claim of statelessness affects the decision-making process and whether the decision to not revoke the visa cancellation was lawful and reasonable.

The Tribunal examined the Applicant's extensive criminal history, which includes unprovoked violent and sexual crimes, repeated breaches of conditional liberty, and dishonesty. Despite his claims of being influenced by adverse peers and substance abuse, the Tribunal found that the Applicant's conduct reflects a persistent disregard for Australian laws and the rights of others. The Tribunal gave significant weight to the protection of the Australian community, considering the seriousness of the Applicant's crimes and the potential for repeat offending. The Tribunal concluded that the Applicant does not pass the character test due to his criminal history and conduct in custody. Furthermore, the Tribunal found no other reasons to revoke the visa cancellation decision, affirming the Minister's decision.

In light of the above, the Tribunal affirms the decision not to revoke the visa cancellation. The Applicant's visa remains cancelled, and he is subject to the conditions of his Bridging (Removal Pending) Visa. The Tribunal's decision is based on the Applicant's extensive criminal history, persistent disregard for the law, and the potential risk he poses to the Australian community. The Tribunal did not find sufficient grounds to depart from the Minister's decision, upholding the importance of protecting the community from individuals who have repeatedly demonstrated a propensity for serious criminal conduct.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal affirms the reviewable decision BACKGROUND The Applicant is currently 22 years of age and contends he is stateless.[1] [1] Applicant’s Statement of Facts, Issues, and Contentions dated 17 April 2024, 25 [110] (‘ASFIC’). The Applicant’s mother fled South Sudan in about 1984 for a refugee camp in Ethiopia, where she met the Applicant’s father in 1986. The Applicant’s father subsequently left to fight in the civil war between Sudan’s Government and the South Sudanese People’s Liberation Army.[2] After the outbreak of the Ethiopian Civil War in 1991, the Applicant’s mother moved to a Kenyan refugee camp where the Applicant was born. He is one of seven children and, notwithstanding his statelessness claim, identifies as ethnically Dinka.[3][2] Ibid 1 [4].[3] Ibid 13 [57.a.]; Exhibit R1, 697. The Applicant arrived in Australia in 2005 at the age of two on a humanitarian visa with his mother and three siblings.[4] His family initially lived in Perth but moved to Melbourne when the Applicant was 12. This relocation was motivated by factors that included the Applicant’s older brother getting into ‘criminal trouble in Perth’[5] and a desire for his mother to be closer to family support.[4] Exhibit R1, 139.[5] Ibid 94 [12], 74 [26]. The Applicant soon became disconnected from family after arriving in Melbourne. He associated with adverse peers, used drugs, attended different high schools, and committed multiple crimes.[6] He undertook some secondary schooling while in juvenile custody.[6] Ibid 57-60. The Applicant has appeared in courts on multiple occasions for crimes involving violence, dishonesty, breaching conditional liberty, resisting police, and possessing drugs. Sentences of detention in Youth Justice Centres have been imposed. The Applicant has also offended and engaged in misconduct while in custodial settings. This includes violence and the sexual assault of a female youth custodial officer. In 2019, the Applicant was convicted of Aggravated Home Invasion (Steal) – Offensive Weapon and sentenced to four years in a Youth Justice Centre.[7] He continued to offend after release on parole. In 2020 he was convicted of Theft of a motor vehicle, Theft, Possess Methylamphetamine, and Deal With Property Suspected of Being Proceeds of Crime.[8] [7] Ibid 58.[8] Ibid 57-8.Procedural history This matter has an extensive procedural history as follows: (a)On 10 February 2021, while the Applicant was serving a sentence of full-time imprisonment for an offence against an Australian law, the Respondent cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[9] The Applicant was invited to make representations to have the cancellation decision revoked and did so on 11 and 17 February 2021 through his lawyers.[10][9] Ibid 140-7; Migration Act 1958 (Cth) (‘The Act’).[10] Ibid 151-182.(b)On 21 June 2021, the Applicant was moved to immigration detention.(c)On 29 July 2022, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act (“non-revocation decision”).(d)On 24 October 2022, the Tribunal, differently constituted, affirmed the non-revocation decision.[11][11] DXJL and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3809.(e)The Applicant appealed and, on 21 September 2023, the Federal Court quashed the Tribunal’s decision and remitted the matter for redetermination according to law.[12][12] DXJL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1124.(f)On 21 November 2023, the Applicant was released from immigration detention in Victoria after being granted a Bridging (Removal Pending) Visa (“BVR”). This resulted from the High Court’s decision in NZYQ,[13] which held that constitutional limits apply on the executive detention of unlawful non-citizens under ss 189(1) and 196(1) of the Migration Act. In substance, the Court held that continuing detention under those provisions is unlawful if there is no real prospect of a non-citizen’s removal becoming practicable in the reasonably foreseeable future.[14] A precondition of a BVR is that ‘the Minister is satisfied that the non - citizen's removal from Australia is not reasonably practicable at that time’.[15] [13] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (‘NZYQ').[14] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 451 [27] (‘TCXM’) citing NZYQ v Minister for Immigration, Citizenship & Multicultural Affairs [2023] HCA 37.[15] Migration Regulations 1994 (Cth) reg 2.20(12)(b).(g)Strict reporting and monitoring conditions apply to a BVR, breaches of which may constitute a criminal offence and result in mandatory imprisonment.[16] This includes condition 8620 relating to a nightly curfew and condition 8621 requiring the wearing of a monitoring device, which the Applicant is subjected to. [16] The Act (n 9) pt 2 div 3 sub-div AF. See, eg., ss 76B, 76C, 76DAA, 76DAB, 76DAC, 76DA, 76E.(h)Following release, the Applicant relocated to Perth where he has since resided with his mother, stepfather, two siblings, and a minor niece and nephew. The Applicant has never had paid employment and relies on a $700 fortnightly special benefit.(i)On 9 September 2024, the Applicant’s solicitor at the ASRC emailed the Tribunal asking that the substantive hearing be adjourned because the Applicant was confronted with new criminal charges:Dear RegistrarWe write to request an adjournment of this matter because we have just become aware of new criminal charges against [DXJL]. These charges have not been tested and our client has been advised of his rights to claim privilege against self-incrimination. We consider that it is in the interests of all parties that the matter be deferred until these charges are dealt with by a court. Consideration of these charges in circumstances where our client would not be able to respond to the matters would be highly prejudicial to [DXJL] and have the potential to lead the Tribunal into error. We have also sought instructions from Mr Patrick Newton, forensic psychologist, and a key witness in this matter, who instructs that he would be unable to form a considered and accurate opinion in the absence of procedural clarity in the criminal proceedings. Mr Newton expressed that relying on an untested police summary to change his report would be procedurally unfair and abrogate [DXJL’s] right to address the charges himself. [DXJL] is due to appear before the Magistrates Court of Western Australia on …September 2024…. Given there is no 84-day limit in this case, and given [DXJL] is not in detention, we do not consider that a postponement is prejudicial, although we are very mindful of causing any inconvenience to the Tribunal. We respectfully request that this matter is adjourned to a date not before the conclusion of [DXJL’s] criminal proceedings and noting the need for further engagement with Mr Patrick Newton. We will be able to give an indication as to the timetable of [DXJL’s] criminal matter once the mention has been heard. Due to the limited timeframe, we have not sought the position of the Respondent in this matter, however, they are included in this correspondence, and we would welcome the opportunity to address these issues at an urgent directions hearing.(j)The Tribunal held a telephone hearing on 12 September, during which the parties made submissions about the adjournment request, which the Respondent did not oppose. The Tribunal declined to vacate the scheduled hearing, however, and noted that consent of the parties is not determinative of an adjournment request. Moreover, the recent unspecified charges against the Applicant are yet to be considered by a court and the outcome may not be known for a lengthy period. This includes whether they are ultimately proceeded with. The new charges are not part of the factual matrix for the present hearing and the Tribunal did not accept that the reasons proposed for an adjournment were sufficiently cogent. The Tribunal also noted that DJXL’s application has been before the Tribunal for over two years. Notice of the hearing date was provided well in advance (November 2023), and several adjournments had already been granted. Hearings scheduled for 8-10 April 2024 and then 29-31 July 2024 were vacated, because of requests to have the matter heard in Perth, the health of one of the Applicant’s witnesses, and availability of counsel. Several amendments have also been made to scheduling orders for submission of materials as requested by the parties. (k)A day later, on 13 September 2024, the Applicant’s solicitor lodged a further adjournment request as follows, which was in comparable terms to the first:…We refer to the above matter. Following the directions hearing held on 12 September 2024, the applicant's representative contacted Mr Patrick Newton, forensic psychiatrist and a key expert witness, to advise that the Tribunal had directed the matter to proceed on the scheduled dates on the basis that the Applicant would not be prejudiced as the untested charges, including the fact of them, would not be taken into account. Mr Newton advised that even in these circumstances where he had knowledge of factors potentially material to his assessment of the applicant's risk but could not give [the Applicant] the opportunity to respond to those matters due to his right to claim privilege against self-incrimination, he would be unable to give evidence in relation to his 10 April 2024 report. The representative discussed the option of Mr Newton urgently meeting with the applicant to prepare a supplementary report, however, Mr Newton advised that such a report would be contrary to the Tribunal’s direction and would inevitably be prejudicial to [the Applicant] as it would likely contain information about the new charges (which have not been tested), in circumstances where [the Applicant] could not respond to those matters without having to waive his right to claim privilege against self-incrimination. While we appreciate the Tribunal's direction that the new charges would not be taken into account during the hearing, in circumstances where the applicant's key expert witness can not give evidence in accordance with this direction, we consider that the applicant’s case cannot proceed on the current dates without being seriously prejudiced. As such, we again press for the matter to be adjourned to another directions hearing in a month's time pursuant to the Tribunal’s power under s40 of the Act, noting that this discretionary power must be exercised reasonably. We are concerned that a refusal to adjourn the proceedings would be unreasonable in the sense set out in Minister for Immigration and Citizenship v Li [2013] HCA 18 in circumstances where:- the applicant faces serious prejudice by proceeding on the current dates;- the applicant does not now have a reasonable opportunity to present his case as per s39 of the Act; - the respondent has not indicated that it would suffer any prejudice by an adjournment and consents to an adjournment;- in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is relevantly ‘fair’ and ‘just’ and proportionate to the importance and complexity of the matter as per s2A of the Act. - The importance and gravity of this proceeding to the Applicant’s future cannot be understated; and- we do not consider, in the current circumstances, that we would be able to assist the Tribunal to fulfil these objectives as per our obligation under s33(1)(AB). Although we fully appreciate that the Tribunal has made arrangements for this matter (as has the parties) for this matter to be heard on the present dates and we deeply apologise for the inconvenience that such an adjournment would cause to the Tribunal (and parties’ representatives), we consider that the above factors ought outweigh this concern. We note that in Li the Tribunal’s assertion that ‘the applicant had been provided with enough opportunities to present her case’ was not considered sufficient to save its decision from being considered unreasonable.Due to the limited timeframe, we have not discussed this second adjournment request with the Respondent, however, we note their consent in relation to the first adjournment request and have included them in this correspondence. Again, we would welcome the opportunity to address these issues at an urgent directions hearing.’(Errors in original).(l)The Tribunal again declined the adjournment application, gave the following explanation, and undertook to include it in these substantive reasons:(i)The second adjournment application, only a day after the Tribunal decided to decline the first, was founded on comparable grounds.(ii)The new charges are not part of the factual matrix for the present hearing and their outcome may not be known for some time. The Tribunal was in effect being asked to delay the hearing for an indeterminate period.(iii)The existence of a criminal charge/(s) is no indication that a person has committed an offence. The Applicant is presumed innocent unless a court finds him guilty of an offence and, in the meantime, has a privilege against self-incrimination. Although the existence of the new charges was notified by the Applicant’s lawyers, no weight will be placed on this issue nor questioning permitted about pending charges in the current hearing. The first time this should occur is before a Court of criminal jurisdiction. There is no proper basis, therefore, for the contention that: ‘Consideration of these charges where our client would not be able to respond to the matters would be highly prejudicial…and have the potential to lead the Tribunal into error.’(iv)The Tribunal did not accept that the expert witness, an experienced forensic psychologist, needed to update his report to ‘form a considered and accurate opinion’ about the pending charges, or needed to rely on ‘an untested police summary to change his report’, or to ‘urgently’ meet with the Applicant to ‘prepare a supplementary report’, when the pending charges are not being discussed in the present hearing. The Tribunal also did not accept there was any impediment to an expert witness giving evidence based on a report they had already prepared, without regard for the pending charges. The purported imperative for a supplementary report is not made out.(v)The reference in the second adjournment request to Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) is inapt. Li relates to a decision by the Migration and Review Division of this Tribunal where an adjournment was not provided while knowing the applicant awaited the outcome of a review by Trades Recognition Australia, which may have been favourable to her work visa application. The Court noted that ‘the question which arose for the Tribunal was whether its review ought to be adjourned in order to afford Ms Li the opportunity to put forward the second skills assessment once TRA's review of it was completed’. The facts in Li are distinguishable from the present matter. It is noteworthy that paragraph 10 of Li states: ‘…Each tribunal must identify for itself the issues that arise in the application before it…’. As the Tribunal had conveyed, the pending charges are not an issue relevant to determining DXJL’s application. The contention, therefore, that failing to adjourn the hearing until the charges are finalised may constitute an unreasonable exercise of power or deny the Applicant procedural fairness, is rejected. (vi)It therefore follows that the grounds presented in both adjournment requests are insufficiently cogent to justify further adjournment. The hearing subsequently proceeded as scheduled.LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

The individual and cumulative weighing process is a matter for individual decision-makers.[24]EVIDENCEDocumentary evidence [24] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]‑[38] (Colvin, Stewart and Jackson JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].Statement of Facts, Issues, and Contentions A Statement of Facts, Issues, and Contentions (“SFIC”) is comparable to a pleadings document in courts. Ms Tadros advised the Tribunal in closing submissions that reliance continues to be placed in this proceeding on the Applicant’s Statement of Facts, Issues, and Contentions (“ASFIC”) dated 16 September 2022.[25] This was filed for the first Tribunal hearing by the Applicant’s former solicitor over two years ago. The Applicant also relies on a 38-page ASFIC dated 17 April 2024 and submissions in reply to the Respondent’s SFIC dated 19 September 2024, which is 42 pages long. This created some difficulties for the Tribunal given the changes in the Applicant’s circumstances during the last two years and inconsistencies between the 2022 and 2024 submissions as follows: (a)The weighing exercise referred to in the 2022 document is based on Direction 90, which has since changed under Direction 110. (b)The 2022 ASFIC submitted that the Applicant ‘poses a minimal risk to the Australian community’ and that ‘his risk to the Australian community is low’. This is different to the submissions advanced about risk in the 2024 documents. (c)It is contended in the 2022 ASFIC that the Applicant’s 2020 offending was ‘relatively minor by comparison to the offending which gave rise to the failure of the Character Test.’ This is again inconsistent with the 2024 submissions. (d)The submissions in the 2022 document about community expectations and non-refoulement have been overtaken by the Applicant’s release from detention in late 2023 and the different submissions now contained in the 2024 documents. For example, indefinite detention is not currently apposite to the Applicant’s circumstances given his release into the community on a BVR. (e)The 2022 document states that the ‘Tribunal will be required to make findings’ about the country of reference given the ‘Applicant’s status as a South Sudanese citizen (or otherwise) is unclear, considering that the Applicant was…born in Kenya’. The 2024 documents properly acknowledge the High Court’s decision in Plaintiff M1/2021, as enabling the Tribunal to defer consideration of this issue if an Applicant is eligible to apply for a Protection Visa. (f)The submissions in the 2022 about ‘Consequences of non-revocation’ have also been overtaken by events.[25] Exhibit R1, 547-56.

Decision

Reasons for decision

No weight is placed on this consideration. CONCLUSION Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction to generally give greater weight to the Protection of the Australian community, over the other primary considerations, as the highest priority of the Australian Government. The Applicant has an extensive criminal history that includes unprovoked violent and sexual crimes, repeated breaches of conditional liberty, and dishonesty. His conduct reflects a persistent disregard for Australian laws and the rights of others, including because of the repeat nature of serious crimes such as home invasions. The enduring impact of his crime on one elderly victim and her family is clear from her Victim Impact Statement. The Applicant has sexually assaulted a female Youth Justice employee and engaged in other misconduct while detained. This includes diversion of his prescription medication, passing and receiving contraband with other detainees, abusive and aggressive conduct, verbal and physical altercations, and leaving a permitted area during a riot. The Applicant has not been consistently compliant in custodial settings. There is a persistent trend of seriousness in the Applicant’s conduct over time. He has not been dissuaded by judicial sentences from reoffending or engaging in misconduct while in custody. His offending has been frequent and continued into adulthood. The Australian community would have a low tolerance of such conduct notwithstanding the length of his residence in Australia. He has persistently breached the privilege of being allowed to remain in Australia and the community’s reasonable expectation that non-citizens will abide by the law, respect important institutions, and not engage in conduct that harms others. A repeat of the Applicant’s violent offending could result in devastating consequences that include death, serious injury, or psychological harm. His crimes involving violence or a sexual dimension fall into a category where even a low probability of repeat is unacceptable. The Applicant tended during the hearing to externalise responsibility to adverse peers and alcohol / drug abuse for past offending yet sought out a ‘mate’ he was imprisoned with and consumed alcohol after release on a BVR. The former conflicts with his BVR obligations and the latter can only increase his recidivism risk according to Mr Newton. If the Applicant is unable to remain consistently compliant with rules in custody or under BVR conditions designed to ameliorate his recidivism risk, the Tribunal’s confidence in his claims about living a law-abiding life without BVR conditions is diminished. The Applicant remains suggestible and prone to bad decisions.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.