FSKY and Minister for Home Affairs (Migration) - [2018] AATA 4183

FSKY and Minister for Home Affairs (Migration) [2018] AATA 4183 (8 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4708
Re:FSKY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:8 November 2018
Place:Melbourne

The Tribunal affirms the decision under review
........................[sgd]....................................
Member
Catchwords
MIGRATION – cancellation of spouse visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised - two prior warnings - risk of applicant engaging in criminal conduct in Australia – consideration of ministerial direction – primary considerations – other considerations – decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)
REASONS FOR DECISION
Mr A. Maryniak QC, Member
8 November 2018
Introduction

The Applicant seeks a review of a decision of a delegate of the Respondent (Delegate) made on 16 August 2018 refusing to revoke the cancellation of the Applicant’s Class BC Subclass 100 (Spouse) visa (Spouse Visa). The Applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act1958 (Cth) (the Act).
The hearing was conducted on 31 October 2018 and then on 1 November 2018. The Applicant, the Applicant’s older sister SP (mostly via a Cambodian interpreter), the Applicant’s younger sister LP and psychologist Ms Elizabeth Warren, gave evidence at the hearing and were cross examined. Various witness statements were also tendered by the Applicant being exhibits A1 and A2 to A7, together with Ms Warren’s report dated 24 September 2018 and the Decision Record of Migration and Refugee Division dated 22 August 2018. The G-Documents and Supplementary G-Documents were tendered by the Respondent.
At the commencement of the hearing on 31 October 2018, when it was envisaged the hearing would be completed that day, the Applicant sought to introduce and rely upon a 20 paragraph statement of the Applicant which is now exhibit A8 (A8). This statement was filed with the Tribunal and served on the Respondent at 4:01pm on 29 October 2018. On 31 October 2018, reliance upon A8 was objected to by the Respondent because it had not been served within the two day time-frame prescribed under s 500(6) of the Act. The Tribunal agreed with the Respondent and ruled accordingly.
The hearing then unexpectedly continued for a second day. Once the evidence was closed and the matter had been heard, Counsel for Applicant sought to tender what is now A8, together with the other exhibits, as a ‘housekeeping matter’. The Tribunal does not consider the tender of new evidence once a hearing is essentially complete as ‘housekeeping’.
However, the Applicant then placed reliance upon the guidance from the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15 and sought to tender A8. On the basis that the Applicant was merely seeking to tender the document and was not making any application to re-open his case, the Tribunal allowed the tender. A8 was admitted into evidence in circumstances where the Respondent did not have the opportunity to cross examine in respect of its content. A8 thus has less evidentiary weight than the other exhibits in this matter, save for exhibit A5, the statement of HT. HT was not called by the Applicant and in the circumstances his statement is afforded less weight.
BACKGROUND
The Applicant is a 34 year old citizen of Cambodia who had a very difficult and unfortunate childhood. His father died when he was 6 years old and his mother died when he was 12. The Applicant and his sisters were then cared for by an uncle.
On 21 December 1998, aged 14, the Applicant arrived in Australia as a dependent on SP’s partner visa and lived with SP and her husband HT.
The Applicant’s teenage years in Australia were not easy because of the absence of his parents. He struggled at school, had difficulty learning English and had problems finding a peer group. The Tribunal accepts that the Applicant’s childhood and teenage years were very challenging.
In 2000, aged 16, less than two years after arriving in Australia, the Applicant made his first Court appearance (in Dandenong Children’s Court) for offences of recklessly causing injury and assault with weapon. No conviction was recorded. The Applicant had commenced smoking cannabis at this time. He commenced drinking alcohol one year later.
In about 2002 the Applicant commenced using heroin and was convicted of possession, use and trafficking heroin in October 2002.
In November 2002 the Applicant was convicted of three counts of armed robbery and aggravated burglary. The Tribunal notes the sentencing Judge’s remarks about the seriousness of these offences but also his remarks that:
The prosecution in your plea and in the plea of the other two men, Ho and Soy, accepted that you were not aware that one of the offenders was armed with a firearm, let alone intended to brandish that weapon whilst he was in the house, and you are sentenced on that basis.
Between 2002 and 2015 the Applicant was sentenced for criminal offences on a further 18 occasions. Those offences include a high number of drug related offences, burglary, theft and dishonesty offences (including aggravated burglary, armed robbery, motor vehicle theft), driving offences (including driving under the influence of drugs, dangerous driving, unlicensed driving and failing to render assistance after accidents) and offences for causing injury and for breaching Community Corrections Orders and bail.
Most recently, in November 2013, aged 30, the Applicant recklessly caused injury, failed to stop and render assistance and drove an unlicensed vehicle. The Applicant pleaded guilty and the eventual sentence was two years and six months imprisonment.
On 12 October 2005 the Applicant was notified by the then Department of Immigration and Multicultural and Indigenous Affairs that his visa may be liable for cancellation under s 501 of the Act on character grounds. On 28 February 2006 the Applicant was issued with a letter including the following:
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered. [Emphasis in original]
On 28 July 2009, the Applicant was again notified that his visa may be liable for cancellation on character grounds. On 8 February 2010 the Applicant was again spared cancellation of his visa, and given a second warning in similar terms including as set out above.
In apparent disregard of both the 2006 and 2010 warnings the Applicant continued to offend. His most recent offending was of a serious nature resulting in a sentence of two and a half years imprisonment being imposed in November 2015. The Applicant has been in prison and then in immigration detention since that time, hence his opportunity for re-offending has been non-existent.
However, the Tribunal does note that during 2014 and most of 2015 the Applicant was not charged with any offences, prior to his imprisonment in late 2015. It is apparent that the Applicant has been making genuine attempts to turn his life around since 2014. He has also stayed relatively drug free in both prison and detention since his latest imprisonment save for methadone and Avanza, as prescribed.
On 3 April 2018 the Applicant made an application for a protection visa. This Tribunal’s Migration and Refugee Division decided on 22 August 2018 that the Applicant is a refugee and therefore owed protection obligations. The Tribunal has regard to that earlier finding and it is not the task of this Tribunal to reopen that issue.
LEGISLATIVE BACKGROUND/ISSUES
Subject to the terms of the Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class[4] as do specific provisions of the Act.[5]
[1] A non-citizen is a person who is not an Australian citizen: Migration Act 1958; s 5(1).
[2] Migration Act 1958; ss 5 and 29(1).
[3] Migration Act 1958; s 30.
[4] Migration Act 1958; s 31(3)
[5] See, for example, s 36 in relation to protection visas.
The Minister must cancel a visa if satisfied that the Applicant does not pass the character test because of a ‘substantial criminal record’: s 501(3A) of the Act. The Applicant has a ‘substantial criminal record’ as he has been sentenced to a term of imprisonment of more than 12 months: s 501(7)(c) of the Act. The Applicant concedes he does not pass the character test.
The Minister and this Tribunal, may revoke the decision made under s 501(3A) if the Applicant makes representations and satisfies the Tribunal that there is ‘another reason’ why the original decision should be revoked: S 501CA(4).
Under s 499(1) of the Act, the Minister may give directions about the exercise of functions or powers under the Act and on 23 December 2014 Ministerial Direction 65 (The Direction) came into operation. The Tribunal is mandated by s 499(2A) to comply with the Direction in making its decision.
The Tribunal is required to apply the relevant considerations the Direction including the Preamble (Objectives, General Guidance and Principles) and the Primary and Other Considerations at Part C, as well as any other representations.
Clause 13 under Part C of the Direction sets out primary considerations to be taken into account when considering whether to revoke the mandatory cancellation of an Applicant’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Clause 14 of Part C provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on victims;
(d)Extent of impediments if removed.
These considerations are given their raison d’être by the principles set out in paragraph 6.3 of the Direction which are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen’s visa should be cancelled, or their visa application refused.
PRIMARY CONSIDERATIONS
In the analysis below the Tribunal has taken into account all of the evidence given during the hearing and all the documentary evidence tendered.
Protection of the Australian Community
The Tribunal is to have regard to the nature, extent and seriousness of the Applicant’s conduct and the risk to the Australian community should he re-offend or commit other serious conduct.
The Tribunal considers that the Applicant’s offending is objectively serious, involving offences committed over a sustained period which include threats and use of violence and drug proliferation. It follows that if such offending were repeated it would pose a significant risk of harm to the Australian community and this risk must be assessed in detail.
The Applicant submits, and the Tribunal accepts, that he has not offended since March 2014, and has made significant progress in dealing with his heroin addiction and improving himself generally in recent years whilst incarcerated.
The Applicant relies upon the evidence and report of independent expert, psychologist Ms Elizabeth Warren. Ms Warren had assessed the Applicant previously, in June 2009. On 21 March 2018 she conducted a telephone interview with the Applicant for approximately two hours. She was not directly requested to assess the chances of the Applicant re-offending and she had not considered this issue. She accepted her observations were constrained by the fact that the Applicant remained in a tightly disciplined custodial environment and that if he left that environment and attempted to build a productive life, such may lead to stressors that would exacerbate the risk of the Applicant relapsing.
Ms Warren observed, as did the Tribunal during the hearing, that the Applicant’s self- describing/reporting of his illicit drug dependence problem was honest, although vague when it came to dates. Generally, Ms Warren reported the Applicant had a better attitude since her previous assessment and had been training himself to adapt to situations by deliberate positive measures. His behaviour in Villawood has been very good.
Ms Warren also states that the Applicant is relatively drug free. She says:
He is not drug free as he takes around 2 mls of Methadone daily which he stated represents a reduction from around 40 mls when he was first detained. His continued reliance upon Methadone indicates psychological stance that he cannot function adequately completely drug free. This is not necessarily a negative but may be realistic and adaptive for the present time and into the foreseeable future. Compliance with a small opiate substitute such as Methadone can help facilitate prevention of relapse when combined with sound attitude and adherence to relapse prevent strategies.
She also states that for the month prior to the interview the Applicant has been taking the antidepressant, Avanza, but she was unable to tell the Tribunal how much of that medication the Applicant was taking or how often.
Ms Warren noted that the Applicant thought his prospects of returning to Cambodia would be bleak and stated:
Plainly there is no aspect of a return to Cambodia that is appealing and this will assist his current resolve and state of mind but will not necessarily be sufficient to prevent relapse and re-offence. [emphasis added]
Ms Warren states, and the Tribunal accepts, that the Applicant has had some change of attitude and now presents as an individual who has an enduring wish to be soundly functioning rather than acceptance or even embracing of illicit drug use as a viable lifestyle choice.
However, Ms Warren concludes:
It is not feasible to offer any form of numerical prediction of this man’s chances of containing his drug use as he hopes other than to note that he presents as continuingly motivated and hopeful to contain his drug use with an ideal eventual aim of abstinence. This examiner’s opinion is that based on historical factors his trajectory is considered more likely to be one of maintenance to reduction with eventual cessation of his drug use, rather than exacerbation.
In oral evidence, Ms Warren stated that the Applicant’s risk of relapse was on the ‘cusp’ of low to medium or just at the high end of low close to medium. Therefore, his risk of relapse to heroin use is not insignificant. To the extent that the Applicant maintains that his offending is entirely drug-related, it was submitted by the Respondent that there is at least a low to moderate risk of the Applicant re-offending and exposing the Australian community to more criminal behaviour. The Tribunal accepts this submission and finds accordingly.
The Applicant submits, and the Tribunal accepts, that he has been incident free and of pro-social behaviour for the past 56 months, both for the 20 months he was free and since he has been back in prison and now detention. However, of the 20 years he has been in Australia he has committed a substantial number of offences, his first Court appearance being in 2000, just 2 years after he arrived in Australia. The Applicant’s criminal offending has continued intermittently through a 14 year period of the 20 years he has been a non-citizen of Australia.
The Applicant’s sisters and SP’s husband have offered to accommodate him and provide him with employment. Similar offers were made by SP and her husband in 2005 and 2009 in respect to the two prior warnings received by the Applicant when consideration was being given to cancelling his visa under s 501 of the Act. Such steps and assistance were insufficient to prevent the Applicant from relapsing on those prior occasions.
True it is that the Applicant’s younger sister LP, now 27 years old will be able to assist in looking after the Applicant, as required. Further, the Applicant will be offered a full-time job in SP’s cafe in Carrum Downs which she has been running successfully for about three months now.
The Applicant’s sisters have generously and understandably proposed to look after the Applicant, accommodate him and give him full-time work. SP’s husband HT hopes the Applicant will be able to assist in their new café business and that they will expect the Applicant to be a reliable and diligent worker. The difficulty with that proposal is that there is no convincing evidence, on balance, which suggests that the Applicant will meet his obligations. The Tribunal prefers the evidence of an independent psychologist Ms Warren as discussed above regarding the chance of the Applicant relapsing.

The Tribunal accepts that the Applicant is now in a difficult position regarding the previous opportunities Australia has extended to him. Unfortunately, despite two prior and essentially ignored formal warnings, he has squandered such opportunities. The Tribunal finds that the Applicant has made substantial improvements to himself in recent times. However on balance, the evidence, including the nature and seriousness of the Applicant’s conduct for the majority of years he has been in Australia, when considered under clause 13.6.1 of the Direction suggests there remains risk, and a likelihood of significance, of the Applicant relapsing and causing further harm to the Australian community by engaging in further criminal conduct in the future under clause 13.1.2.
The Tribunal holds that on the evidence, this primary consideration weighs heavily in favour of a decision not to revoke the mandatory cancellation in light of the requirement to protect the Australian community from harm.
Best interests of minor children
The Applicant has two nieces and one nephew. The Applicant has never had parental responsibility for his minor nieces. His nephew is no longer a minor. The Applicant has been absent from their lives for substantial periods due to his previous drug taking and prior sentences of imprisonment.
The Tribunal finds that whilst it is in his nieces best interests for the Applicant to remain in Australia, the Tribunal places reduced weight upon this consideration as he has not been a constant in their lives to date.
Expectations of the Australian community
In light of the findings above, this consideration weighs against the Applicant. As noted in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Federal Court has held that this consideration is inextricably linked to the other primary consideration regarding protection of the Australian community. The expectations referred to in the Direction are those espoused by the Government in clause 13.3.
As discussed above, the Applicant has committed serious criminal offences for most of the years he has been in Australia, save for about the last four years. He has a substantial criminal history. Over the last four years, he has remained free from illicit drugs and has not committed any further offences. However, a real risk remains that he will re-offend in the future. Despite two prior formal warnings, he continued to re-offend.
In these circumstances the Australian community would not expect the Applicant to be permitted to remain in Australia, despite him facing real challenges if he is returned to Cambodia. The Respondent submitted, and the Tribunal finds, that this consideration militates in favour of affirming the Delegate’s decision.
OTHER CONSIDERATIONS
Extent of impediments if removed
The Applicant has not been back to Cambodia since he departed in 1998. He has limited ability to communicate in Khmer. He has an 87 year old uncle in Cambodia who is not in good health. The Tribunal accepts that his life in Cambodia, if returned, will be particularly challenging.
The Applicant may endure hardship and potential harm in Cambodia and it will be a significant task for him to re-integrate into a country now largely unfamiliar to him. There is a possibility that he will be homeless, at least initially, and could be arrested, detained and mistreated. Treatment options will be scarce in respect of his drug rehabilitation and Hepatitis C.
However, with the coping and other skills and training the Applicant has acquired in Australia, together with his English language skills, he will have a foundation and a chance to make a life for himself in Cambodia. The task is not insurmountable, particularly if his sisters provide some financial support to him, at least initially. The Applicant has some cousins living in Cambodia although he said during the hearing that he would be unlikely to contact them. His sisters could visit him in Cambodia and facilitate contact and provide the Applicant with assistance upon his return.
Non-Refoulement Obligations
The Respondent submits that as the Tribunal has remitted the Applicant’s protection visa application to the delegate for determination (the delegate has yet to determine the application); the application has yet to be ‘finally determined’ as defined by s 5(9B)(b) of the Act. Pursuant to s 198 of the Act, the Applicant is not liable for removal until his protection visa application has been finally determined.
The Tribunal appreciates there is a real prospect that the Applicant will be removed, subject to the delegate’s decision upon remittal of the protection visa application as the Applicant submits. The Applicant further submits that such removal will represent a breach of international law. Whilst that may be so, the Tribunal does not consider that this decision will represent such a breach. It involves a consideration of Australia’s domestic legislative framework under the guidance of Direction 65 in which international law obligations may be relevant but are not determinative. Non-refoulement is but one consideration amongst several which must be balanced accordingly.
On balance, in light of the findings made above in respect of the primary considerations, the Tribunal finds that the other considerations of international non-refoulement obligations and the extent of impediments if removed are outweighed by the primary considerations of protecting the Australian community and expectations of the Australian community.
Strength, nature and duration of ties
The strength, nature and duration of the Applicant’s ties to Australia are substantially impacted negatively by the history of his offending and illicit drug use. The longest he has ever had a full-time job was for about a 10 month period. There is little evidence of any positive contribution he has made to Australia, and to the extent it exists, it is far outweighed by his significant and extensive criminal conduct in Australia. The Applicant is not married or in a relationship and has no children. The Tribunal holds that this consideration is not outweighed by the primary considerations.
Impact on victims
No specific evidence was submitted that directly related to the impact on victims of the Applicant’s criminal conduct in Australia.
CONCLUSION
The Tribunal holds that, on balance, the primary considerations outweigh the other considerations in this matter in favour of refusal to revoke.
The correct or preferable decision is to refuse to revoke the mandatory cancellation of the Applicant’s Spouse Visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of

...............[sgd]...............................
Associate
Dated: 8 November 2018

Date(s) of hearing: 31 October 2018 - 1 November 2018

Date final submissions received: 5 November 2018

Counsel for the Applicant: Mr Min Guo

Solicitors for the Applicant: Refugee Legal

Counsel for the Respondent: Mr John Maloney

Solicitors for the Respondent: Sparke Helmore

Date(s) of hearing:	31 October 2018 - 1 November 2018
Date final submissions received:	5 November 2018
Counsel for the Applicant:	Mr Min Guo
Solicitors for the Applicant:	Refugee Legal
Counsel for the Respondent:	Mr John Maloney
Solicitors for the Respondent:	Sparke Helmore