FFVW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 532
•16 March 2023
FFVW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 532 (16 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10689
Re:FFVW
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:16 March 2023
Date of written reasons: 30 March 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 16 August 2019 that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
................[Sgnd]......................
Senior Member George
CATCHWORDS
MIGRATION – Class BC Subclass 100 Spouse visa – where Applicant does not pass the character test – consideration of Ministerial Direction No.99 – offending serious – decision under review set aside – decision to revoke the mandatory cancellation of the Applicant’s visa substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Applicant S270/2019 v MIBP [2020] HCA 32
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471
FYBR v Minister for Home Affairs [2019] FCA 500
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v MHA [2022] HCA 17
SECONDARY MATERIALS
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
30 March 2023
INTRODUCTION
FFVW (“the Applicant”) is a citizen of Ethiopia.[1] He was born in July 1995 and is aged 27 years. He arrived in Australia as the holder of a Partner (Provisional) (Subclass 309) visa in October 2006, aged 11 years.[2]
[1] Exhibit R2, G-Documents, G11, page 120.
[2] Exhibit R2, G-Documents, G11, page 122.
The Applicant was granted a Class BC Subclass 100 Spouse visa on 23 November 2007. Following criminal offending and a resultant term of imprisonment, the Applicant’s visa was mandatorily cancelled on 16 August 2019 under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[3]
[3] Exhibit R2, G-Documents, G22, pages 195-199.
On 2 September 2019, the Applicant made representations seeking revocation of the cancellation decision.[4] On 22 December 2022, a delegate was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation decision should not be revoked.[5] This is the reviewable decision.
[4] Exhibit R2, G-Documents, G12, pages 134-152.
[5] Exhibit R2, G-Documents, G3, page 13.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 31 December 2022.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit R2, G-Documents, G1, pages 1-3.
On 9 and 10 March 2023, the hearing proceeded by audio-visual means.
On 9 March 2023, the following witnesses gave evidence:
(a)The Applicant; and
(b)The Applicant’s uncle “FTG”.
On 10 March 2023, the following witnesses gave evidence:
(a)The Applicant’s uncle “ETG”; and
(b)Dr Jai Nathani, a Consultant Psychiatrist.
The Applicant was represented by Mr Overend of Counsel instructed by Asylum Seeker Resource Centre. The Respondent was represented by Mr West of Sparke Helmore.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to make the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction), to revoke the cancellation.[7] Furthermore, claims of hardship that do not fall squarely within the structure the structure of the Direction cannot be overlooked.[8]
[7] On 23 January 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
[8] Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2002] FCA 1471, [46].
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 14 March 2013, the Applicant was convicted of robbery in company in the District Court of Queensland at Brisbane and sentenced to 18 months imprisonment wholly suspended.
On 25 February 2019, the Applicant was convicted of 22 offences in the Brisbane Magistrates Court. He was sentenced to 12 months imprisonment for possess property suspected of having been used in connection with a drug offence. For the remaining offences, lesser terms of imprisonment were imposed, and the terms were to be served concurrently. He was released on parole immediately due to time already served.
On 29 June 2019, the Applicant returned to custody. On 27 November 2019, he was sentenced to 12 months imprisonment in the Richlands Magistrates Court for assault occasioning bodily harm committed on 20 November 2018 whilst in custody.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In making its decision, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be considered. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND AND OFFENDING
The Applicant was born in Sudan but is a citizen of Ethiopia.[9] He lived in Sudan until he was aged 10 years, moving to Ethiopia with his stepmother and uncle and residing there until he was aged 11 years. The Applicant has resided in Australia since his arrival in October 2006.
[9] Exhibit A1, page 2, paragraph [5].
In his written evidence provided to the Tribunal, the Applicant described experiencing violence as a child whilst residing in Sudan. This was described in the following terms:
I was bought to Australia for a better and safer life then back home. I don’t really have memories of Sudan and even the memories that I do have aren’t good memories because I was there during the war. All I remember is when there was fighting. All of a sudden people would start attacking our village. One time I was in the street and some people came and started chucking rocks and shooting people. I ran to my house as fast as I could and we got under the bed. We had to stay under the bed for quite a while. People tried to break into the house and smash things. There were people shooting towards us. We were very scared. All we could do is wait until it stopped. This happened to many times during the war.[10]
[10] Exhibit A2, page 1, paragraph [4].
A significant amount of material has been placed before the Tribunal regarding the current situation in Ethiopia. It is clear from that material that the economy is weak and that the security situation remains poor. Government services are minimal.[11] Of note, “Substance abuse is a highly prevalent problem in Ethiopia, particularly among the young population”.[12]
[11] Exhibit A16.
[12] Exhibit A16, page 336.
The Applicant was raised by his mother. His mother told him his father was in Australia. He is unsure of when his father left Sudan and has no memory of him being around when he was a child. He wrote that one day his mother told him she would be sending him to Ethiopia and that she would follow him right after. However, “She never came. I now know she just said this to make me feel ok about leaving her and to comfort me”.[13]
[13] Exhibit A2, page 1, paragraph [6].
After the Applicant’s arrival into Australia, he resided with his father. In both his written and oral evidence, he described the violence he suffered at the hands of his father. In his statement, he wrote the following:
When I came to Australia my Dad was violent towards me. He was very controlling. If I wore the wrong shirt he would beat me. Sometimes he would force me to do hard exercise like push-ups and if I couldn’t do them all he would beat me. Sometimes he woke me up in the middle of the night because he said I wasn’t sleeping straight enough and beat me. One time he even beat me at school in front of the other students and parents. He did this because he didn’t like the shirt I wore to school.[14]
[14] Exhibit A2, page 1, paragraph [7].
The evidence before the Tribunal is that the beating that the Applicant suffered by his father triggered the school to call child services. The Applicant was eventually taken away from his father and placed into a foster home with other children. The Applicant stated that the foster home made him feel unstable as he had no mother or father in his life, “The adults at the foster home were nice enough but they couldn’t replace parents and were just there to check in on us”.[15]
[15] Exhibit A2, page 1, paragraph [8].
It was at the foster home that the Applicant was first introduced to drugs. When he was between the ages of 13 and 14, he was shown by the other foster children how to steal money. In his written evidence he wrote how he wanted to fit in with the other children and that it was fun to have friends and be part of a group. However, he quickly became addicted to drugs and was consequently expelled from high school at aged 15 years.
At aged 17 years the Applicant secured a job at a factory and “managed to get clean for a while”.[16] He was sent to a school that aimed at helping the attendees gain skills for future work.
[16] Exhibit A2, page 2, paragraph [11].
When the Applicant was 18 years of age he was removed from the foster home. He moved into a house with some friends but was eventually evicted and started sleeping on the streets. It was then that he turned to drugs to escape his situation at that time. He described this period of his life in the following terms:
For a while I did well. When I was 18 they kicked me out of the foster home because I was too old. I moved into a house with some friends. My friends took all my rent money and spent it on other things. We were evicted. I was left with nothing. I was sleeping on the street. I became addicted to drugs again quickly because it was a way to escape my situation. I started doing crime so I could feed myself and clothed myself. I had nowhere to go.[17]
[17] Exhibit A2, page 2, paragraph [13].
The Applicant’s offending commenced in 2013 when he was aged 17 years. On 10 May 2013, he was convicted in the Richlands Magistrates Court of three counts of supplying dangerous drugs and threatening violence. He was dealt with for supplying cannabis and for threatening to smash a house with a block of concrete. No convictions were recorded, and he was sentenced to six months’ probation. The sentencing remarks described the offending in the following terms:
Now, I’m accepting your plea of guilty and taking into account all the matters placed before the court. There was the charge that’s been reduced to one of threats. It’s still a very, very serious charge. Now, you sit down and you think about that. If somebody outside with a block of concrete threatened to smash your house up, it’s a very serious charge.
…If you commit any further offence, particularly one where you’re threatening people or supplying drugs to them within that six month period, you could be bought back before the court and resentenced.[18]
[18] Exhibit R3, Respondent’s Tender Bundle, R1, pages 36-37.
Following the conviction on 10 May 2013, he was convicted of possessing tainted property and, again, no conviction was recorded, and a $150 fine was imposed.
On 14 March 2014, the Applicant was convicted in the Brisbane District Court of robbery in company. He was sentenced to 18 months imprisonment wholly suspended. The offending involved the Applicant along with two other offenders robbing the victim as he was walking home.
The Applicant’s suspended sentence was fully invoked on 13 October 2016 following further criminal offending. On that occasion he was sentenced in relation to supplying dangerous drugs (cannabis) and other summary offences including disobedience to lawful order issues by statutory authority, possession of a knife in a public place and other drug offences. The sentencing remarks described this offending in the following terms:
You were given another lenient sentence on the 14th of March 2014 for robbery in company. You were given 18 months to be wholly suspended. You breached that on the 4th and were dealt with – excuse me – for that breach on the 4th of February 2015 by his Honour Judge Jones and you were given the option to prove yourself by having the period of suspended sentence extended. Unfortunately, you didn’t take the opportunity that was given to you and you committed these offences.
I accept that these offences are not the same seriousness as the robbery offence, but they’re still serious. The offer to supply a quantity of cannabis, then a whole series of summary offences, including having possession of a knife, possession of money and property related to drug offences, disobedience to lawful authority in that you wouldn’t give your PIN number so the police could examine, you were found in possession of dangerous drugs and the other summary offences.[19]
[19] Exhibit R2, G-Documents, G7, pages 42-44.
On 2 December 2016, the Applicant’s visa was cancelled on character grounds. In his personal circumstances form dated 1 January 2017, he was asked about his risk of reoffending:
I wouldn’t reoffend because im facing deportation and will change for the better here. I don’t have support in Africa. I have support here.[20]
[20] Exhibit R3, Respondent’s Tender Bundle, R5, page 247.
When asked if the Applicant had completed any courses or programmes to help avoid further criminal offending, he stated the following:
No not at the moment I am going to do any courses and programs that I can t help me in the fuchar. I have completed courses and programs befor I was in custody and I here had some work befor.[21]
[21] Exhibit R3, Respondent’s Tender Bundle, R5, page 247.
On 9 February 2017, a delegate of the Minister decided to revoke the mandatory cancellation of the Applicant’s visa. However, the letter formally warned the Applicant of the consequence of any future offending, it stated the following:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.[22]
[22] Exhibit R2, G-Documents, G17, pages 162-163.
On 25 February 2019, the Applicant was convicted in the Brisbane Magistrates Court of 22 offences. They included possess property suspected of having been used in connection with a drug offence, possession of a knife, possess dangerous drugs, possess utensils, and possess tainted property. A sentence of 12 months imprisonment was imposed, and 182 days pre-sentence custody was declared. The sentencing judge stated the following:
He then comes before me on a series of continuously – just continuously offending with what we would probably call reasonably low level, but it is the persistency that he has just appeared. He gets arrested and days later he is back again with it within – I mean, 28 June, 30 June, 15 July, 9 August, 1st August and 24 August where he is found within the vicinity of, I think you said, $6000 suspected of being proceeds. He spent 182 days in custody.[23]
[23] Exhibit R2, G-Documents, G5, pages 37-38.
On 27 November 2019, the Applicant was convicted in the Brisbane Magistrates Court of assault occasioning bodily harm. He was sentenced to 12 months imprisonment. The offence was committed whilst the Applicant was held on remand. He attacked another prisoner because he perceived the prisoner to be staring at him aggressively. His Honour described the offending in the following terms:
All right. [FFVW], I have taken into account your pleas of guilty and reduced the penalty I would otherwise have imposed. Obviously, the fact that you were a remanded prisoner at the time you committed the assault occasioning bodily harm, which is the most serious of the offences, is a significant aggravating feature, as is the fact that it was completely – a completely unprovoked attack upon this prisoner – this prisoner who suffered a physical injury as a consequence of it.
People cannot stare at you aggressively; you have got no idea what he might have been looking at, whether he might have been short-sighted and could not even see you at all, whether he might have been lost in his own thoughts. You have got no idea, so this sort of stupid, immature response to something that you imagined someone else was thinking is utterly ridiculous, basically.
The reality is that attacks by one prisoner upon another is not going to be tolerated. It is absolutely contrary to the good order and discipline of the prison and must be deterred by the imposition of deterrent penalties when it happens. The fact that you were taken to the disciplinary unit for a week is not a matter that, in my view, that constitutes any sort of mitigating feature that ought to result in a discount on sentence.
…The other two charges, of course, were – offences were committed while you were on parole and in, fact, you had only been released about four months at that point in time for a whole range of drug offences, so the fact that you had drug paraphernalia on your again so soon after your release does not bode well for any sort of rehabilitation and your history supports that with drug convictions going all the way back to 2013.[24]
[24] Exhibit R2, G-Documents, G6, pages 39-41.
The Applicant applied for a protection visa in 2020, this was refused. Despite this, the Applicant states that he is a person who is owed non-refoulement obligations. In his personal circumstances form dated 28 December 2021, the Applicant stated the following about fears over returning to Ethiopia:
Currently the country is at war and theres a coup. If, I were to be removed to Ethiopia I will be killed. I previously have applied to a protection visa due to the war in Ethiopia.[25]
[25] Exhibit R2, G-Documents, G11, page 132.
The Tribunal notes that the Applicant’s new protection claims have been referred by the Department of Homes Affairs to the Minister for intervention.[26] Although the Minister may yet lift the bar in s 48B of the Act to permit the Applicant to lodge a further protection visa application, this has not yet occurred.[27]
[26] Exhibit R2, G-Documents, G23, pages 202-215.
[27] Exhibit A14.
On 9 October 2020, the Applicant was sentenced to four months imprisonment in the Brisbane Magistrates Court for further drug offences committed in June and July of 2020.
Whilst in jail in 2020, the Applicant attended rehabilitation. He states that he has not taken methamphetamine since that time. The Applicant entered immigration detention following the completion of his term of imprisonment. In his personal circumstances form dated 28 December 2021, he wrote the following about his criminal history and risk of re-offending:
My offending occurred due to the fact that I had a drug addiction. I was homeless which led to my drug taking and addiction. I did not seek help for that at the time due to struggling in life with being homeless. Being homeless exposed me to negative elements & bad peer pressure which led me to offending. I have learn from my mistakes and I have been rehabilitated while being in immigration detention.
[I have] Participated in drug & alcohol rehabilitation course. Anger management courses.
Since I have been in immigration detention I have been rehabilitation and I have been reformed.[28]
[28] Exhibit R2, G-Documents, G11, page 129.
The Applicant was reportedly involved in numerous incidents whilst in detention. It is useful to list these accordingly:
(a)On 12 March 2020, Immigration Officers reportedly found contraband in his room during a matrix search.
(b)On 15 March 2020, a detainee threw an object over the fence into a yard. The Applicant was reported to then be seen catching that object and putting his down his trousers.
(c)On 17 March 2020, the Applicant was reportedly seen on CCTV attempting to secrete an amount of aluminium foil from a serving tray.
(d)On 9 June 2020, the Applicant was reportedly searched and found to have contraband in his possession. The search reportedly produced a syringe, two tablets and some suboxone strip.
(e)On 12 June 2020, the Applicant reportedly displayed abusive and aggressive behaviour towards Serco Officers. He reportedly called them “fucking Serco dogs” as he could not find a bottle of soft drink that belonged to him.
(f)On 21 June 2020, during a targeted room search, Immigration Officers reportedly found a syringe in the bin in the Applicant’s room.
(g)On 6 July 2020, CCTV reportedly caught a detainee passing something to the Applicant. Upon searching the Applicant, Immigration Officers found two white pills. The Applicant reportedly stated they were “sleepers”.
(h)On 21 July 2020, the Applicant was reportedly found in possession of a syringe, with the utensil in the drawn back position ready to use. The contents are unknown but suspected to have been suboxone.
(i)On 18 September 2020, the Applicant was reportedly abusive towards Serco staff.
(j)On 26 September 2020, the Applicant was reportedly observed verbally abusing other detainees.
(k)On 28 November 2020, during a search two aluminium foils were reportedly found taped under the step ladder of the Applicant’s bed.
(l)On 1 December 2020, the Applicant reportedly attempted to assault an Australian Border Force Officer by kicking a football at him.
(m)On 26 December 2020, the Applicant was reportedly seen on CCTV making a throw following by another detainee picking up an unknown item.
(n)On 13 January 2021, the Applicant and another detainee were reportedly involved in a verbal altercation which led to a physical alteration in a compound.
(o)On 21 August 2021, the Applicant was reportedly seen attempting to retrieve an item from a sterile area in alongside the compound. The officers reportedly spoke to the Applicant about the item which was later tested and found to have been Methylamphetamine.
(p)On 14 September 2021, the Applicant and several other detainees reportedly climbed the roof in protest of being transferred to Christmas Island Detention Centre.
(q)On 5 November 2021, the Applicant and multiple other detainees were reportedly found to be fighting and appeared under the influence of “an known substance”.
(r)On 24 February 2022, the Applicant and multiple other detainees were reportedly found in possession of weapons.
(s)On 3 March 2022, the Applicant reportedly displayed abusive and aggressive behaviour towards a Serco staff member. He shouted, “just give me some fucking toilet paper I’ve got to take a fucking shit”. Amid the officer handing him the paper the Applicant shouted, “do you want to fucking start something” “come outside”.
(t)On 23 March 2022, the Applicant and another detainee were reportedly involved in a physical alteration.
(u)On 24 May 2022, the Applicant was reportedly seen to be attempting a fence pass during medication rounds. He was reportedly searched by officers and no contraband or weapons were located.
The Applicant’s uncle “ETG” provided evidence in support of his nephew. “ETG” has deep concerns for his nephew’s welfare if detained for a lengthy period in immigration detention, or if he is returned to Ethiopia. “ETG” has offered to allow the Applicant to live with him in Perth in his family home, which is a pro-social and drug free environment. “ETG” has offered to support the Applicant financially and to assist him find work.[29] The evidence of “ETG” is broadly corroborated by another of the Applicant’s uncles, “FTG”, who has also offered to assist the Applicant.[30]
[29] Exhibit A3; Exhibit A7.
[30] Exhibit A6.
The Applicant has expressed interest and commitment to rehabilitation.[31] He has very little evidence of completed rehabilitation,[32] but has made enquiries into realistic residential rehabilitation options if he is released into the Australian community in the Perth region.[33] It has been submitted that “… the Applicant is at the beginning of his rehabilitation journey …” and this is clearly true.[34] However, this submission sits uncomfortably with the Applicant’s assertions in his 2017 personal circumstances form that “I am looking at Rehabilitation for when I get out of Jail so I head on the right path so I don’t re-offend as there is a future for me Here not over there”.[35]
[31] Exhibit A2, paragraphs [32]-[38].
[32] Exhibit A9; Exhibit A10
[33] Exhibit A11; Exhibit A12.
[34] Exhibit A4, page 4, paragraph [13].
[35] Exhibit R3, Respondent’s Tender Bundle, R5, page 252.
Dr Jai Nathani, a Consultant Psychiatrist, was called to give evidence principally regarding the Applicant’s risk of reoffending. He produced a medico-legal report.[36] The substance of this report was that the Applicant’s risk of non-violent reoffending “is in the moderate range and can be lowered with adequate treatment and support for rehabilitation” and that the Applicant’s risk of violent re-offending in in the low range.[37]
[36] Exhibit A8.
[37] Exhibit A8, page 5, paragraphs [3.6]-[3.7]
Dr Nathani’s opinion is that the Applicant has a greater chance of rehabilitating now, as compared to the past, due to his increased insight into his offending and its immigration consequences.[38] Regarding a failed previous attempt at rehabilitation, Dr Nathani was cross-examined as follows:
MR WEST:There was - and I think I recall you saying earlier that his motivation to attend treatment was quite a protective factor for him?
DR NATHANI: Yes.
DR NATHANI: So, we heard some evidence from the applicant earlier that essentially he forwent getting on a Suboxone program because he couldn’t get out of bed one morning to go to his last appointment, and so with that in mind does that have any effect on your analysis of his willingness to engage in treatment?
DR NATHANI: That in and of itself would have a small, if any, influence on the overall assessment. I think what would be important to understand is what the context of that was, like whether it was - because I think the overall tone of that is of - of information was that maybe FFVW is lazy or doesn’t prioritise treatment, which could well be the case, and if that were the case then that would be a negative prognostic factor and could complicate the treatment of being stable for the substance use disorder. On the other hand lots of people with a substance use disorder will find it difficult to get out in the morning and attend an appointment, especially if it’s a first thing in the morning kind of appointment. Lots of drug health services deal with high rates of DNA, which is “did not attend”, and it’s the - one of the fundamental roles of a drug health service is to encourage engagement with the services to gain an understanding what it was that led to this person not being able to get up in the morning, were they experiencing some symptoms of withdrawal, did they relapse the night before, stayed up all night, and then missed their - and slept through the appointment in the morning, were there psychosocial stressors that prevented them from attending this appointment.[39]
[38] Exhibit A8, page 10, paragraph [5.4]
[39] Transcript, page 5, lines 14-37.
Dr Nathani recommended the following course of treatment:
7.6 Rehabilitation from cannabis and methamphetamine is the initial treatment approach for [FFVW] which I recommend in the short- to medium-term. Treatments are most effective when combining a pharmacological intervention e.g., buprenorphine with psychotherapy e.g., Cognitive Behavioural Therapy (CBT) or group therapy. These can be provided through residential or community-based rehabilitation. [FFVW] would benefit greatly from engaging with local Drug Health Services to participate in effective interventions to manage cravings and to gain insight into the role that substances play in his life. Rehabilitation programs focus on gaining stable and, if needed, supported accommodation and employment; [FFVW] will benefit greatly from these interventions especially while transitioning from a detention centre to the community. These short- and medium term interventions are accessible in the community and given [FFVW]’s completion of online courses and current motivation to change, are likely to be successfully implemented.
7.7 In the long-term, psychotherapeutic interventions such as psychodynamic psychotherapy may be beneficial for [FFVW] to better understand the connections between his history of abuse and the behaviours he adopted as an adult. Such long-term therapy will allow [FFVW] to gain insight into his use of defence mechanisms and help integrate the different aspects of himself including the victim, the rescuer, and the persecutor within him. Psychodynamic psychotherapy is less accessible in the community and less likely to be successfully implemented. In my clinical opinion, while psychodynamic psychotherapy is a highly effective and useful intervention, its omission from the overall treatment plan will not significantly reduce the positive outcomes [FFVW] may achieve through short- and medium-term interventions.[40]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
[40] Exhibit A8, page 20, paragraphs [7.6]-[7.7].
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now turn to addressing.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant was convicted of assault occasioning bodily harm resulting from a completely unprovoked attack on another prisoner. The Tribunal views this conduct as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(i) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
Despite the contraband material reportedly discovered by Detention Centre Officers, the Applicant has not been convicted of a crime whilst in immigration detention. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[41]
[41] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant has been sentenced to several terms of imprisonment, which reflects the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has committed 52 offences over a period of seven years with his most recent offence having escalated to violence whilst in prison.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant has persistently breached the peace through his criminal offending and other serious conduct. The Respondent has submitted that the Applicant’s frequent offending “must be seen as cumulatively having had a deleterious impact on the Australia community”.[42] The Tribunal accepts this submission and adds that the Applicant’s conduct has inevitably come at a great financial cost to the Australian community, not just through his incarceration and detention, but also through Court and Tribunal processes.
[42] Exhibit R1, page 7, paragraph [29].
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
On 9 February 2017, a delegate of the Minister decided to revoke the mandatory cancellation of the Applicant’s visa and the letter formally warned the Applicant of the consequence of any future offending. Nevertheless, the Applicant has re-offended on several occasions since.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
There is no evidence before the Tribunal that the Applicant has committed any conduct or offence in another country that is classified as an offence in Australia. Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider that factors (b), (f) and (h) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community, were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Likelihood of engaging in further criminal or other serious conduct
The Applicant concedes that he has a lengthy criminal record of drug and stealing related offences. Apart from the assault in prison, the Applicant’s offending is related to prolonged drug addiction which resulted from homelessness and destitution.[43]
[43] Exhibit A1, page 3, paragraph [14].
It may be that the Applicant feels “persecuted” by the “police and legal system”,[44] but he is not the victim of his crimes. Furthermore, the Applicant’s numerous reported incidents in immigration detention are viewed unfavourably by the Tribunal.
[44] Exhibit A8, page 15, paragraph [7.5].
In 2017, the Applicant made submissions regarding his desire for rehabilitation. He failed to act upon this desire and instead re-offended. Despite his most recent period of incarceration and subsequent immigration detention, the Tribunal is not satisfied that the Applicant has gained full insight into his conduct. However, the Tribunal accepts Dr Nathani’s evidence that the Applicant has greater insight into his conduct than he has had previously.
On the balance of the evidence before it, the Tribunal is satisfied that the Applicant will commence rehabilitation if released into the Australian community. It remains to be seen whether the Applicant completes this rehabilitation. The Tribunal is of the view that the support provided by the Applicant’s uncles will be material to his success, or failure, in this regard.
The Tribunal accepts Dr Nathani’s evidence that Applicant’s risk of non-violent reoffending is in the moderate range. The Tribunal accepts that this risk can be lowered with adequate treatment and support for rehabilitation. Similarly, the Tribunal accepts the Applicant’s risk of violent re-offending in in the low range.
This is not a matter where the Applicant’s conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. However, it is a matter where the Australian community’s tolerance for the persistent harm the Applicant has caused is becoming lower as the seriousness of the potential cumulative harm increases.
This consideration weighs heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Family violence does not arise on the evidence before the Tribunal, and therefore this consideration is not relevant.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
It is incumbent on the Tribunal to consider any impact of its decision on the non-citizen’s immediate family members in Australia who are either:
(a)Australian citizens,
(b)Australian permanent residents; or
(c)people who have a right to remain in Australia indefinitely.[45]
[45] Direction 99, paragraph 8.3(1).
The Direction requires that more weight be given to the non-citizen’s ties to his or her child and/or children who meet the same qualifiers.[46]
[46] Direction 99, paragraph 8.3(2).
Paragraph 8.3(3) lacks clarity and seems to be a statement without any direction to the decision-maker:
8.3(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Although not expressly stated, the logical inference is that these factors must be considered.
Paragraph 8.3(4) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. When considering any other ties, the Tribunal must have regard to the length of time the non-citizen has resided in the Australian Community in accordance with the following weightings:
i. Considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. More weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. Less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Analysis – Allocation of Weight to this Primary Consideration 3
Accordingly, in assessing the weight attributable to Primary Consideration 3, it is necessary to have regard to the following matters:
(a)The Applicant has been ordinarily resident in Australia since his formative years, having arrived aged 11 years old in 2006.
(b)The Applicant has made some positive contributions to Australia through his limited employment.
(c)The Applicant has two uncles in Australia, “ETG” and “FTG”, with whom he maintains close contact and who would be impacted by a decision not to revoke the cancellation of the Applicant’s visa.
(d)The evidence before the Tribunal does not support positive findings regarding the Applicant’s other immediate family in Australia.
Placing considerable weight on the fact that the Applicant has been ordinarily resident in Australia during and since his formative years, regardless of when his offending commenced and the low-level of that offending, this Primary Consideration 3 weighs very heavily in favour of the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs very heavily in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3), respectively, contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has given evidence, and the Tribunal accepts, that the Applicant does not have minor children. This consideration is therefore not relevant.
Conclusion: Primary Consideration 4
Primary Consideration 4 is not relevant.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[47]
[47] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 2006 and is now aged 27 years.
(b)The Applicant has resided in Australia since his arrival in 2006.
(c)The Applicant has two uncles in Australia who have committed to assist him if he is released into the Australian community.
(d)The Applicant has persistently engaged in criminal and other serious conduct.
(e)The Applicant has been imprisoned for his offending.
(f)The Applicant’s preparedness to commit crimes raises serious character concerns.
On balance, this consideration weighs heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) Legal consequences of the decision
The Direction divides the considerations to be applied into two sections: (1) ‘Non-citizens covered by a protection finding’, and (2) ‘Non-citizens not covered by a protection finding’.
Paragraph 9.1(1) of the Direction requires decision-makers to be mindful that unlawful non-citizens are, in accordance with s 198 of the Act, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under s 189 of the Act, noting also that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen.
Paragraph 9.1(2) of the Direction sets out what a non-refoulement obligation is in the following terms:
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, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
Paragraph 9.1(3) clarifies, in accordance with current caselaw,[48] that non-refoulment obligations will generally not be relevant where the person concerned does not raise such obligations for consideration or the circumstances do not suggest a non-refoulment claim.
[48] See Applicant S270/2019 v MIBP [2020] HCA 32.
Non-citizens covered by a protection finding
Paragraph 9.1.1(1) indicates that non-refoulement obligations are engaged where a protection finding (as defined in s 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application.
Paragraph 9.1.1(2) explains that s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen. As such, it notes the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under ss 501 or 501CA is made and they become, or remain, an unlawful non-citizen as a result. It indicates that instead, the non-citizen must remain in immigration detention as required by s 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
Paragraph 9.1.1(3) requires the Tribunal to be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the non-citizen will be prevented by s 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that s 48A does not apply to them). Further, the Tribunal is also required to be mindful that as a result of a refusal or cancellation decision under s 501 or a non-revocation decision under s 501CA, the non-citizen will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (as per s 501E of the Act and reg 2.12AA).
Non-citizens not covered by a protection finding
Paragraph 9.1.2(1) indicates that claims which may give rise to non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding and that where such claims are raised, they must be considered.
Paragraph 9.1.2(2) stipulates that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the ss 501/ 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. It states, in accordance with current caselaw[49], that the process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the non-citizen to make such an application a decision-maker, in making a decision under ss 501/501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. It indicates that having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by s 36A of the Act, before consideration is given to any character or security concerns associated with them.
[49] See Plaintiff M1/2021 v MHA [2022] HCA 17.
Paragraph 9.1.2(3) clarifies that non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage s 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under ss 501 or 501CA, it requires decision-makers to carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. It notes, however, that this does not mean an adverse decision under ss 501 or 501CA cannot be made for the non-citizen. It explains that in such circumstances a refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. It indicates that, for example, consideration may be given to removal to another country, or the Minister may consider exercising a personal discretion under s 195A to grant another visa to the non-citizen, or alternatively, consider exercising a personal discretion under s 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, it makes clear that following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Analysis – Allocation of Weight to this Other Consideration
Accordingly, in assessing the weight attributable to this Other Consideration, it is necessary to have regard to the following matters:
(a)The Applicant applied for a protection visa in June 2020 and the application was refused, meaning that he is not covered by a protection finding.
(b)As at the date of decision, the Minister has not lifted the bar in s 48B to allow the Applicant to lodge a further protection visa application.
(c)The Applicant has stated that he fears for his life if he is returned to Ethiopia.
(d)The Applicant’s claims engage Australia’s non-refoulement obligations for the purposes of deciding the merits of the decision under review.
(e)The engagement of Australia’s non-refoulement obligations, in this particular case, gives rise to the risk of the Applicant’s indefinite detention in immigration detention.
Accordingly, this Other Consideration weighs very heavily in favour of the decision to revoke the mandatory cancellation of the Applicant’s visa.
(b) Extent of impediments if removed
As a guide for making the decision, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is aged 27 years, turning 28 in July of this year. He is in relatively good health, notwithstanding his history of substance abuse and psychological issues raised by Dr Nathani.
The Applicant would suffer very substantial language and cultural barriers if returned to Ethiopia due to the formative years that he has spent in Australia, and his lack of Ethiopian language skills. The Tribunal is not satisfied that the Applicant’s English language skills are a reasonable substitute for his lack of Ethiopian language skills.
The evidence before the Tribunal is that the social, medical and economic support available to the Applicant is lesser than that which would be available to him in Australia. Indeed, the Applicant would be deprived of the company of his pro-social uncles who will assist him to try and maintain stable accommodation and to achieve employment. Similarly, the evidence before the Tribunal is clear that the medical support available to the Applicant to be rehabilitated is significantly higher in Australia than in Ethiopia.
Accordingly, this Other Consideration weighs very heavily in favour of the decision to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9.3(1) requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims. Accordingly, the Tribunal does not regard this consideration to be relevant.
(d) Impact on Australian business interests
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision-makers must have regard to the any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on the impact of Australian business interests. Accordingly, the Tribunal does not regard this consideration to be relevant.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: weighs very heavily in favour of the decision to revoke the mandatory cancellation of the Applicant’s visa.
(b)extent of impediments if removed: weighs very heavily in favour of the decision to revoke the mandatory cancellation of the Applicant’s visa.
(c)impact on victims: not relevant.
(d)impact on Australian business interests: not relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
(b)Primary Consideration 2 is not relevant.
(c)Primary Consideration 3 weighs very heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is not relevant.
(e)Primary Consideration 5 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
(f)The weight attributable to the four-listed Other Considerations as found above.
By the slimmest of margins, the Tribunal considers that the totality of the heavy weight it has attributed to Primary Consideration 3 and the Other Considerations, outweighs the weight it has allocated to the remaining Primary Considerations.
A holistic view of the considerations in the Direction therefore favours the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal decides to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 16 August 2019 that the mandatory cancellation of the Applicant’s Class BC Subclass 100 Spouse visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 132 paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision:
Date of Written Reasons:
16 March 2023
30 March 2023
Date of Hearing:
9 and 10 March 2023
Counsel for the Applicant
Solicitor for the Applicant:
Mr Overend
Asylum Seeker Resource Centre
Solicitor for the Respondent:
Mr West
Sparke Helmore LawyersANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions.
R
20/02/2023
20/02/2023
09/03/2023
A1
Applicant’s Statement of Facts, Issues and Contentions
A
07/02/2023
07/02/2023
09/03/2023
R2
Section 501 G-Documents
R
Various
16/01/2023
09/03/2023
R2
Tender Bundle
R
Various
20/02/2023
09/03/2023
A2
Statement of Applicant
A
07/02/2023
07/02/2023
09/03/2023
A3
Statement of Applicant’s Uncle “ETG”
A
07/02/2023
07/02/2023
09/03/2023
A4
Reply to the Respondent’s Statement of Facts, Issues and Contentions
A
02/03/2023
02/03/2023
09/03/2023
A5
Supplementary Statement of Applicant
A
02/03/2023
02/03/2023
09/03/2023
A6
Statement of Applicant’s Uncle “ETG”
A
24/02/2023
02/03/2023
09/03/2023
A7
Statement of Applicant’s Uncle “FTG”
A
01/03/2023
02/03/2023
09/03/2023
A8
Statement of Expert Witness Dr Jai Nathani
A
25/02/2023
02/03/2023
09/03/2023
A9
Rehabilitation Evidence
A
Undated
02/03/2023
09/03/2023
A10
Attendance and Participation Form of SMART Australia
A
Various
02/03/2023
09/03/2023
A11
Palmerston Therapeutic Community Brochure
A
Undated
02/03/2023
09/03/2023
A12
Fresh Start Rehabilitation Information
A
Undated
02/03/2023
09/03/2023
A13
Freedom of Information Release
A
Undated
02/03/2023
09/03/2023
A14
Correspondence Between Representatives of Parties
A
Various
02/03/2023
09/03/2023
A15
Further Brief Statement of Applicant
A
06/03/2023
06/03/2023
09/03/2023
A16
COI Bundle
A
Undated
03/03/2023
09/03/2023
0
9
0