FTYC and Minister for Immigration and Border Protection (Migration)
[2016] AATA 1039
•19 December 2016
FTYC and Minister for Immigration and Border Protection (Migration) [2016] AATA 1039 (19 December 2016)
Division
GENERAL DIVISION
File Number
2016/5184
Re
FTYC
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Dr L Bygrave, Member
Date 19 December 2016 Place Sydney The Tribunal affirms the decision under review.
.................................[sgd].......................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – visa refusal – character test – substantial criminal record – whether visa refusal was the preferable decision – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(2A), 500(1)(b), 501(1), 501(6), 501(7)
Criminal Code Act 1995 (Cth) s 307.2(1)
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Do and Minister for Immigration and Border Protection [2016] AATA 390
LMYW and Minister for Immigration and Border Protection [2016] AATA 936
Veen v R [1979] HCA 7; (1979) 143 CLR 458Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
19 December 2016
INTRODUCTION
The applicant is a 37 year old female citizen of Cambodia.
The applicant arrived in Australia on 29 April 2010 as the holder of a Tourist (Class TR-676) visa. Upon arrival at Sydney International Airport, she was detained and interviewed by customs and immigration officials, and subsequently arrested by the Australian Federal Police on suspicion of smuggling drugs.
On 18 February 2011, the applicant was convicted in the New South Wales District Court for the offence of ‘Import/Export Marketable Quantity of Border Controlled Drugs or Plants’ and sentenced to seven years and six months imprisonment.[1]
[1] Exhibit G1 at G8.
On 14 January 2014, the applicant lodged an application for a Protection (Class XA) visa.
On 26 September 2016, a delegate of the Minister decided to refuse to grant the applicant a visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act).
In accordance with s 500(1)(b) of the Act, the applicant applied to the Tribunal for a review of the Minister’s decision on 29 September 2016.
The matter was heard in Sydney on 5 and 6 December 2016. The applicant attended the hearing in person; she had legal representation and was assisted by an interpreter of the Khmer language.
RELEVANT LEGISLATION, ISSUES AND CONSIDERATION
The power to refuse a visa
Pursuant to s 501(1) of the Act, the Minister may refuse to grant a visa if the applicant does not pass the character test as defined in s 501(6) of the Act.
Relevantly, s 501(6)(a) of the Act prescribes that a person will not pass the character test if they have a ‘substantial criminal record’. The phrase ‘substantial criminal record’ is defined in s 501(7) and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
The Minister refused the applicant’s visa on character grounds because she has a ‘substantial criminal record’.
Issues
The determinative issues for the Tribunal in this matter are:
(a)whether the applicant passes the character test as defined in s 501 of the Act; and
(b)if not, whether the decision to exercise s 501(1) to refuse the applicant’s visa is the preferable decision.
Does the applicant pass the character test as defined in s 501 of the Act?
The applicant was sentenced to seven years and six months imprisonment commencing on 29 April 2010 after pleading guilty to importing a marketable quantity of border controlled drug, namely heroin, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (Criminal Code).[2]
[2] Exhibit G1 at G9, p 74.
The applicant has been imprisoned for a period of more than 12 months and so has a ‘substantial criminal record’ as defined in s 501(7) of the Act. I am therefore satisfied that the applicant does not pass the character test as set out in s 501(6) of the Act.
Is the decision to exercise s 501(1) of the Act to refuse the applicant’s visa the preferable decision?
When considering whether to revoke the visa refusal decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in this country.
The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to refuse a visa under s 501(1) of the Act. The Principles state:
(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 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 consideration 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.
Informed by the Principles, I must take into account the primary considerations in Part B of the Direction in determining whether to refuse a non-citizen’s visa. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Part B also sets out a list of other considerations that must be taken into account; relevantly, this includes international non-refoulement obligations.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
The Government’s commitment to protecting the Australian community from harm at the hands of non-citizens is set out in cl 11(1) of the Direction and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the community should the applicant commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of the applicant’s conduct to date.
The applicant was convicted of importing a marketable quantity of a border controlled drug (heroin), and sentenced to seven years and six months imprisonment with a non-parole period of four years and six months.
There is no question that this was an extremely serious criminal offence. However, it is relevant to briefly outline events prior to the applicant’s offence in order to understand the context of her decision to smuggle drugs into Australia.
In the applicant’s written statement dated 10 November 2016, she described a difficult childhood growing up in a poor family in Cambodia. She left school when she was 13 years old and later worked as a hairdresser; she was her family’s main wage earner supporting her mother, husband and three children. The applicant had outstanding debts and insufficient money for food and medical expenses, and borrowed $2,000 from a man in Phnom Penh. When the applicant was later unable to repay the loan, she was told that her family would be hurt or she would have to smuggle illegal substances to another country if she did not pay back the money. The applicant asserted that she was initially unwilling to cooperate but later agreed when further threats were made against her family. She was also promised $10,000 if she was successful in smuggling the drugs into Australia. In April 2010, the applicant was taken to a house in Phnom Penh and made to swallow pellets and insert a package into her body ‘at gunpoint’. She then boarded a plane to Australia.[3]
[3] Exhibit A1.
The New South Wales District Court Judge stated the following in his sentencing remarks:
It is difficult to determine to what extent her judgment was impaired by the limitations in intellectual functioning though it would be artificial to exclude that fact in assessing her culpability. The offending may be best understood in terms of the combination of a number of pressures upon her, particularly financial pressures, and the inability, because of, amongst other things, her level of intellectual functioning to ultimately resist the approaches of those who recruited her.
That is not to say that this finding excuses the conduct of the offender. It does however provide the context in which she made the decision to act in the way she did.
There is nothing to suggest that the offender played any role in the planning or preparation of the importation or procurement of the drug. It is clear from the answers given in the recorded interview that she followed instructions given to her and that all arrangements for travel were made by others. She did not provide any finance towards the purchase of ticketing or any aspect of the importation.
The evidence would suggest that the offender’s role was that of a courier. This label however should not obscure the fact that the offender played a crucial role in the importation of a significant quantity of illicit drugs.[4]
[4] Exhibit G1 at G9, pp 87-88.
A Services and Programs Officer (SAPO) with Corrective Services NSW provided two written reports for the applicant. As the SAPO had the opportunity to observe the applicant while in prison, and given her position, I view these reports as authoritative. In a report dated 3 January 2013, the SAPO stated:
From my professional interactions with [the applicant] l have found her to be quietly spoken, polite and with dignity. When she has recounted her life experiences she does so expressing deep emotional pain. Her body language matches her words and she cries silent tears, those of a woman who has had very few positive messages about themselves to hold onto.
She has never denied her criminal offence and expresses remorse for her actions at every opportunity. The way in which she describes how she became involved with La (Criminal Group) it appears she was targeted and groomed within mind to commit the offences for her and the group.[5]
[5] Exhibit G1 at G10, p 98.
In a further report on 10 June 2015, the SAPO noted:
I observed her behaviour in gaol as compliant to all that was asked of her. There is no record of any misconduct in her time in custody. She has case notes that reflect Positive Work reports in the Logistics Warehouse as a Cleaner in regards to her performance and attendance. That she was extremely efficient and her work could not be faltered. She progressed to live in the Independent Living Unit which is an honour for offender’s whose behaviour deserves this.
…
She has told me that she wants to live a lawful life in Australia and believes she will be harmed if she returns to Cambodia.[6]
[6] Exhibit G1 at G28, pp 211-212.
I also have regard to a psychological assessment of the applicant dated 9 September 2010, which reported:
From the available information, [the applicant] appears to be a naive, vulnerable woman. Her involvement in the index offences appears to be as a direct consequence of her naive decision to obtain money through illegal means due to her financial destitution and debts. Her below average intelligence, limited education, and financial burdens are likely to have contributed to her desperation. Prior to the index offence however, [the applicant] described an organised family life and prosocial lifestyle. She has no criminal history, was not engaging in any substance use and has few risk factors for recidivism.[7]
[7] Exhibit G1 at G27, p 208.
At the Tribunal hearing, the applicant repeatedly expressed remorse for her offence. Although some of her evidence was confused and contradictory, she attempted to answer questions to the best of her ability. She was emotionally distressed and ashamed about both her offence and the ramifications of her conviction on her children in Cambodia.
I note that the applicant has no other criminal convictions in Australia, Cambodia or any other country.
I am satisfied that the nature of the applicant’s criminal offence is a matter of extremely serious concern. However, as I am required to examine the ‘applicant’s conduct to date’, I find that the seriousness of her offence must be partly mitigated by her circumstances prior to her decision to smuggle drugs, her remorse for her actions, and her faultless record since 2010.
In accordance with cl 11(1)(b), I must consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The applicant’s criminal history consists of a single, albeit extremely serious, offence. On the basis of this background, the District Court Judge’s sentencing remarks concluded that the applicant is unlikely to reoffend.[8]
[8] Exhibit G1 at G9, p 89.
A statement from a family friend who has known the applicant since 1991 observed that her behaviour was ‘out of character and truly shocking’ and there ‘must have been a major, motivational threat to [her family’s] wellbeing’ for her to smuggle drugs into Australia.[9]
[9] Exhibit G1 at G12.
The Tribunal also has statements from the applicant’s partner and two friends who she has met since being in Australia. These statements acknowledge the applicant’s criminal offence, describe her positive behaviour while in detention and note their support of the applicant if she is released into the community.[10]
[10] Exhibit A2, A3, A8 and G1 at G36.
Reports of the applicant’s behaviour while in prison and detention in Australia demonstrate that she has completed courses to read and write in English and all other available courses, and worked where this opportunity has been available to her.[11]
[11] Exhibit G1 at G10 and G14.
Based on the evidence before the Tribunal, as well as the applicant’s enduring shame for her behaviour, I accept the applicant’s contention that her likelihood of reoffending is low. However, I must balance this against the Minister’s submission that, given the serious harm caused by drug smuggling, any risk to the Australian community is unacceptable should the applicant reoffend.
The applicant arrived in Australia in April 2010 for the sole purpose of smuggling drugs. During her time in Australia, she has only lived in prison and the detention centre. She has no experience of living in the Australian community and her behaviour in this environment is untested. I therefore cannot be satisfied that the applicant would not reoffend should she be released into the Australian community and be faced with similar circumstances.
I have regard to Principles (5) and (6) in the Direction, noting that Australia has a low tolerance of criminal conduct by people who have been here a short time and/or who are visa applicants.
Giving appropriate weight to all the evidence before me, I find that the protection of the Australian community weighs against revoking the decision to refuse the applicant’s visa.
Interests of minor children in Australia affected by the decision
As the applicant does not have any children under the age of 18 years living in Australia, this primary consideration is not relevant to this matter.
The expectations of the Australian community
The Direction at cl 11.3(1) states that the Australian community expects non-citizens to obey the law. It also notes that the nature of the character concerns or offences may be such that the community would expect the person should not be granted a visa.
The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note the decision by the Tribunal in Do and Minister for Immigration and Border Protection, which states:
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done [emphasis added].[12]
[12] [2016] AATA 390 at [23].
I also reflect on a recent Tribunal decision that relevantly articulates the following views about rehabilitation:
The community also believes in the possibility of rehabilitation and redemption. That much is clear from s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets out the objectives of sentencing in the criminal courts. In doing so, the legislation articulates the approach of the common law that was discussed in cases like Veen v R [1979] HCA 7; (1979) 143 CLR 458 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Those objectives include punishment or retribution, expiation, incapacitation, deterrence, denunciation – and rehabilitation [emphasis added].[13]
[13] LMYW and Minister for Immigration and Border Protection [2016] AATA 936 at [56].
I consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectation must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.[14]
[14] Anaki and Minister for Immigration and Border Protection [2016] AATA 693 at [89].
The applicant’s criminal offence, the circumstances prior to her offence and her behaviour in prison and detention after the offence, has been described in my consideration of protection of the Australian community.
I am satisfied the Australian community would show some compassion for the circumstances that led to the applicant’s offence. It would also consider that her record of positive behaviour while in prison and detention demonstrates her rehabilitation and partially mitigates the seriousness of her criminal offence.
Nonetheless, the applicant’s sole reason for travelling to and currently being in Australia was to smuggle drugs, namely heroin, into the country. Given the substantial harm caused to the community from the distribution and use of illegal drugs, I am satisfied that the Australian community would not expect the applicant to be granted a visa.
On balance, I find that this third primary consideration weighs against the applicant.
Other considerations
While the primary considerations carry particular weight, the Direction states at cl 12 that other considerations also must be taken into account where relevant.
A relevant factor for consideration in this matter is international non-refoulement obligations. There is no evidence about the impact of refusing the applicant’s visa on any victims or Australian business interests, or on any immediate family members as described in cl 12.2(1).
The applicant provided submissions about the impact on the applicant’s partner and the applicant’s health and well-being if her visa is refused. The Minister also made submissions about considering ‘general deterrence’ in making my decision. I address each of these other considerations below.
The Minister has accepted that international non-refoulement obligations exist in relation to the applicant. The evidence before the Tribunal shows that the applicant may be at risk of harm or death if she were to return to Cambodia. The applicant’s husband was killed in a motorcycle accident two weeks after she was convicted in February 2011; the applicant told the Tribunal that the motorcycle’s brake-line was deliberately cut, which caused the accident and death of her husband.
As there are non-refoulement obligations, the applicant cannot be forcibly returned, deported or expelled to a place where she will be at risk of harm (see cl 12.1(1) of the Direction). Furthermore, pursuant to cl 12.1(5), the only alternate visa the applicant will be able to apply for is a Bridging R (Class WR) visa. This means that the consequences for the applicant if her visa is refused are either she:
(a)remains in detention for an indefinite period; or
(b)is issued with a bridging visa; or
(c)is removed to a country other than Cambodia.
I note that the applicant is unlikely to be accepted by another country given her criminal offence, and she has previously applied for and been refused a Bridging E (Class WE) visa under s 73 of the Act.[15] Unfortunately for the applicant, if her current visa is refused, the likely outcome for her is that she will remain in detention. This consideration weighs heavily in favour of the applicant.
[15] Exhibit G1 at G25.
Counsel for the applicant submitted that refusal of the applicant’s visa would have a detrimental impact on her partner. I note that the applicant met her partner while in detention in about November 2014. Her partner was released from detention in April 2015 and is currently residing and working in Australia on a bridging visa.[16] While he is neither an Australian citizen nor a permanent resident at this time, his current application for a Safe Haven Enterprise visa could provide a pathway to permanent residency in the future. I accept the applicant’s submission that refusing her visa would impact on her partner, although I place limited weight on this consideration.
[16] Exhibit G1 at G36 and A2.
The medical evidence before the Tribunal shows the applicant’s health and well-being is deteriorating. The applicant has been diagnosed with an adjustment disorder, anxiety and severe depression;[17] and also suffers from tuberculosis, epigastric pain, hair loss and dental issues. A psychological assessment report dated 14 December 2015 describes the applicant’s fears of threats to her life if she were to return to Cambodia and her heightened emotional distress due living in a detention centre.[18]
[17] Exhibits A4, A5, A6 and G1 at G26,
[18] Exhibit G1 at G31, pp 225-228.
Although the applicant is receiving treatment while in detention for her health issues, she presented at the Tribunal hearing as extremely distressed about her current situation. Her counsel observed that her on-going detention for an unknown period of time will further worsen her mental and physical health. I find this consideration weighs in favour of the applicant.
The Minister submitted that the Tribunal also consider general deterrence of similar conduct by others as being ‘of critical importance to the protection of the Australian community’.[19] Given the high level of harm that drug smuggling poses to the Australian community and the significant resources committed to preventing drug smuggling, I accept that the Australian Government has valid and legitimate reasons for wanting to send a message that people who attempt to import drugs into Australia should not expect to be granted the privilege of an Australian visa. I find this consideration weighs against the applicant.
[19] Respondent’s Statement of Facts, Issues and Contentions dated 21 November 2016 at [94].
Finally, I note that the applicant has three children currently living in Cambodia. Two of her children are under the age of 18 years; she has a daughter aged eight years and a son aged thirteen years. Her two younger children reside with their older sister and her boyfriend and their grandmother (the applicant’s mother), and the applicant told the Tribunal they were well looked after. When the applicant left Cambodia in 2010 to smuggle drugs into Australia, she clearly did not anticipate that she would not return to her children. The applicant indicated her desire for her two younger children to come and live with her in Australia if she is granted a permanent visa. While I accept that the reunion of the applicant with her children would be a positive outcome, I have insufficient evidence before me to consider this as a relevant factor in this matter.
CONCLUSION
This decision ultimately relies on the weight given to each of the primary and other considerations. I have already indicated the first and third primary considerations weigh against the applicant. The second primary consideration is not relevant.
In terms of the other considerations, Australia’s international non-refoulement obligations and the applicant’s current mental and physical health weigh in favour of applicant. The general deterrence of similar conduct weighs against the applicant. There is insufficient evidence to determine whether the potential reunion of the applicant with her children should be considered as a relevant factor. In balancing each of these other considerations, I am satisfied that they do not outweigh the primary considerations.
In these circumstances, it is not appropriate for me to revoke the refusal of visa decision. The decision under review must therefore be affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member ...................................[sgd].....................................
Associate
Dated 19 December 2016
Date(s) of hearing 5 and 6 December 2016 Solicitors for the Applicant A Mojtahedi, Immigration Advice & Rights Centre Solicitors for the Respondent M de Jongh, Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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