FTYC and Minister for Immigration and Border Protection (Migration)

[2018] AATA 20

FTYC and Minister for Immigration and Border Protection (Migration) [2018] AATA 20 (16 January 2018)

Division:GENERAL DIVISION

File Number(s):      2016/5184

Re:FTYC

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:16 January 2018  

Place:Sydney

The reviewable decision is set aside and remitted for reconsideration with the direction that, notwithstanding that the applicant does not pass the character test, the discretion under s.501(1) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.

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

Deputy President B W Rayment

Catchwords

MIGRATION – visa refusal – application for protection visa – applicant does not pass the character test – whether the discretion under section 501(1) should be exercised – risk of engaging in criminal conduct – non-refoulement obligations considered – decision set aside and remitted

Legislation

Criminal Code Act 1995 (Cth) s 307.2

Migration Act 1958(Cth) ss 36(1C), 195A, 197C, 499, 501(1), (7), 501E

Migration Regulations 1994 (Cth) r 2.12AA

Cases

BHKM and Minister for Immigration and Border Protection [2018] AATA 3

DMH16 v Minister for Immigration and Border Protection [2017] FCR 448

Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; (2016) 341 ALR 112; (2016) 154 ALD 104

Plaintiff M61 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14; (2010) 123 ALD 244

PRHR and Minister for Immigration and Border Protection [2017] AATA 2782

Secondary Materials

Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Deputy President B W Rayment

16 January 2018

1. The applicant arrived in Australia from Cambodia, on 29 April 2010, using a Cambodian passport, in which a visa to visit Australia had been issued in Phnom Penh on 19 April 2010. She was carrying concealed in her body a quantity of heroin in balloons. She was apprehended at Sydney Kingsford Smith Airport and customs officers handed her over to the Australian Federal Police (AFP). She was charged with importing a substance, being heroin, and the quantity being a marketable quantity, contrary to s.307.2(1) of the Criminal Code Act1995 (Cth). She was placed in custody on the same day. On 18 August 2010 she pleaded guilty to that charge, and was sentenced by Judge Zahra in the NSW District Court to imprisonment for seven years and six months dating from 29 April 2010, with a non-parole period of four years and six months, which expired on 28 October 2014.

2. On 28 October 2014, she was released from prison, having obtained the earliest release date from parole board. However, she was immediately taken into immigration detention at Villawood by the respondent’s officers.  She has now been there for more than three years, so that if one aggregates her prison term with her time at Villawood, she has now spent more than the seven years and six months deprived of her liberty.

3. Her behaviour in prison and in detention has not attracted any adverse attention. On the contrary, I have heard evidence from a visitor to the detention centre that she has been very helpful in introducing other persons in detention and her friend whom she met at Villawood speaks well of her. She has indicated remorse for her crime.

4. Unfortunately she has been the subject of unwanted sexual advances at Villawood and her mental health has deteriorated in detention. One cause of her depressed state is that she learned in 2011 that her husband in Cambodia was killed, she believes by the criminal gang which sent her to Australia with the drugs.

5. The question in these proceedings is whether the Tribunal should affirm or set aside the Minister’s decision refusing to grant her a protection visa. In turn, as I find below, the probable effect of affirming the Minister’s decision will be that she will be sent back to Cambodia, in breach of Australia’s treaty obligations, and in circumstances where she holds a well-founded fear that the criminal gang which supplied her with the drugs will kill her, and also possibly harm her three children. The effect of setting aside the Minister’s decision will be that, unless the Minister overturns the Tribunal’s decision to that effect, the Department must complete enquiries as to whether the applicant fulfils health requirements and the like, and assuming that she complies with such regulatory requirements, the applicant will be at liberty in this country and possessed of a valid protection visa. She intends in that event to live here, and to seek to obtain a visa for her children in Cambodia to enter as well.

6. The Minister has conceded in his written submissions that the return of the applicant to Cambodia would amount to non-refoulement, in breach of one or more of the treaties under which Australia is bound by non-refoulement obligations. The only circumstance in which there would be no breach of treaty involved in sending the applicant back to Cambodia, if the reviewable decision is affirmed, is if the Minister for Immigration and Border Protection personally decides to consider, and in due course, to grant, the applicant another visa.

7. The statutory basis for the exercise of discretion in this case is s.501(1) of the Migration Act 1958 (Cth) (the Act), which provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. There is no doubt that the applicant does not pass the character test, which is defined in s.501(7) to include any case in which the person has been sentenced to a term of imprisonment of 12 months or more. The discretion in s.501(1) is engaged. It is, in its terms, unconfined by the Act. The Minister has acted to make directions under s.499 of the Act, which, unless inconsistent with the Act, will bind delegates and the Tribunal. The current form of that direction is Direction 65 (the Direction).

8. The Direction nominates a non-exhaustive list of mandatory considerations which decision-makers must take into account. Its terms are published and I do not set them out in these reasons.

9. With respect to the refusal to grant a visa, Part B of the Direction nominates primary and other considerations. The primary considerations are the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community. I take those in turn.

   Protection of the Australian community

10. The Direction sets out that the protection question involves both the nature and seriousness of the non-citizen’s conduct to date and the risk to the community should the non-citizen commit further serious offences or engage in other serious conduct.

11. The applicant was, as noted above, sentenced by Judge Zahra and his remarks on sentence are included in the papers before me. Judge Zahra is highly experienced in the criminal law, both from his time as a public defender and the Senior Public Defender at the bar, and on the bench. His careful discussion of a number of matters required to be taken into account if relevant, discloses that both the sentence which was imposed and the non-parole period which was fixed, complied with the applicable statutory guidance.  It was fixed, in part, at least in order to deter others from committing the same offence.

12. Judge Zahra heard evidence from the applicant in relation to the sentence. He noted that she had a financial motive to commit the crime, having been promised a sum of money that would have seemed large to her if she succeeded. She was in poor circumstances. He also noted that the criminal gang who solicited her involvement made threats to her and were alleged to have kept her in a locked room prior to her departure from Cambodia.  He took into account that her intelligence was limited, which may have made her more vulnerable to both the threats and the coercion.

13. The applicant gave evidence before me. The Minister’s representative sought to stress an aspect of the recorded interviews which she engaged in with the then Customs and Border Protection Service and the AFP, an aspect which Judge Zahra did not mention. At first when apprehended and questioned at Sydney Airport, she denied that she was carrying any drugs within her body. Later in the same interview she made admissions. This was suggested by the Minister’s representative to show that she was not a law-abiding person because she did not immediately admit her guilt when questioned on her arrival.  She had just been apprehended for what she must have known was a very serious offence which was bound to result in her imprisonment. She must have been terrified. I regard the offence as a very serious one. Her participation in it entails that she was not a law-abiding person, to say the least. That is not altered or made significantly worse in my opinion by the initial lies which she told the authorities.

14. By contrast the applicant’s representative invited me to make findings other than those made by Judge Zahra which might diminish her responsibility for the offence which she committed. Judge Zahra stated that the risk of repetition of the offence, (or, no doubt, similar offences) was low and I accept that.  As to her motivation, the evidence of the surrounding circumstances placed before me is rather unsatisfactory. There was, as Judge Zahra remarked, a degree of compulsion to which the applicant was exposed prior to her departure from Cambodia. On the other hand, I am not prepared to find that she was unaware that she was fulfilling the role of a drug courier, and, whether or not she knew that heroin was involved, she must have appreciated that some such narcotic was involved in her role. It was not suggested that she had any role other than that of a courier in the criminal enterprise involved.

15. In the more than seven years which have elapsed since her offending, there has been no evidence of misbehaviour in detention, and others have spoken well of her conduct insofar as it came under their observation. I refer in more detail to that evidence below.

16. She committed one serious offence in her life.  Repetition of the offence or any similar offence is unlikely. Even though the risk of her repetition of the offence is low, this factor tends to favour affirmation of the reviewable decision.

    Best interests of minor children in Australia

17. There are no minor children in Australia whose interests are affected by the decision, and therefore the other primary consideration to be considered is the expectations of the Australian community.

    Expectations of the Australian community

18. It is clear that even though the applicant was apprehended at the airport, before her actions could injure the community, her crime would be regarded as abhorrent in our community. The risk of repetition is low, and circumstances have not permitted the applicant to demonstrate in the general community that she has been rehabilitated. I am not sure that her expressions of remorse would persuade the community to take any different view. There are three other matters to be considered.

19. The first is that, as I find below, the likely consequence of the affirming of the decision is that Australia will be put into breach of its treaty obligations. The principle set out in clause 6.3(1) stresses that Australia expects non-citizens entering this country to be law-abiding. Australians also expect and believe that this country will observe the law, not only under domestic law but under its treaties entered into with other countries. It would, in my opinion, be a matter of serious concern in the community if it was learned that the government had deliberately breached a treaty which it had entered into on behalf of this country. The treaty obligations under consideration in these proceedings are ones which, as is formally conceded by the Minister, would be breached in the case of the applicant even though she has committed a serious breach of the law.  That is, even though the applicant committed a serious crime, the treaty obligations oblige this country not to send her back to Cambodia.

20. Clause 12 itself confirms the existence of a government policy that Australia will not forcibly return a non-citizen to his or her country of origin if to do so would put Australia in breach of its treaty obligations. As is mentioned in BHKM and Minister for Immigration and Border Protection [2018] AATA 3, published 8 January 2018, the same policy was referred to in the Second Reading Speech of the Minister for Immigration and Border Protection in 2014 and in the Explanatory Memorandum to the amending statute. That policy would be regarded by the community as obviously correct in my opinion. And if, in the circumstances, it requires that the applicant be granted a protection visa, then it would follow in my opinion that the community would expect such a visa to be granted.

21. The second matter is that the applicant fears that she or she and her children may be the subject of vengeful killing by the criminal gang which gave her concealed drugs to carry here, and which, she believes, has already carried out a similar threat made against her husband, who was killed in Cambodia in 2011.  Sending someone to a place in which they have a well-founded fear that they (or they and other family members) will be put to death is hardly a consequence that this community would embrace, rather than put up with the continued presence of the applicant in this country, even though she originally arrived here as a drug courier.  She has, after all, now been dealt with in accordance with the sentence imposed upon her by the courts, and in substance, she has not been given the benefit of the non-parole period for which Judge Zahra provided.

22. The third matter is that what is important is the current circumstances of the applicant, and those circumstances are radically different from the moment when she stepped off the plane at Mascot in 2010. Her attempted crime was averted. She was apprehended and subjected to a sentence of imprisonment from which she did not appeal. She has now had more than seven years to reflect on what she did. At the end of her non-parole period she was immediately taken into immigration detention. While she was in prison, her husband was killed. She has been deprived of personal contact with her children, and has been reduced to making telephone calls to them from Villawood. She has been befriended by respectable members of the community who visit Villawood. She has impressed them as a person who should, in their opinion, be at liberty in the community. She has engaged their sympathy and that is a useful test of community reactions to her in my opinion.

23. The community expectations consideration favours setting aside the renewable decision.

24. The only expressly nominated “other” consideration which arises in the circumstances is the non-refoulement obligation.

    Non-refoulement

25. I have discussed this consideration very recently in the BHKM decision.   In this case, some more detailed submissions were made concerning the construction of Direction 65 and these reasons deal with those submissions as well as other matters also dealt with in BHKM.

26. In this case, the respondent concedes that it is probable that if the reviewable decision is affirmed, the applicant will be returned to Cambodia. I make that finding of fact in this case.  As in BHKM, I have concluded that the possibility of exercise by the Minister of his powers under s.195A so as to avoid the result that the applicant will be returned to Cambodia is remote and that the present application is the appropriate vehicle to consider non-refoulement obligations.

27. Paragraph 12.1 of the Direction provides:

    1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

    2The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

    3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

    4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

    5If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).

    6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

28. This application was previously heard in the Tribunal and the reviewable decision was affirmed by the assigned member. On appeal to the Federal Court, Wigney J set the earlier decision aside and remitted the matter to the Tribunal to be re-heard. That was because clause 12.1 states a proposition of law which is inconsistent with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCR 448 (decided in May 2017). I concluded the re-hearing in December 2017, shortly after decision in BHKM was reserved.

29. I have discussed the conflict between the clause and the decision in DMH16 in BHKM and do not repeat what I said there.  It is common ground in this case, there is an error of law embodied in the words at the end of clause 12.1(6) stating that if the protection visa is refused, because Australia will not forcibly return a non-citizen to their country of origin in breach of its non-refoulement obligations, the non-citizen will face the prospect of indefinite immigration detention. The judgment of North ACJ in DMH16 demonstrates that because of s.197C of the Act, the applicant would, in the absence of consideration being given by the Minister to the exercise by him of his non-compellable power under s.195A, and then in the absence of his granting some appropriate visa, be removed to Cambodia as soon as reasonably practicable.

1. On the third hearing day of this case, Mr Johnson SC appeared for the respondent and put argument in support of written submissions filed on behalf of the respondent dated 8 December 2017.

2. Those written submissions suggested that in the light of DMH16 the word “might” should be read into the second sentence of clause 12.1(2) so that clause 12.1(2) would then read:

   The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia might not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

3. It was also submitted that in clause 12.1(6) the final sentence should be taken to be omitted.

4. As I stated in BHKM, I am reluctant to read clause 12.1 by doing any surgery to it. That is because the intention which led to the introduction of the clauses as expressed is rather difficult to determine, and omitting words or changing words in the Direction may produce an unintended meaning.  Putting the matter another way, if the draftsman had appreciated what was later decided by North ACJ in DMH16, it is difficult to know how clause 12.1 would have been expressed.

5. Clause 12.1 as drafted reminds the decision-maker of a government policy, that the country will be observant of its international treaty obligations. The submissions of the respondent, if correct, would remove those reminders, and propose that decision-makers be told of something which amounts to the reversal of that policy by introducing the word “might” in the description of the policy, when the policy is actually in absolute terms.

6. The important thing, in my opinion, is that construing the Direction as a whole, the non-refoulement obligations are one mandatory consideration among others. It must follow that delegates and this Tribunal are required to consider all relevant mandatory considerations when exercising the discretion, and non-refoulement is only one such consideration. Whether or not that particular result was actually intended by the draftsman of clause 12.1 may be doubted, especially in the light of the government policy. But that is the result that has been achieved. Even to notice that the safety net which the draftsman had in mind, which would avoid non-refoulement in breach of a treaty, namely indefinite detention, involved an error of law, that does not, to my mind, justify a reading which would elevate the non-refoulement obligation to an instruction that would bind decision-makers to grant a protection visa in order to achieve such a result.  As in BHKM, these reasons proceed on the basis that the Direction validly makes the various considerations mandatory for decision-makers (see paragraph [9] of BHKM).

7. On the other hand, clause 12(1) and clause 12.1(1) make the non-refoulement obligations a mandatory “other” consideration and it will be the duty of decision-makers to take them into account when exercising discretions, in this case, the discretion arising under s.501(1).

8. If the non-refoulement obligation arises for consideration as a relevant matter, it must be given such weight as it deserves in the particular case. In this case, as in BHKM, I think that it should be given great weight.

9. In this case, as in BHKM, the respondent accepts that it is open to the Tribunal to treat the non-refoulement obligations as a powerful reason to set aside the reviewable decision.

10. In PRHR and Minister for Immigration and Border Protection [2017] AATA 2782, Deputy President Forgie received similar submissions to those made to me concerning the construction which should be given to clause 12.1. The Deputy President rejected the submission that the word “might” should be read into clause 12.1(2), but upheld the submission that the second sentence of clause 12.1(2) and the last sentence of clause 12.1(6) should be read out of the clause. The reasoning which led to that result was that in the Direction the second sentence of clause 12.1(2) states a matter of law, and as to the last sentence of clause 12.1(6), both parts of it state a matter of law, each of which is rendered incorrect by DMH16: See PRHR at [142] & [144]. With respect, I do not think that the words “Australia will not remove a non-citizen as a consequence of refusal of their visa application, to the country in respect of which the non-refoulement obligation exists” state a matter of law. Similarly, I do not think that the words in the last sentence of clause 12.1(6) “Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations” are a statement of law. Rather, they should be understood, I think, as stating a matter of policy for the information of decision-makers. The policy is uniform in my understanding. The words “as a consequence of refusal of their visa application” are not necessary to fully state the policy. This is made clearer, perhaps, in the final sentence of clause 12.1(6), where no such words appear. Compliance with s.197C may produce the result that Australia fails to comply with its policy, but Australia may still have the policy. What is necessary to achieve the result intended by the policy is that s.197C should not be engaged. In the case of the present applicant, that can be achieved only if the applicant obtains a protection visa, or if the Minister acts to grant her a visa under s.195A.

11. I give the consideration great weight for a number of reasons.

12. It is well established in this Tribunal that, when exercising discretions, its decision-making should be consistent with the dictates of good government. See the decisions of the Court and this Tribunal mentioned in BHKM at paragraphs [56]-[64]. Non-binding policy should be examined under that criterion, and it is appropriate to take it into account if the policy is one which is consistent with good government. For Australia to be observant of its treaties is clearly in that category. Non-compliance with a treaty may damage this country’s international reputation. Becoming a party to a treaty is something very deliberately done and the Refugee Convention has always been regarded as a very important treaty, to which this country has belonged for decades. This country has taken other nations including France and Japan before the International Court of Justice alleging breaches by them of other treaties.

13. Even if there were no such government policy, compliance with treaties is to be regarded as in the best interests of Australia, and in the national interest, and as part of good government. The national interest is the basis of regulation made under the Act as section 4 declares and as clause 6.1(1) of the Direction states.

14. The protection visa is the primary means provided by the Act for giving effect to protection obligations. The Minister’s powers under s.195A are quite different. They are non-compellable, and if consideration were given to their exercise, the Minister may decide on any ground not to exercise them. If there were a decision to grant a visa, its terms are entirely at large, and they may not prevent a breach of treaty. There is no evidence before me that the Minister will give consideration to the grant of any visa under s.195A, and no evidence that he proposes to do so. The applicant has been in detention since 2014, and no such action has been taken by the Minister.

15. Before s.197C was enacted, the High Court unanimously declared that indefinite detention of a non-citizen because of the possibility that the Minister may consider action under s.195A is illegal: See Plaintiff M61 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319; (2010) 272 ALR 14; (2010) 123 ALD 244. By contrast, the Court held, if the Minister had resolved to consider exercising his power under s.195A the detention power could lawfully be exercised while enquiries were made for that purpose.

16. Looking at the matter in the light of s.197C, and bearing in mind that the Minister has not indicated that he is giving consideration to the exercise of his powers under s.195A, in the event that the application for a protection visa is refused, the removal of the applicant to Cambodia would be required as soon as it was reasonably practicable to remove her. That makes it very urgent to give consideration to the mandatory consideration of non-refoulement at this time. Taking into account a possible future decision by the Minister to consider exercising his powers under s.195A, and deciding to defer making a decision about protection obligations on that ground risks allowing the matter to be overtaken by events.

17. Refusal of a protection visa prevents the applicant from applying for another visa, other than a Bridging R (Class WR) visa under s.501E of the Act and r.2.12AA of the Migration Regulations 1994 (Cth). (Clause 12.1(5), which also points out that, absent a determination by the Minister to determine that s.48A does not apply to the applicant, no further protection visa application may be made by her).

18. Regulation 2.12AA prescribes a Bridging R (Class WR) visa for the purposes of s.501E(2) (b), so that the applicant could apply for a Bridging R (Class WR) visa if the protection visa were not granted. The class to which it belongs is 070 (Removal Pending). A Bridging R (Class WR) visa is granted to a person in immigration detention whose removal is pending but whose removal is not for the time being reasonably practicable. There is nothing before me to indicate that the applicant’s removal is not reasonably practicable, and in any event the grant of such a visa will not prevent her removal in due course, so that a breach of international non-refoulement obligations will ensue in due course for such a person.

19. Thus in the event of refusal to grant a protection visa, the applicant will be unable to apply for any visa, the grant of which would avoid the consequence of breach of the non-refoulement obligations.

20. The powers under s.195A are non-compellable, and, as was said by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Le[1] at [61(f)]:

    [t]here is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention.

    [1] [2016] FCAFC 120 ; (2016) 244 FCR 56; (2016) 341 ALR 112; (2016) 154 ALD 104.

21. To sum up, this consideration strongly favours the setting aside of the reviewable decision.

    DECISION

22. Exercising the discretion taking into account all of the relevant mandatory considerations, it seems to me that the non-refoulement consideration strongly favours setting aside the reviewable decision, and the two nominated primary considerations of relevance tend in different directions.

23. The correct and preferable decision is to set aside the reviewable decision and to remit the decision for reconsideration with the direction that notwithstanding that the applicant does not pass the character test, the discretion under s.501(1) of the Act is to be exercised in her favour.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 16 January 2018

Date(s) of hearing:	30 October, 2 November & 20 December 2017
Solicitors for the Applicant:	Immigration Advice & Rights Centre
Counsel for the Respondent:	Mr G Johnson SC
Solicitors for the Respondent:	Clayton Utz