FNSM and Minister for Home Affairs (Migration)
[2019] AATA 6896
•14 October 2019
FNSM and Minister for Home Affairs (Migration) [2019] AATA 6896 (14 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4460
Re:FNSM
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:14 October 2019
Place:Sydney
The reviewable decision made on 19 July 2019, being the decision of the delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident visa, is set aside.
In substitution, it is decided that the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa made under s 501(3A) of the Migration Act 1958 (Cth) should be revoked under s 501CA(4) of that Act.
..................................[sgd]................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – refusal of Resident Return (Subclass 155) visa – failure to pass the character test – substantial criminal record – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the applicant engaging in future criminal conduct – whether the applicant poses a risk of harm to the Australian community – Direction No. 79 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside
LEGISLATION
Mental Health (Criminal Procedure) Act 1990 (NSW) ss 24, 27
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197C, 198, 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
AXT19 v Minister for Home Affairs [2019] FCA 1423
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCA 500
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs [2019] AATA 93
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
NLGV and Minister for Home Affairs [2019] AATA 3646
NLJV and Minister for Home Affairs [2019] AATA 3846
Omar v Minister for Home Affairs [2019] FCA 279
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs [2019] AATA 757
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Department of Foreign Affairs and Trade, ‘Country Information Report on Bangladesh’, 22 August 2019
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
INTERNATIONAL MATERIALS
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
REASONS FOR DECISION
Senior Member Linda Kirk
14 October 2019
The Applicant who is a citizen of Bangladesh first arrived in Australia in December 1995.[1] Prior to its cancellation, the Applicant held a Class BB subclass 155 (Resident Return) visa granted 3 December 2014.[2]
[1] Exhibit R1, G11, p. 54.
[2] Exhibit R1, G12, p. 57.
The Applicant has a history of criminal offending commencing in 1998.[3] On 23 March 2018, the Applicant was convicted in the Penrith District Court and sentenced to two years and six months imprisonment for Aggravated enter dwelling with intent, Dishonesty obtain property by deception and Break and enter house etc steal value <= $60,000.[4]
[3] Exhibit R1, G5, pp. 37-45.
[4] Exhibit R1, G5, pp. 38-39.
On 4 May 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment at Long Bay Correctional Centre in New South Wales.
[5] Exhibit R1, G12, p. 57.
On 17 May 2018, the Applicant (by his then representative) made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]
[6] Exhibit R1, G14, p. 65.
On 2 November 2018, 4 March 2019 and 1 April 2019, the Applicant was sent notices of further information received by the Department regarding possible revocation of his visa cancellation.[7] The Applicant provided responses in the form of statements, submissions from his representative, several medical reports, and other accompanying material.[8]
[7] Exhibit R1, G32-G33, pp. 172-178.
[8] Exhibit R1, G18-G28.
On 19 July 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[9]
[9] Exhibit R1, G2, p. 3.
On 25 July 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.[10]
[10] Exhibit R1, G1, pp. 1-2.
The matter was heard by the Tribunal at a hearing in Sydney on 2 and 3 October 2019. The Applicant attended the hearing in person and was self-represented. The Applicant gave oral evidence at the hearing.
The material before the Tribunal consists of:
1)Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 13 September 2019;
2)G documents (G1 to G33 pages 1 – 178) – Exhibit R1;
3)Summons material (TB1 to TB7 pages 1 – 525) – Exhibit R2;
4)A bundle of documents tendered by the Respondent at the hearing in relation to the Applicant’s visa history – Exhibit R3;
5)Applicant’s statements – Exhibit A1.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(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.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paras 6.2 and 6.3 described as General Guidance and Principles respectively. The latter sets out the framework within which the individual considerations in Parts A, B and C of the Direction are to be taken into account by the decision-maker.
The first paragraph of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against … cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary consideration may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[11] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early life in Bangladesh and study in Ukraine
The Applicant was born in Dhaka in 1978 to a well off middle class family. He was the youngest of five children and had a trouble free childhood. His father was an executive engineer and his mother a medical practitioner. The family are devout Muslims. The Applicant attended an exclusive primary and secondary school where he performed well. He acquired an arts degree and became involved in political activities in Bangladesh. As a result he was imprisoned in 1991 and tortured. This brought shame upon the family who did not take steps to obtain his release.[13]
[13] Facts stated in judgment of Court of Criminal Appeal dated 2 September 2009 (Exhibit R1, G7, p. 42).
In his oral evidence the Applicant told the Tribunal that he went to the Ukraine to study medicine when he was aged 17.[14] He started drinking alcohol and would drink about half a bottle of vodka on weekends. The Applicant remained in the Ukraine for a period of 18 months and did not complete his studies.[15] He did not enjoy life in the Ukraine and he was robbed several times as there was a significant amount of crime in the country.[16]
[14] Transcript at p.17 and p. 84.
[15] Ibid.
[16] Transcript at p. 85.
The Applicant told the Refugee Review Tribunal that when he was at school he had engaged in sexual conduct with some male fellow students and he also did so when he was studying in the Ukraine. When he returned to Bangladesh in 1993 he had been afraid that if he revealed himself as a homosexual he would have problems. He said he feared this would have been used by his political opponents as a justification to cause him further problems, and that if he came to the attention of the authorities he would lose his political standing and his political companions would have nothing further to do with him. He had heard stories of people being assaulted and blackmailed by the police on account of their homosexual activity, and he had feared that he would have no prospect of obtaining a job if it were known widely that he was homosexual. His elder brother told him that he had heard reports that he was homosexual and had told him that he was a disgrace to the family and that they wanted him to leave Bangladesh.[17] The Applicant was persuaded by a gay friend, who had been living in Australia, to go to Australia with him. The Applicant obtained a visitor visa in September 1995.[18]
[17] Exhibit R2, TB7, pp. 491-492.
[18] Exhibit R2, TB2, p. 44.
Arrival in Australia
The Applicant arrived in Australia on 5 December 1995 on a Class TR subclass 676 Visitor visa.[19] He initially settled in Melbourne and then moved to Sydney where he and his friend had a two month relationship. The Applicant decided he would lodge an application for a visa on the basis of a de-facto relationship with his then partner. Three days after this decision, the Applicant’s partner was murdered in Kings Cross.[20]
[19] Exhibit R3.
[20] Exhibit R2, TB2, p. 45.
The Applicant’s family learned that he had been in a gay relationship in Australia and they asked him about this during a telephone conversation. He admitted to this relationship, following which his family completely cut off contact with him and refused to give him any financial assistance.[21]
[21] Exhibit R2, TB2, p. 45.
Following the murder of his partner and being cut off from his family, the Applicant began to drink heavily, up to 20 beers per day, for three or four years.[22] In July 2002 the Applicant told a social worker that he was very lonely and his lack of money prevented him from making more friends. He was entirely reliant on financial support from gay friends who paid the rent and most of his living expenses.[23] He was frustrated that he could not work due to his visa status, and he started to become very depressed.[24]
[22] Exhibit R2, TB2, pp. 45-46.
[23] Exhibit R2, TB2, p. 49.
[24] Transcript at p. 19.
The Applicant told the Tribunal that he started taking cannabis after his arrival in Australia and began using amphetamines in his early 30s.[25] He denied he was using drugs on a daily or weekly basis, although he agreed he told a psychiatrist in 2005 that he was so doing so that he would be put on medication for his mental illness.[26]
[25] Transcript at pp. 20-22.
[26] Transcript at pp. 23-25 (Reference to report at p. 454 of Exhibit R2).
Protection visa applications
On 23 January 1996 the Applicant applied for a Protection visa with the assistance of his then representative, Mr David Bitel (‘Bitel’). On 17 December 1996, Bitel wrote to the Department informing it that the Applicant wished to withdraw this application. The Applicant was asked during cross-examination whether he withdrew his first Protection visa application. He said he had no idea about this. Bitel had told him that his visa had been ‘cancelled’.[27]
[27] Transcript at pp. 19-20.
On 24 December 1999 the Applicant lodged another application for a Protection (Class XA) visa again assisted by Bitel. On 15 January 2000 a delegate of the Minister refused the application. The Applicant lodged an application for review with the Refugee Review Tribunal (‘RRT’) on 14 February 2000. The RRT affirmed the decision under review on 25 October 2002 and the Applicant sought review of that decision in the Federal Court . On 23 July 2004 the Federal Court ordered, by consent, that the decision of the RRT be quashed and that the matter be remitted to the RRT to be determined according to law. The RRT, differently constituted, again affirmed the decision under review on 8 February 2005 and the Applicant sought review of that decision in the Federal Court. On 17 March 2005 the Federal Court ordered, by consent, that a writ of certiorari issue quashing the second decision of the RRT and a writ of mandamus issued directing the RRT, differently constituted, to determine the Applicant’s application according to law.
On 19 April 2005, the RRT remitted the matter for reconsideration to the Department with the direction that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention. The RRT found that the Applicant has a well-founded fear of being persecuted for reasons of his membership of the particular social group of homosexuals in Bangladesh if he returns to that country now or in the reasonably foreseeable future. The RRT was satisfied that the Applicant satisfied the criterion in subsection 36(2) of the Migration Act for the grant of a protection visa. It further found that the Applicant is unwilling, owing to his fear of persecution, to avail himself of the protection of the Government of Bangladesh, and that he is not excluded from Australia’s protection by subsection 36(3) of the Act.
On 27 September 2007 the Applicant was granted a Class XA subclass 866 Protection visa.
On 2 December 2014 the Applicant applied for a Class BB subclass 155 Resident Return visa, which was granted on 3 December 2014.
Relationship with Bitel
The Applicant told the Tribunal that he started to become close to Bitel and they commenced a relationship and he began to support the Applicant. Bitel initially gave him pocket money, then expenses money and then quite large amounts of money.[28] It was at this time that he started to drink heavily as he could afford to do so.
[28] Transcript at p. 19.
The Applicant told the Tribunal that he and Bitel were in a relationship for 20 years and they lived together for 14 years. He was ‘spoiled’ by Bitel who would give the Applicant $1500 to $2000 per day or up to $20,000 per month for expenses.[29] Some of this money he would use to gamble at the casino.[30] He told the Tribunal that he saved quite a lot of this money, and he transferred approximately $90,000 to his sister in Canada to hold for him so that he did not spend or lose the money.[31] His plan was to use the money to open a restaurant. His sister has sent him some of this money which he has used for his expenses in Villawood.[32]
[29] Transcript at p. 86.
[30] Transcript at pp. 77-78
[31] Transcript at p. 79.
[32] Transcript at p. 79.
Bitel died of cancer on 20 August 2016. The Applicant told the Tribunal that he was left 60% of Bitel’s assets in his will or approximately $50,000. He was to receive this amount not in a lump sum, but on a weekly basis so he could support himself and pay his rent, food and entertainment. When he was in gaol he was receiving $200 weekly, but since he has been in Villawood he has not been receiving any payments.[33] He has not received any other money from the estate. Before he died, Bitel told the Applicant ‘You will have $700,000 - $800,000 … I will keep it for you for next 20 years for surviving in the community.’[34] The Applicant told the Tribunal that he has ‘had a little argument’ with Bitel’s brother, who is one of the executors of Bitel’s will. He is prepared to go to court if he has to do so, but he does not want to take any action at the moment as he has the money he needs to buy food etc in Villawood.[35]
[33] Transcript at p. 80.
[34] Transcript at p. 82.
[35] Transcript at pp. 82-84.
Employment
The Applicant told the Tribunal that he worked for Bitel’s firm, Parish Patience Immigration Lawyers (‘Parish Patience’) for approximately five years as a clerk as an interpreter. He was an interpreter for Bangladeshi clients and also did some Russian/Ukranian interpretation although he was not a qualified interpreter.[36] His other roles were clerical, doing photocopying and paperwork.[37]
[36] Transcript at p. 118.
[37] Ibid.
The Applicant said that he also worked as a chef in a café and later in French and Italian restaurants.[38]
[38] Ibid.
Criminal History
A Nationally Coordinated Criminal History Check dated 7 June 2018 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. [39]
[39] Exhibit R1, G5, pp. 23-26.
Court date Offence Sentence 23 March 2018
Penrith District Court
Aggravated enter dwelling with intent – knowing people there
Dishonesty obtain property by deception Break and enter house etc steal value <=
$60,000
Dishonestly obtain property by deception
Enter inclosed land not presc premises w/o lawful excuse
Larceny value <=$2000
Dishonestly obtain property by deception
Imprisonment (aggregate): 2 years and 6 months commence 06/01/2017 conclude 05/07/2019
Non parole period with conditions: 18 months commencing 06/01/2018
Taken into account on form 1 Taken into account on form 1
Taken into account on form 1 Taken into account on form 1
Goods in personal custody suspected being stolen
Taken into account on form 1
3 August 2016
Downing Centre Local Court
Common assault S32(3)(b) Mental Health Act dismissed conditionally 2 September 2009
Court of Criminal Appeal
Sexual intercourse without consent
Agg sex assault- threat to inflict abh victim with weapon
Leave to appeal granted: appeal dismissed 11 April 2008
Sydney District Court
Sexual intercourse without consent
Agg sex assault- threat to inflict abh victim with weapon
Qualified finding of guilt- limiting term: 3 years commencing 02/03/2008 concluding on 01/03/2011
Indicted for: qualified finding of guilt- limiting term: 8 years commencing 02/03/2008 concluding on 01/03/2016 referred mental health review Tribunal: order offender to go into custody pending any further order by that tribunal urgent psychiatric treatment & counselling & treatment for drug and alcohol addiction
30 March 2007
Downing Centre Local Court
Possess prohibited drug S 33 mental health act disch to care cond 12 Dec 2006
Sydney District Court
Agg sex assault- threat to inflict abh victim with weapon Referred to mental health review tribunal 28 October 2005
Downing Centre Local Court
Fail/ refuse to undergo breath analysis
Unlicensed for class, class c/r/lr/mr- 1st offence
Bond s10: 2 years
Fine: $250, court costs: $65, disqualification: 12 months commencing 28/10/2005
4 June 2003
Downing Centre Local Court
Possess prohibited drug Possess prohibited drug
Possess prohibited drug
Fine $400, Court costs: $59, drug to be destroyed
Fine $400, Court costs: $59, drug to be destroyed
Fine $400, Court costs: $59, drug to be destroyed
11 August 2000 Larceny value <=$2000 Bond s 9: 12 months Central Local Court
Larceny value <=$2000 Bond s 9: 12 months Break and enter building (steal) value
Imprisonment: 6 months suspended upon
<=$15000 enter bond s12: 6 months accept supv nsw prob service
Goods in personal custody reasonably
Bond s 9: 2 years accept supv nsw prob
suspected being stolen service Use false instrument with intent
Bond s 9: 2 years accept supv nsw prob
<=$2000 service Larceny value <=$2000
Bond s 9: 2 years supv nsw prob service
Larceny value <=$2000
Bond s 9: 2 years supv nsw prob service
3 February 1998
Central Local CourtLarceny value <=$5000 & <=$15000 Fixed term: 2 months commencing 04/01/1998 compensation: $895
In his representations to the Department and the Tribunal, the Applicant did not dispute the charges and convictions in the Nationally Coordinated Criminal History Check regarding his criminal convictions and sentences.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 23 March 2018 the Applicant was convicted in the Penrith District Court and sentenced to two years and six months imprisonment for Aggravated enter dwelling with intent, Dishonesty obtain property by deception and Break and enter house etc steal $60,000 <=. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has ‘a substantial criminal record’ as defined in s 501(7)(c) of the Act. The Tribunal is also satisfied that for the purposes of s 501(3A)(b) of the Act, the Applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the State of New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
Is there another reason why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Considerations
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality and the risk posed should he commit further offences, the Tribunal notes that the Applicant committed offending in 1998 shortly after he arrived in Australia. The Applicant’s offending includes a violent crime of a sexual nature and his offending is closely linked to his psychiatric condition and alcohol abuse.
Larceny and fraud offences
The Applicant’s early offending involved the following larceny and fraud offences:
· January 1998 – he stole $6,300 in cash from a fruit shop, where he was previously employed.[40]
· 10 March 2000 - whilst in a bar he stole a wallet and a handbag containing a mobile phone.[41]
· May 2000 – he entered a building with intent to commit a felony and stole a mobile phone.[42]
· 24 May 2000 - he stole a jacket valued at $129.95 from a shop and a knit top valued at $119.00 from another shop.[43]
· 29 May 2000 – he was found in possession of five travellers cheques which were reasonably suspected of being stolen.[44]
· 30 May 2000 - he used five travellers cheques which he knew to be false, with the intention of inducing another person to accept the cheques as genuine.[45]
[40] Exhibit R2, TB1, p.4
[41] Exhibit R2, TB1, pp. 8 - 11.
[42] Exhibit R2, TB1, pp. 18-20.
[43] Exhibit R2, TB1, pp. 35-36.
[44] Exhibit R2, TB1, p. 27.
[45] Exhibit R2, TB1, p. 26.
For these offences the Applicant was sentenced to a number of s 9 bonds and terms of imprisonment, which were suspended.
Other offences
On 23 April 2005, the Applicant drove a motor vehicle whilst unlicensed and refused to undertake a breath test in accordance with a direction by a police officer.[46] For this offence, the Applicant was given a s 10 bond, was required to pay a fine, and his licence was disqualified for 12 months.
[46] Exhibit R2, TB2, pp. 59-60.
On 9 August 2006, the Applicant was found in possession of cannabis.[47] On 30 March 2007 Magistrate Madgwick dismissed the charges under the Mental Health Act 2007, with the Applicant being discharged on the conditions that he be admitted to hospital for a two week program recommended by his psychiatrist, that he attend appointments with his psychiatrist thereafter and he accept prescribed medications.[48]
[47] Exhibit R2, TB2, p. 66.
[48] Exhibit R2, TB2, p. 81.
Sexual assault – August 2005
The facts of this offence as stated in the NSW Court of Criminal Appeal judgement dated 2 September 2009 are as follows.[49] On 26 August 2005, the Applicant was walking along Bourke Street towards Oxford Street in Darlinghurst at 4:30am. He was heavily intoxicated. The Applicant met and engaged the services of the victim who was working as a prostitute. The victim accompanied the Applicant to his home, where she was paid. The Applicant locked the door and both parties removed their clothes. The victim put a condom on the Applicant, which he removed and insisted, despite her protests, to have unprotected intercourse with her. He then produced a knife and had unprotected oral sex with her. The victim submitted due to fear that the Applicant would use the knife on her. The victim escaped, running out of the residence and down the street naked. The victim met a stranger who took her into his residence, calmed her down and called the police.
[49] Facts as stated in Court of Criminal Appeal judgment dated 2 September 2009 (Exhibit R1, G7, p. 42).
The Applicant was asked about these offences during cross-examination at the Tribunal hearing. He stated:
I went to Oxford (indistinct) hotel; I had some drinks, alcohol, there. And after, I walking back in my apartment corner of Oxford and Darlinghurst Streets. I met a prostitute who was wearing man clothes and makeup of the transsexual boys, like a man. I thought it was men and I ask to come my house to have sex for $100. I didn’t, he ask. I mean, I thought it was men. And I need you to came to my apartment and I paid $100 for service, same thing, look at my wallet and she look at my wallet and ask me to give some more money, when she see lot of money in my pocket. And she ask for - to give more money to pay to her to the services, as she will give a good services. And then, I did open the bottle of wine. I ask her for the bottle of wine, would you like to bottle of wine and I open bottle of wine and I gived her some wine and then, I have some wine with him. And I go to through to - I had the wine and after I really don’t want to go. I did track her down and I can remember that what I had done, I go through to it and I give her the wine and then, I told - I paid the money to her, sum of money and my extra money and then, she told me to - she start to opening the clothes, open the clothes, top and then, open - and when he was opening the bottom clothes and then, I find out is not he. I was still told he was transsexual and then, I find at the end it was a transsexual and it is a lady and I do not wish to have a sex with her. And I told her, I am engaged, I don’t want to having sex with you. And she wants to continue for the drinking and give it her what was the money. I hand it to - give it to her and then, she wants to have something to eat if it is possible. I did tell her, “Yes, I do have a bread, butter, some jam, some ham and cheese and what would you like?”. And she told me, “I like to have a jam and sandwich” and I have ham and cheese and I give her butter knife and the jam and toast and she was making herself and we get back to the drink again and then, we have 30 a little wine that was leftover there. And then, we pour out another glass and then, I went back to take my sandwiches from the toaster and came back for a drink and then, I had a - almost more than half a glass of drinks from the last part of the wine. And I do not feel well in few minutes times and I was feeling very drossy, very sleepy and afterward I did not understand what - when I went back to (indistinct) I do have a sex with her or I do real sexually assault her or anything I did it. I did remember when I wake up.[50]
… I can - honestly I can remember that and I - what I did I can clearly remember that and I don’t now after the drinking when I was drowsy, when I was feeling so sleepy and there is off - a paragraph I didn’t mention that. When she come in my place, she had a shot of heroin injected in my place that I didn’t mention in my - I forgot to mention that. And after that, all these things it was happen after she had a shot of heroin.[51]
I do remember, after the drink, that part, I can’t remember after that what was happen in there and I just remember police calling me, wake me up in the morning. I don’t know how they get it in, what happening and between that times and I was dead sleep, I wake up, police say to you, “Charged for the sexual assault” and they took me to the police station and I was so drowsy in there, so - fail to talk, or if I do talk, or if I do anything, it is I am absolutely drunk, absolutely sleepy. There is nothing I do know by myself to give such a statement or such a - what I was happening that night or incident. And I do know what I told to the police and I have been - it took me around more than a day and a half to recover by myself to get back to the normal.[52]
[50] Transcript at p. 42.
[51] Ibid.
[52] Transcript at p. 43.
During cross-examination the Applicant was asked about his recollection of the offence. He told the Tribunal that he cannot remember having sexual intercourse with the woman. He denied that he could have committed the offences, but does not remember doing so because of his alcohol intake and mental health condition. He also denied threatening the woman with a knife.
Psychiatric condition and drug and alcohol abuse
The Applicant saw Dr Shavtay Misrachi, Psychiatrist, a month before the commission of these offences on 28 July 2005. Dr Misrachi formed the view that the Applicant was suffering from a severe psychiatric disorder, probably a gradual onset of schizophrenia of the paranoid type. Dr Misrachi prescribed the Applicant anti-psychotic medication.[53] In his opinion, the Applicant’s condition probably had its onset in 2002 when it was reported he had started to develop auditory hallucinations and persecutory delusional beliefs and he ‘most probably developed a persistent psychosis which was undiagnosed’.[54] By July 2005, the Applicant:
was clearly psychotic and was most probably labouring under a severe mental disorder which affected every aspect of his life and in particular his judgment and insight into his condition.[55]
[53] Exhibit R2, TB3, p. 285.
[54] Exhibit R2, TB3, p. 291.
[55] Exhibit R2, TB3, p. 289.
Dr Misrachi commented on the Applicant’s use of drugs and alcohol to ‘self-medicate’:
His development of significant drug and alcohol problems was … his ineffective and unhelpful way of self-medicating his overwhelming negative affects. This is not an unusual response to such distressing symptoms. It is not unusual for patients who suffer from a significant mental disorder such as that of depression, anxiety or psychosis, utilising drugs and alcohol to self-medicate their symptoms.[56]
[56] Exhibit R2, TB3, pp. 289-290.
Dr Misrachi further reported that ‘it is not uncommon for those subjects labouring under a psychotic process not to remember events.’[57]
[57] Exhibit R2, TB3, p. 294.
On 12 September 2006 Dr Olav Nielssen, Psychiatrist, reported that the Applicant had developed a habit of drinking up to twenty standard drinks per night and he was taking amphetamines and ecstasy.[58] Dr Nielssen diagnosed the Applicant as having a Psychotic illness, probably Chronic Schizophrenia, probable Post-traumatic Stress Disorder and Alcohol Dependence and Abuse.[59] He wrote:
I note that [the Applicant] has previously been diagnosed with a range of other psychiatric disorders. However, psychotic illness usually emerges in the third decade and the information available suggests that he has experienced the onset of psychotic illness in the last two or three years.
I believe [the Applicant] is currently unfit for trial.[60]
[58] Exhibit R2, TB3, p. 254.
[59] Exhibit R2, TB3, p. 256.
[60] Ibid.
Dr Nielssen reported that the Applicant had a condition that ‘generally responds to treatment with antipsychotic medication and the removal of aggravating factors such as substance abuse.’[61]
[61] Ibid.
On 17 October 2006 Dr Stephen Allnutt, Psychiatrist, reported that the Applicant suffered from a chronic Psychotic Disorder, possibly Schizoaffective Disorder Schizophrenia and he considered the Applicant was unfit to stand trial. He wrote:
In my opinion the accused manifests symptoms of an active psychotic process characterised by a form of thought disorder (tangentiality, derailment and disorganisation in his thinking), auditory hallucinations and ideas of reference (a form of illusion).[62]
[62] Exhibit R2, TB3, p. 261
In his report dated 9 August 2006, Dr Michael Armstrong, Psychiatrist, reported that the Applicant had a chronic dissociative illness complicated by alcohol abuse.[63] He stated that the Applicant
decompensates into frank psychotic episodes … that is quite possibly harbingers of a slowly insidious paranoid schizophrenic illness.[64]
[63] Exhibit R2, TB3, p. 255.
[64] Ibid.
Dr Armstrong was of the opinion that the Applicant had a chronic psychotic illness, most likely to be Schizophrenia or Schizoaffective Disorder.[65] He concluded that the Applicant was not fit to plead, as he would be unable to give coherent evidence.
[65] Exhibit R2, TB2, p. 78.
Special Hearing and Mental Health Review Tribunal findings
On 11 April 2008 a Special Hearing of the District Court of NSW was conducted before a judge and jury on an indictment containing three counts. The Applicant was found to have ‘on the limited evidence available’ committed the offences Sexual intercourse without consent (penile/vaginal) and Aggravated sexual intercourse without consent.[66] The Court made a qualified finding of guilt and imposed two limited term sentences of three years and eight years with a referral to the Mental Health Review Tribunal. Judge Finnane found that the offences fell below the middle range of objective seriousness.[67] The sentences were imposed on the basis that the Applicant was an offender who was not fit to stand trial because he suffered from a mental illness that did not excuse the offence.[68]
[66] Exhibit R1, G7, p. 42.
[67] Exhibit R1, G7, p. 46.
[68] Exhibit R1, G7, p. 45.
On 30 May 2008 the Mental Health Review Tribunal determined pursuant to s 24(1)(a) of the Mental Health (Criminal Procedure) Act 1990 (NSW) that the Applicant was suffering from a mental illness.[69] On 5 September 2008 Judge Finnane ordered that the Applicant should, pursuant to s 27(1)(a) of the Mental Health (Criminal Procedure) Act 1990 NSW, be taken to and detained in a mental health facility.[70] On 2 September 2009, the NSW Court of Criminal Appeal dismissed an appeal against the severity of the sentence imposed.[71]
[69] Exhibit R1, G8, p. 48.
[70] Ibid.
[71] Exhibit R1, G7, p. 47.
The Applicant was imprisoned at the NSW Correctional Facility at Long Bay within the Forensic Hospital complex, and later at another Mental Health facility at Orange NSW, and subject to psychiatric treatment and supervision until the expiry of the term of his sentence.
During his detention, the Applicant was subject to periodic oversight and review by the Mental Health Review Tribunal. In February 2013, the Tribunal conducted a review of the Applicant and noted that he had engaged well with his treating psychiatrist and had been compliant with his medications. The Tribunal determined, based on recent psychiatric reports, the Applicant was fit to stand trial.[72] The NSW Director of Public Prosecutions however advised the Court it would not have the Applicant tried again and subject to a normal criminal trial.[73]
[72] Exhibit R1, TB6, p. 459.
[73] Exhibit R1, G19, p. 89.
Release from mental health facility
The Applicant told the Tribunal that following his release from the mental health facility in 2013 he returned to work at Parish Patience. He said that following his release he did not drink alcohol during the day, but would have a glass or two of wine with dinner once or twice a week on a Friday or Saturday.[74] He said that he did not touch drugs.
[74] Transcript at p. 61.
In March/April 2016, after he learned that Bitel had been diagnosed with cancer, the Applicant started drinking heavily again. He stopped taking Antabuse because he believed he did not need it any more.[75] He did not take any drugs.[76] Around this time, the Applicant had multiple presentations at the Emergency Department at the Prince of Wales Hospital ‘intoxicated with behavioural disturbance/ aggression/ threats of harming others’ and himself.[77]
[75] Transcript at p. 62.
[76] Transcript at p. 61.
[77] Exhibit R2, TB2, p. 97.
Common assault – April 2016
On 28 April 2016, the Applicant was charged with common assault. According to the NSW Police Facts Sheet, the Applicant approached an employee at Parish Patience and asked him for money that Bitel had agreed to give the Applicant. When the employee refused, the Applicant grabbed hold of his neck, pushed him back into his chair, and raised a corkscrew towards his face.[78] A witness told the Applicant to stop, which he did. The Police were called and the Applicant was charged with assault.[79]
[78] Exhibit R2, TB2, pp. 90-93
[79] Exhibit R2, TB2, p. 93.
The Applicant was questioned about this assault during cross-examination. He explained that Bitel had given the victim $5000 to give to the Applicant to buy a gold chain and a gold bracelet. When he refused to give it to him they argued and the Applicant grabbed his shirt collar. He denied he grabbed the victim’s throat.[80] At the time he was opening a bottle of wine and had a bottle opener in his hand. He agreed he had been drinking prior to the argument. He cannot remember raising the bottle opener to the victim’s face.[81]
[80] Transcript at pp. 62-63.
[81] Transcript at p. 63.
On 3 August 2016, Magistrate McIntyre of the Local Court of NSW dismissed the assault charge under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 for reason that the Applicant was found to be:
developmentally disabled, is suffering from a mental health illness, or is suffering from a mental condition for which treatment is available in a hospital but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 2007 … and it would be more appropriate to deal with [the Applicant] in accordance with the provisions of Part 3 of the Mental Health (Forensic Provisions) Act 1990 than otherwise in accordance with the law.[82]
[82] Exhibit R2, TB2, p. 101.
The assault charge was dismissed subject to the Applicant taking prescribed medications, and attending counselling and treatment in accordance with an Involuntary Drug and Alcohol Treatment (IDAT) program.[83]
[83] Exhibit R2, TB2, pp. 101-102.
The Applicant was admitted to the Herbert Street Clinic at the Royal North Shore Hospital on 18 July 2016. He was reported to have settled well into the unit and as wanting ‘to focus on abstinence from alcohol.’ He had agreed to trial a new medication for alcohol dependence and to resume medication to reduce his cravings for alcohol.[84] He attended a broad variety of treatment groups including relapse prevention and 12 steps groups including AA,[85] and he met with a gambling counsellor.[86]
[84] Exhibit R2, TB2, p. 97.
[85] Exhibit R2, TB6, p. 475.
[86] Ibid.
In a report dated 1 August 2016, Dr Glenys Dore, Consultant Psychiatrist, reported that the Applicant has had Chronic Paranoid Schizophrenia for many years, which had been complicated by Chronic Alcohol Dependence as well as intermittent use of methamphetamine and cannabis. She noted that his complex mental health conditions had contributed to the commission of his offences. She continued:
In terms of prognosis, [the Applicant] is currently engaging in a positive manner with the treatments being offered to him in the IDAT program. If he disengages with treatment and returns to misusing alcohol, methamphetamine and cannabis, the risk of reoffending will be high. If he can continue to follow the prescribed treatment plan and maintain abstinence from alcohol, methamphetamine and cannabis, his mental state is likely to remain stable and … he will be at low risk of reoffending.[87]
[87] Exhibit R2, TB2, p. 99.
Dr Dore noted that the Applicant’s partner was dying of cancer and had only weeks to live. She stated that the Applicant ‘will need considerable support and grief counselling to deal with this loss when this happens.’[88]
[88] Exhibit R2, TB2, p. 99.
Bitel died on 20 August 2016 while the Applicant was at the Royal North Shore Hospital but he was not informed by Bitel’s family. The Applicant absconded from the unit on 1 September 2016 but returned on 7 September 2016 after he was encouraged to do so by his barrister. He absconded again on 12 October 2016 and returned the following day. He was discharged from the unit on 18 October 2016.[89]
[89] Exhibit R2, TB6, p. 475.
Reaction to death of Bitel
The Applicant told the Tribunal that following Bitel’s death he did not receive any support and he began drinking heavily to numb his pain. He stated:
… I ask for a lot of people for their help to - and they - no-one has come forward to me help me and say anything such as “We do feel sad” or “We do feel any” - no intention of saying anything only the roughness (indistinct) words come out from the some people, I couldn’t believe they will tell me when my partner passed away - tell me - treated and says to me as a poof or sorts of that language they going to use for me and they did use that and some - the community people and they - I ask for their help and they told me to go and pray for the mosque, go and get married, become a good boy and then will come and see us or talk to us and it’s a lot of things was there and that (indistinct) is happening and I was - everything is making me go just like - I don’t know - I don’t know what to do it.
I thought was the whole world is on my shoulder and I don’t know which way I go - right - left - up - down and I was pain at that stage and I - for all the suddenly all this is happened, I (indistinct) to take chose as a - not drugs - I chose alcohol to … get rid of the pain for my - what I go through to it and that wasn’t I thought for will be there forever I will be kept drinking alcohol heavily and carry on with alcohol. That was a short time period and I did not know and it’s this for it was I go through grief and what has happened because alcohol took all my position and I really can explain you how what was exactly happening and that is still how I was feeling, how my mental health condition is happen and how the alcohol is affecting me to not understanding I was doing the wrong things and that I shouldn’t do it and I don’t - did not understand all this prospect of the I am doing the wrong things and I did keep drinking alcohol for to until I find out - get trouble in the law and then I realise about (indistinct).[90]
[90] Transcript at p. 71.
Break and enter offences – January 2017
The facts of the incidents that occurred on 4-6 January 2017 and resulted in the Applicant’s March 2018 convictions are described in the relevant sentencing remarks.[91] At approximately midnight on 4 January 2017, the Applicant entered the victim’s house by climbing through a window that had been left ajar. He took the victim’s wallet containing identification, bank cards and $90 in cash. A person sleeping in the house woke to the noise and saw the Applicant in the dining room with a hood over his head. The Applicant used the victim’s debit card to pay a $35.70 taxi fare, purchase cigarettes and Gatorade totalling $56.20, and attempted to pay for a further taxi fare of $84 which was declined.
[91] Exhibit R1, G6, pp. 27-37 and Exhibit R2, TB4, pp. 308-310.
At 11:15am on 6 January 2017, the Applicant was seen walking down the driveway of a property towards the rear of the building. He entered a neighbouring house by removing the flyscreen and forcing a window open. He stole an iPad, five pairs of earrings, three perfume bottles, three whiskey bottles and a wrist watch. The Police observed the Applicant leaving the property and found that his backpack contained the victim’s belongings and two other watches.
The Applicant was asked about these offences during cross-examination at the Tribunal hearing. He stated:
Look, I do not remember anything of - to break and enter. I do not have any sort of - I could not give you any answer of that. I do not know the answer. I did read the papers when they had been to the jail and I - I really don't know what was happened to me, how I could - I do probably do believe I do know them people in there or I - I don't know. I don't know exactly, or how it has happened and how I did it and what - what happened. I haven't got any clue. I tried to gain an - I tried to understanding to why I did break and enter, because I didn't have any problem of money, and that (indistinct) I was spending enough money to buy alcohol, and I do buy - I had enough money to buy food and I - why would I go to the someone's house to steal the money or do such a - take something from there? I really tried to understanding about that and I couldn't figure out what is it cost, and I really don't know. I was - I was drunk, and I was - I - I was drinking.[92]
…
I'm - I - that week, I hadn't been eating any - eaten any food for - I don't know how many - in a few days I was probably having something to eat, maybe one - not even one meal a day, or maybe a slice of bread or something - orange or something I do, having that times. I wasn't - couldn't get organised. I wasn't having any food and there was no food in my stomach and there was alcohol using, and it just killing me, my - all the (indistinct) and I - I was shaking, and that (indistinct) that week when I do work and (indistinct) that was the very hard times I did have for - since I had been to drinking alcohol in the past, your Honour.[93]
[92] Transcript at p. 88.
[93] Transcript at p. 99.
In his sentencing remarks, Judge Buscombe of the District Court of NSW assessed the level of objective seriousness of both offences ‘as being towards the lower end of the range’.[94] His Honour found:
[the Applicant’s] prospects for rehabilitation are reasonable, provided he is able to stop drinking and using prohibited drugs when released into the community and adhere to his medication.[95]
[94] Exhibit R1, G6, pp. 30-31.
[95] Exhibit R1, G6, p. 34.
Judge Buscombe noted the Applicant’s statements of his remorse and his early plea of guilty. His Honour further observed that the Applicant had committed the offences while intoxicated and, while this was ‘not a mitigating factor’, it did ‘provide some explanation as to how he came to commit the offences.’ The Judge found that the Applicant’s psychiatric condition was ‘not such as to support a finding that it was causally related to the offending.’[96] His Honour considered that overall, given the Applicant’s mental health condition, that there was ‘a basis for a finding of special circumstances.’ The Judge noted that the Applicant had been in custody since his arrest on 6 January 2017 therefore his sentence of two and a half years imprisonment with a non-parole period of 18 months commenced on this date, and the Applicant would therefore be released on parole on 5 July 2018.
[96] Exhibit R1, G6, p. 35.
The Judge considered two psychiatric reports tendered on the Applicant’s behalf. In his report dated 24 January 2018, Dr Gerald Chew, Consultant General and Forensic Psychiatrist, reported that at the date of the offences the Applicant had missed one dose of his prescribed medication. The Applicant told Dr Chew that at the time of the offences he had been drinking heavily and had been using prohibited drugs in response to the death of his partner. He was not taking the Antabuse medication he had been prescribed. Dr Chew reported that the Applicant’s schizophrenia was ‘relatively stable’ at the time of the offences and that his alcohol use may have greatly impacted on his ability to rationally make decisions and weigh consequences.[97] In his view, the Applicant’s prognosis was good, should he be able to control his alcohol and prohibited drug use and continue his treatment for his mental health condition, which ‘will significantly lower his risk of recidivism.’[98]
[97] Exhibit R1, G21, p. 101.
[98] Exhibit R1, G21, p. 101.
Immigration detention
In February and March 2019, the Applicant’s room at Villawood Immigration Detention Centre was searched. An amount of crushed white unknown powder and a NAB credit card and a quantity of unlabelled white tablets were found.[99] The Applicant was questioned about this during cross-examination. He said that the white powder was crushed tablets, being his medication as well as Panadol and/or Nurofen.[100]
[99] Exhibit R1, G29, p. 135.
[100] Transcript at p. 107.
Rehabilitation and remorse
In his statement dated 4 September 2019, the Applicant wrote:
I know I did mistake. I am so concerned about myself so shameful. I feel so sorry and guilty even I felt so shame to show my face to others what I done to the past. In past I have drug and alcohol. I did take few time drug. I don’t like drug alcohol is my main problem. Last 2 and half years in my prison time and detention centre gave me enough time to think about. I cannot touch alcohol never alcohol cause my all problem. I promise myself very deeply and strongly I will never touch alcohol. I will be working hard stay home after work do my regular routine and activity and save money for to buy a little café shop to start with.
(a) The nature and seriousness of the non-citizen’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
The Tribunal notes that in its April 2005 decision, the RRT accepted that the Applicant identified himself as a homosexual and that this evidence was supported by statutory declarations.[121] This Tribunal accepts, on the basis of the evidence before it, particularly the Applicant’s evidence of his two decades relationship with Bitel, that he is a homosexual man.
[121] Exhibit R2, TB7, p. 521.
The RRT also accepted that homosexual men in Bangladesh ‘are identifiable by a characteristic or attribute common to all members of the group, namely their sexual preference.’ Furthermore, ‘this characteristic or attribute distinguishes the group from society at large in Bangladesh, as evidenced by the societal prejudice against homosexuality.’[122]
[122] Exhibit R2, TB7, p. 522.
Based on the country of origin information referred to in paragraph 146 above, the Tribunal finds that homosexual men in Bangladesh are a particular social group who face a real risk or threat of serious harm, and that the Applicant cannot therefore consistently with Australia’s non-refoulement obligations under Article 33 of the Refugee Convention be returned to Bangladesh.
Having made this finding it is unnecessary for the Tribunal to consider whether the Applicant’s fears on return to Bangladesh for reason of his conversion to Christianity give rise to non-refoulement obligations. It is also unnecessary for the Tribunal to consider whether Australia owes non-refoulement obligations with respect to the Applicant under the ICCPR and CAT.
The Respondent contends that in the event that the Tribunal finds that Australia owes the Applicant non-refoulement obligations, then accepting the authority of DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576, it remains the case that the duty of the Minister to remove a person from Australia arises only if it is reasonably practical to do so. It submits that there are other possibilities to removal: (i) the Applicant may benefit from a favourable exercise of discretion by the Minister under ss 48B or 195A; (ii) he may be the subject of a residence determination under Division 7, Subdivision B of Part 2 of the Act; or (iii) he may be resettled in a third country.[123]
[123] Respondent’s SFIC [15].
The Tribunal notes that these ‘other possibilities to removal’ all depend on the exercise by the Minister of a non-compellable discretionary power which may or may not ensure that the Applicant is not removed to Bangladesh in breach of Australia’s non-refoulement obligations. Accordingly, and having regard to the legal consequences of a decision to affirm the delegate’s decision, the Tribunal finds that only revocation of the Mandatory Visa Cancellation Decision will ensure that the Applicant will not be removed to Bangladesh contrary to Australia’s non-refoulement obligations. It further will ensure that the Applicant is not placed into immigration detention while he makes an application for a Protection visa which may or may not be granted.
For these reasons, the Tribunal finds that this other consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
(b) Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction states:
1)Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has resided in Australia for the best part of 24 years. He was in a long term relationship which ended when his partner died in 2016. He was employed as a chef and later as a clerk with Parish Patience.
The Applicant does not have any family in Australia and has indicated that his friendship network has waned due to his mental health issues. His two surviving siblings, a sister and a brother live in Canada and the United States respectively.
The Respondent acknowledges that the Applicant has some ties to Australia, but contends that little weight should be given to this factor in circumstances where the Applicant’s contribution to the Australian community is limited and where the Applicant began offending very soon after his arrival in Australia.
Having regard to paragraph 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant has resided in Australia for some 24 years, being the majority of his adult life. The Applicant considers Australia his home and he no longer has a connection to Bangladesh where he spent the early years of his life. Having regard to paragraph 14.2(1)(a)(ii), while the Applicant has spent some time contributing to the Australian community through periods employment, this contribution has been limited and sporadic.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant does not have strong ties to Australian citizens or to persons who have a permanent right to remain.
For these reasons, this other consideration weighs marginally against the revocation of the Mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration was working as a chef, interpreter and a clerk. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to Bangladesh.
(d) Impact on victims
Paragraph 14.4(1) of the Direction states:
1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision. Accordingly, this consideration is of neutral weight.
(e) Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant claims that he would be unable to get the same treatment for his mental health condition if he were to return to Bangladesh.[124] In addition, he claims that he does not have any family members willing to support him socially, medically and financially in Bangladesh.[125] The Respondent contends that there is nothing before the Tribunal to suggest that the Applicant would not receive a level of healthcare commensurate with that available to other citizens of Bangladesh.[126]
[124] Exhibit R1, G18, p. 85.
[125] Exhibit R1, G27, p. 119 and Exhibit A1.
[126] Respondent’s SFIC at [56].
In relation to the considerations in paragraph 14.5(1) the Tribunal finds that living standards in Bangladesh will be less favourable to those in Australia. Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 41 and has the skills to find employment as a chef or possibly as an interpreter in Bangladesh. Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take him a considerable amount of time for him to readjust to life in a country in which he has not lived for most of his life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to the welfare benefits of Bangladeshi citizens including health care and social services. However, on the evidence before it, the Tribunal cannot be satisfied that the Applicant will be able to access treatment and support to address his drug and alcohol addiction and the medical treatment and medication he requires for his psychiatric condition. The Tribunal finds that the impediments the Applicant will experience on his return to Bangladesh are significant, particularly when considered alongside the real risk of significant harm he will face for reason of his homosexuality.
On balance, the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
The Tribunal finds that Primary Consideration A weighs marginally against the revocation of the Mandatory Visa Cancellation Decision. The Applicant’s offences, particularly the sexual offences, are serious, and although the risk of him re-offending is low if he continues his treatment and medication for his psychiatric illness and maintains his abstinence in relation to drugs and alcohol, his past history indicates there is some likelihood he will relapse and re-offend.
Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision for reason that whereas the Applicant’s offences, particularly the sexual offences are serious, the circumstances of their commission, specifically at a time when the Applicant had only been recently diagnosed with and prescribed medication for a psychiatric illness are such that the expectations of the Australian community are not necessarily that he should no longer holder a visa entitling him to remain in Australia.
In regard to the relevant Other Considerations, the non-refoulement obligations owed by Australia to the Applicant and the legal consequences which follow weigh heavily in favour of the revocation of the Mandatory Visa Cancellation Decision as does the consideration of the impediments that the Applicant will face on return to Bangladesh.
Accordingly, having considered all relevant Primary and Other considerations in this matter and the appropriate weight to be attributed to them, informed by the Principles in paragraph 6.3 of the Direction, the Tribunal is satisfied that the non-refoulement obligations outweigh the Primary and Other considerations that support the non-revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the decision to refuse to revoke the Mandatory Visa Cancellation Decision must be set aside.
DECISION
The reviewable decision made on 19 July 2019, being the decision of the delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident visa, is set aside.
In substitution, it is decided that the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa made under s 501(3A) of the Migration Act 1958 (Cth) should be revoked under s 501CA(4) of that Act.
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.................................[sgd].............................
Associate
Dated: 14 October 2019
Date(s) of hearing: 2 and 3 October 2019 Applicant: In person Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
Key Legal Topics
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Immigration
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Administrative Law
Legal Concepts
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Procedural Fairness
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