FHCJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3352

FHCJ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3352 (18 October 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5828

Re:FHCJ

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:18 October 2023

Place:Sydney

The correct and preferable decision is that the reviewable decision of 9 August 2023, not to revoke the cancellation of the Applicant’s visa, is affirmed.  

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – protection of the Australian community – links to the Australian community – expectations of the Australian community – legal consequences of decision – impediments to removal – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) s 499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

18 October 2023

BACKGROUND:

1. I note the Respondents Statement of Facts, Issues and Contentions contains a helpful factual summary of this application, much of which is replicated below.

2. The Applicant is a 36 year old citizen of Afghanistan who first arrived in Australia in 2012 as an unauthorised maritime arrival.

3. On 21 November 2022, the Applicant received an aggregate sentence of 12 months’ imprisonment, in the Fairfield Local Court for several offences related to fraud, theft and assault.

4. On 29 November 2022, the Applicant’s visa was mandatorily cancelled for the fourth time, with previous revocations of mandatory cancellations taking place in April 2017, April 2018 and December 2020.

5. In relation to the most recent cancellation of the Applicant’s visa, the Applicant made representations seeking revocation, and on 28 July 2023 a delegate of the Minister decided not to revoke the mandatory cancellation. The Applicant was notified of that decision on 31 July 2023.

6. On 9 August 2023, the Applicant applied to the Tribunal for review of the delegate’s decision. 

   LAW:

7. The relevant legislation and policy is outlined below.

8. Section 501CA(4) of the Act states:

   (4) The Minister may revoke the original decision if:

   (a) the person makes representations in accordance with the invitation; and

   (b) the Minister is satisfied:

   (i) that the person passes the character test (as defined by section 501); or

   (ii) that there is another reason why the original decision should be revoked.

9. In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

10. On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.

11. Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:

    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 cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens 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.

12. Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.

13. Section 8 of the Direction provides that the five primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

    (b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

    (c)The strength, nature and duration of ties to Australia (Primary Consideration 3);

    (d)The best interests of minor children in Australia (Primary Consideration 4); and

    (e)Expectations of the Australian community (Primary Consideration 5).

14. Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:

    (a)Legal consequences of the decision;

    (b)Extent of impediments if removed;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

    ISSUE:

15. As the Applicant has been sentenced to an aggregate criminal sentence of 12 months imprisonment or more, he does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.

    EVIDENCE OF THE APPLICANT:

16. The Applicant arrived in Australia by boat in 2012 having previously lived in Afghanistan. He completed his schooling in Afghanistan and subsequently worked as a welder with his father, until the arrival of the Taliban, after which he worked as an undercover policeman in Narcotics investigation. In that regard the Applicant said he was mainly dealing with hashish and opium.

17. He said he didn’t learn anything about the dangers of drugs to the community, but simply that it was against the law to plant cannabis and opium poppy plants.

18. The Applicant said that when he came to Australia, he understood that taking drugs was against the law.

19. The Applicant said that he first came to Sydney whilst in immigration detention and that having been released he could not find work and lived on jobseeker payments. He eventually found work collecting trolleys at shopping centres for which he was paid in cash. He said he started taking drugs at this time, because his co-workers were using drugs and that using drugs gave him additional strength to push trolleys. When questioned, the Applicant said that he did not know that the use of these drugs was against the law. He stopped pushing trolleys because he could not do the work anymore. About this time, he started using a variety of drugs including heroin and fentanyl patches obtained from a doctor.

20. In June or July 2015 the Applicant agreed that he was living in a known drug supply house, but said that he had no option but to live there.

21. The Applicant initially said that he couldn’t remember his first contact with police in July 2015, but later agreed that the police fact sheet was correct. The Applicant had tried to escape from the house when the police came, and was subsequently found with drugs, including fentanyl patches and other people’s identity cards, which he said that he had found and did not know what to do with them. He told police he was buying fentanyl on the street for about $180, and that he got the money from stealing.

22. The Applicant said he did whatever his dealer wanted. In mid 2015, the Applicant said he was using cannabis, fentanyl and ice, all funded by stealing. He was also gambling on poker machines at the pub.

23. By September 2015 the Applicant had a gambling debt of over $10,000 owed to his dealer. This led to the incident in September 2015 where the Applicant was caught stealing earphones from Coles. The Applicant said he knew it was wrong but needed to steal the goods in order to pay for his drug habit and repay his dealer. The Applicant went to court and was given a good behaviour bond. He said he did not understand that any breach of the bond would have consequences.

24. The Applicant accepted that subsequently, in breach of his bond, he committed further offences in December 2015, including stealing energy drinks which he said was necessary to pay for his drug addiction.

25. The Applicant did not agree that he had resisted arrest.

26. The Applicant further breached his bond conditions in January 2016, where he stole items from a Myers on behalf of his dealer. The Applicant said the dealer told him what to steal and he stole it.

27. He agreed that he had committed a further shoplifting offence in March 2016, again to fund his drug habit.

28. The Applicant said the problem was that no one helped him to get off drugs.

29. When cross examined, the Applicant agreed that he continued to offend and risk gaol, and that he had no intention of complying with the community orders that he had signed. He continued stealing and said that he was not always caught.

30. On September 2016 the Applicant was gaoled by the Liverpool Local Court for stealing. The Applicant agreed that the magistrate at the time said that his offences were not trivial and were no excuse for his behaviour. The Applicant agreed that his offending was serious.

31. After his release from gaol the Applicant continued to use drugs.

32. The Applicant remembered that his visa was cancelled in February 2017, and that he had sought revocation of the cancellation decision. He said however, that at that time, the only thing that mattered to him was drugs, and so he continued to offend after his release in 2017.

33. He said he only cared about drugs at that time. He said that he failed to report to community corrections and that he continued to steal. He took fentanyl 3 days after his release from prison and fell back into the same cycle where nothing mattered but satisfying his drug addiction.

34. In November 2017 the Applicant was sentenced to 9 months imprisonment and was in custody from June 2017 to March 2018. The Applicant said that during this time he was using drugs while in gaol. The Applicant said he started the suboxone program after his release from gaol.

35. After the Applicant’s visa was cancelled again in December 2017 the Applicant said he had assistance to fill out a request for revocation of the cancellation. However, he knew at that time that he would continue to use drugs.

36. When questioned, the Applicant agreed that he had continued to use drugs, and that he continued to break the law even when he was making submissions to the Minister that he would not continue to use drugs and break the law. Once again, the Applicant said he cared only about satisfying his drug habit. 

37. On his release from detention in April 2018, the Applicant agreed that he had signed an acknowledgement that his visa could be cancelled again if he continued to offend. However, the Applicant said that he forgot everything when he was on drugs and started stealing again in order to pay for drugs.

38. In June 2018 the Applicant attempted to steal goods from Woolworths Merrylands, and when apprehended by security he produced scissors and attempted to use them against the security guard, also resulting in injury to his own hand. The Applicant said that at that time he was using a variety of drugs as fentanyl became very expensive.

39. When returned to prison in June 2018, the Applicant said he continued to buy and use drugs.

40. On 12 December 2018 the Applicant received a sentence of 20 months for Assault occasioning actual bodily harm.

41. The Applicant’s visa was again cancelled on 11 April 2019. He said he could not remember what he said about his visa at the time but thought he probably said that he would not use drugs again. After being released from prison, the Applicant said he continued to use drugs and by way of explanation, said ‘no one told me not to go back to the drug area’.

42. The Applicant commenced taking methadone but stopped treatment in 2020. He said that no one helped him, even though he had asked for help. The Applicant did not give any evidence as to who he had asked for help, or any response to such a request.  

43. The Applicant’s visa was restored in December 2020, but the Applicant said he did not remember whether he received a warning from the Government. He did understand that he was being given another chance, but again said that ‘no one had helped him’.

44. After his release from prison in December 2020, the Applicant started using drugs again but said it was mainly heroin, as fentanyl was too expensive.

45. In February 2021, the Applicant was involved in an altercation with two men, who the Applicant said attacked him. He was under the influence of drugs at the time and was taken to hospital by police.

46. On 14 October 2021, the Applicant went to court again and said that he entered a guilty plea after being told to do so by his lawyer in the hope of receiving a lesser sentence. The Applicant was given a community corrections order for 14 months. He did not comply with that order because he was again taking drugs and stealing to pay for his habit. The Applicant said that if Centrelink had been sufficient to pay for his drugs, he would not have had to steal.

47. On 11 February 2022, the community corrections order was revoked as a result of further convictions for stealing, and the Applicant was taken into custody in July 2022.

48. The Applicant said that he only used drugs periodically whilst in prison, and after release from prison in January 2023, he said he lived with a friend in Parramatta. He stopped having injections at the clinic but said that he did not use drugs.

49. The Applicant disputed police reports which said that in February 2023, the Applicant had been found slumped on a park bench with an ice pipe under the seat. The Applicant said that he was homeless at the time and had been sleeping rough.

50. In March 2023 the Applicant re-entered immigration detention. He disputed entries by the nurse at the Villawood Detention Centre in relation to ongoing ice use. He said that he kept looking for drugs and that he sometimes used ice in detention if he had money to pay for it.

51. The Applicant again, said that he was looking for help and that nobody helped him. He agreed that he was receiving buvidal injections in detention and that he sometimes missed his appointments. He said that one of the reasons was that he overslept.

52. The Applicant said that if he was released he would stay in Sydney for about a week and then move elsewhere to get away from his old environment. There was no evidence as to where the Applicant proposed to relocate.

53. The Applicant again said that no one helps him, and that he will try to help himself.

54. When questioned in relation to his revocation request of November 2022, where he had written that he suffered from schizophrenia, the Applicant was unable to provide any evidence a diagnosed condition. On the form, the Applicant also said that he was taking Olanzapine (a drug used to treat psychosis), but there was no evidence of any current diagnosis, nor any treatment regime.  

55. The Applicant’s final statement referred to the possibility of suicide if no one helped him.

    DECISION

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

56. In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 99.

57. There are two limbs to this consideration:

    (a)The nature and seriousness of the conduct of the non-citizen; and

    (b)The risk to the Australian community should the non-citizen re-offend.

    Nature and seriousness of the offending:

58. There is no doubt that the Applicant’s crimes must be considered as very serious. The Applicant’s offending started within 3 years of his arriving in Australia, and his drug use has continued, virtually without abatement, even when the Applicant was imprisoned or detained.

59. Whenever the Applicant was in the community, he has continued to steal whatever would fund his drug habit. Further, his behaviour increased in seriousness including being found guilty of the offence of Actual Bodily Harm in relation to attack on a security guard with scissors the Applicant had in his bag at the time in June 2018, and later his conviction for assault in relation to two men, who were the victims of a random attack in Parramatta in February 2021.

60. The Applicant was given numerous opportunities to seek help and to cease his criminal offending but on his own evidence took very little, if any, notice of community corrections orders and other opportunities given to him by the criminal justice system.

61. Similarly, the Applicant was given three previous chances to retain his visa, but again, on his own evidence lied to the Australian Government and took no notice of repeated warnings.

62. The Applicants failure to show any remorse, blame others and characterise himself as the victim is particularly relevant when looking at the increasing seriousness of his offending.

63. Looking at this behaviour overall, it is impossible to avoid a conclusion that the Applicant showed a blatant disregard for both the criminal justice system, and the Australian community, and despite the opportunities offered to him, continued to focus solely on satisfying his drug habit.

    Risk to the Australian community should the Applicant reoffend:

64. There is no evidence at all that the Applicant has made any serious attempt to deal with his drug addiction. The Applicant has shown no insight into either his addiction or behaviour, and it is of great concern that rather than taking responsibility for his behaviour, the Applicant continued to complain throughout all of his evidence that ‘no one’ had helped him.

65. The Applicant showed no remorse in relation to his offending and portrayed himself as the victim.  

66. The Applicant’s offending is clearly linked to his drug addiction. It became more serious over time, and it is reasonable to expect that it will continue in the absence firstly, of taking personal responsibility and secondly, of a real and meaningful commitment to cease using drugs. Simply saying that he would move to another location can be given very little weight in relation to this consideration.

1. There was no evidence at all which would indicate any commitment to putting a real plan in place which might lead to the Applicant being free of drugs. Even whilst in prison or in detention the evidence was that the Applicant continued to use drugs.

2. The only evidence the Applicant gave in relation to dealing with his drug habit was that if released from detention he would move from Sydney in order to remove himself from his old environment. It is hard to believe that even if the Applicant were to leave Sydney, a change of location would, of itself, be sufficient to end his dependence on drugs and his need to steal in order to fund his drug habit. It is of concern that there was no evidence of any desire to take responsibility for himself and/or to seek treatment.

3. Indeed, the Applicant’s record of failure to engage with community corrections gives little reason for optimism in relation to his engagement with drug and alcohol prevention programs in the community.

4. Put simply, there was no evidence at all before the Tribunal of any commitment by the Applicant, to take personal responsibility, help himself to deal with his addiction, or seek appropriate treatment.

5. Despite acknowledged problems in immigration detention it does not appear that the Applicant sought help even though it was available. He failed to attend appointments in relation to the Suboxone programs and admitted that he has continued to use ice while on this program. The Applicant said he failed to attend appointments because he had overslept.

6. I find no evidence that the Applicant will do anything other than return to his old habits if he is released into the community. He has no support, no family and no friends who may be able to assist him. Indeed, his only influences appear to be negative. Moreover, the Applicant takes no personal responsibility for his behaviour.

7. Given that the Applicant does not appear to have any positive influences in his life and is therefore, almost certain to reoffend if released into the community, he must be assessed as an ongoing serious risk to the community.

8. As there was no evidence at all to indicate that the Applicant would not reoffend, and taking each of his offences into account, on the basis of the evidence I find that his reoffending would be likely to increase in seriousness.

9. Overall, I find this first consideration weighs heavily in favour of affirming the delegate’s decision.

   PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

10. Despite having arrived in Australia in 2012, on the evidence the Applicant does not seem to have developed any meaningful ties in the Australian community.

11. More than half of the Applicant’s time in Australia has been in prison or in immigration detention.

12. When he is in the community, the Applicant appears to have either lived in a known drug houses or has been homeless. His closest tie seems to have been with his drug dealer, whose instructions to steal he followed in order to fund his drug habit.

13. The Applicant gave evidence that he had a friend in Parramatta with whom he had lived for a short period of time. Apparently this person had told the Applicant to stop taking methadone. There was no evidence as to the identity of the person and no statement from this person.

14. There was no evidence of any association with any church group, charity or community organisation.

15. Accordingly, this consideration must be accorded very limited weight.

    PRIMARY CONSIDERATION 5 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction 99 at paragraph 8.5.

17. In considering weight, I accept that the Applicant suffered trauma on his journey to Australia.

18. I also accept that he may have some degree of mental illness, although there is no up to date diagnosis or any evidence of ongoing treatment. The only reference to mental illness was in the revocation request, which referred to schizophrenia, but there was no medical evidence in relation to this condition. At the hearing, neither party adduced any evidence in relation to ongoing mental illness, diagnosis, or treatment.

19. Against this, the Applicant has posed a risk to the Australian community since 2015 and has continually ignored warnings both from the criminal justice system, and the Government, along with the opportunities he was given by the justice system and the Australian Government to reform.

20. The Applicant has failed to take any responsibility for his past, present or future conduct, but rather said it was all the fault of others in failing to come forward in order to help. There is no evidence whatsoever that the Applicant has ever formally sought help, or to take advantage of the opportunities the Australian community has offered him.

21. Overall, I give this consideration heavy weight in favour of non-revocation.

    OTHER CONSIDERATIONS:

    Legal consequences of the decision:

22. It was accepted that Australia has non-refoulment obligations in relation to the Applicant, who is the subject of a positive protection finding.

23. Accordingly, it was accepted by both parties that the Applicant is likely to remain in immigration detention for an indefinite period if his visa remains cancelled.

24. The Applicant has served his time in prison for the offences he committed, and the seriousness of likely indefinite detention cannot be underestimated. In particular, it is generally accepted that the risk of indefinite detention has adverse mental health consequences.

25. I note that the Applicant has not availed himself of the treatment available in detention, and referred to the possibility of self-harm if no one helped him. He made no reference to making any effort on his part to seek help.

26. I give his consideration heavy weight in favour of revocation.

    Extent of impediments to removal

27. It is accepted that there is no current risk of the Applicant being removed from Australia without his consent.

28. To the extent that this consideration is relevant at all, I give it neutral weight.

    CONCLUSION

29. In this case, although I have found that the legal consequences of the decision weigh heavily in favour of revocation of the delegate’s decision, I find that, on balance, when considered along with the other relevant considerations under Direction 99, the weight of evidence is firmly in favour of affirming the delegate’s decision.

30. It is to be hoped that the Applicant will make a personal commitment to become drug free and take advantage of whatever services may be available to him in detention, to help him in dealing with his drug addiction and any mental health issues. Taking personal responsibility and embarking on a positive treatment plan is the path that may lead to his release from immigration detention.

31. Accordingly, the reviewable decision of 9 August 2023 is affirmed.

I certify that the preceding 97 (ninety -seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 18 October 2023

Date(s) of hearing:	9 October 2023
Applicant:	In person
Solicitors for the Respondent:	Mr Aaron Taverniti