FYVY and Minister for Immigration and Border Protection (Migration)
[2018] AATA 671
•27 March 2018
FYVY and Minister for Immigration and Border Protection (Migration) [2018] AATA 671 (27 March 2018)
Division:GENERAL DIVISION
File Number: 2018/0084
Re:FYVY[1]
[1] A pseudonym has been adopted in these proceedings to comply with the Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:27 March 2018
Place:Sydney
The Tribunal affirms the reviewable decision dated 5 January 2018 not to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
..........................[sgd]..............................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – global special humanitarian visa – failure to pass character test – substantial criminal record – applicant sentenced to term of imprisonment of 12 months or more – whether there is another reason to revoke the mandatory cancellation – Ministerial Direction no 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961
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
Mrs J C Kelly, Senior Member
INTRODUCTION
FYVY, the Applicant, is seeking the review of the decision dated 5 January 2018 by the delegate of the Minister for Home Affairs (the Respondent) not to revoke the mandatory cancellation of his Global Special Humanitarian visa (the visa).
The visa was cancelled on 18 August 2016 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as a consequence of the Applicant’s conviction in the Melbourne Magistrate’s Court on 29 September 2015 for the offences of Prohibited person possess a firearm, Robbery, and Criminal damage (intent damage/destroy), and sentences totalling 17 months imprisonment.
The Applicant made representations requesting revocation of the mandatory cancellation of the visa on 1 September 2016. On 8 January 2018, the Applicant received a letter from the Department notifying him of the decision of the delegate not to revoke the cancellation of the visa.
The Applicant filed his application for review of that decision in the Tribunal on 9 January 2018.
BACKGROUND AND MIGRATION HISTORY
The Applicant is a citizen of South Sudan. He has resided in Australia since arriving on 15 July 2003 aged 15, holding the visa. He has not left Australia during that period of almost 15 years.
THE LAW AND THE ISSUES
Subsection 501CA(4) of the Act provides that the Minister may revoke a decision under s 501(3A) 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.
The Applicant does not dispute the fact that he does not pass the character test set out in section 501(6) of the Act. That is because he has a substantial criminal record as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more.
He submits that there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). That is the issue for the Tribunal to determine. If satisfied that there is another reason, the Tribunal must revoke the cancellation. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: see Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, at [38].
Direction 65
In exercising the discretion under s 501CA(4) the Tribunal must follow the direction given by the Minister under s 499 of the Act, that is, Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under S501CA (Direction 65). The Preamble of Direction 65 contains the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task.
Part C of Direction 65 is relevant in this case, where the Tribunal has to determine whether to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
There are three primary considerations to be taken into consideration when deciding whether to revoke a mandatory cancellation of a visa: see Direction 65 at para 13(2)
(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.
Other considerations must also be taken into account where relevant: see Direction 65, at para 14(1). The 'other considerations' include:
(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.
Direction 65 sets out detailed guidance in relation to each consideration. There was no evidence suggesting that the consideration “impact on Australian business interests” is relevant in this case. The Tribunal therefore has not considered it.
THE APPLICANT’S CRIMINAL HISTORY
Following is a summary of the Applicant’s criminal history taken from his National Police Certificate, beginning with his first offence dealt with in court.
Court Date
Offence
Sentence
6 Aug 2004
Common assault
6 month good behaviour bond; supervision by Dept of Juvenile Justice
18 Apr 2005
Drive/Rider state false name or address
Never Licensed person drive vehicle on road – 1st offence
Dismissed s 33(1)(a) with caution
Dismissed s 33(1)(a) with caution
10 May 2005
Break and enter building (steal) value < $15000
Possess prohibited drug
Possession of equipment for administering prohibited drugs
Custody of knife in public place
12 months’ probation, supervision by Dept of Juvenile Justice – including counselling
12 month good behaviour bond
12 month good behaviour bond
12 month good behaviour bond
14 Oct 2005
Robbery armed with offensive weapon cause wounding/gbh
Aggravated assault with intent to rob and inflict abh
18 months’ imprisonment suspended on entering good behaviour bond and supervision by Dept of Juvenile Justice
18 months’ imprisonment suspended on entering good behaviour bond and supervision by Dept of Juvenile Justice
18 Oct 2005
Break and enter building (steal) value < $15000
9 months’ probation; supervision by Dept of Juvenile Justice
11 May 2006
Call up for Robbery armed with offensive weapon cause wounding / gbh
Call up for Aggravated assault with intent rob and inflict abh
1 year 6 months’ imprisonment
1 year 6 months’ imprisonment
15 May 2006
Enter enclosed land not presc premises w/o lawful excuse
Robbery
12 month good behaviour bond
2 year control order; release subject to supervision by Dept of Juvenile Justice, including any residential rehabilitation program
16 Aug 2006
Shoplifting
1 month imprisonment
20 Dec 2006
Have custody of an offensive implement in public place
12 month good behaviour order; obey all reasonable directions including drug and alcohol rehabilitation
26 Nov 2007
Assault occasioning actual bodily harm
Call up for Have custody of an offensive implement in public place
6 months’ imprisonment, reduced to 5 months on appeal
6 months’ imprisonment, reduced to 5 months on appeal
7 Oct 2008
Fail to hold valid ticket for train travel
$150 fine
26 Nov 2009
Aggravated robbery
3 years’ imprisonment; possess prohibited drug taken into account on form 1
29 Sep 2010
Not pay train fare and hold valid ticket
$200 fine
29 Jun 2011
Custody of knife in public place – subsequent offence
1 month imprisonment
27 Feb 2012
Not pay train fare and hold valid ticket
Fail to state name and address when directed
$200 fine
$100 fine
4 Apr 2012
Fail to appear in accordance with Bail Granted undertaking
Behave in offensive manner in/near public place/school
Dismissed s.10
$150 fine
11 Sep 2012
Contravene direction or requirement
No conviction recorded, $250 fine
17 Sep 2012
Contravene direction or requirement
No conviction recorded, $440 fine
10 Oct 2012
Common assault
Fail to appear in accordance with Bail Granted undertaking
8 weeks imprisonment
1 month imprisonment
19 Sep 2013
Robbery
Demand property with menaces with intent to steal
Dismissed
2 year good behaviour bond Robbery taken into account on form 1
12 Dec 2013
Armed with intent commit indictable offence
9 months imprisonment
28 Aug 2015
Contra-fam viol safety – int harm/fear unlawful assault state false name when requested
Deal property suspected proceed of crime
Aggregate 95 days imprisonment
Aggregate 95 days imprisonment
29 Sep 2015
Prohibited person possess firearm
Robbery criminal damage (intent damage/destroy)
6 months’ imprisonment
Aggregate 11 months’ imprisonment
2 Feb 2017
Call up for Demand property with menaces with intent to steal
9 months 15 days’ imprisonment
THE PRIMARY CONSIDERATIONS
The protection of the Australian community
In relation to the consideration ‘protection of the Australian community’, cl. 13.1(2) of Direction 65 requires the Tribunal to consider the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. Direction 65 specifies factors to be taken into account in respect to each of those matters.
The nature and seriousness of the conduct
It is clear from his criminal record set out above, that the Applicant has a history of serious offences, that is, offences involving violence. The first offence dealt with by a court was the Common assault dealt with in the Children’s Court on 6 August 2004. That may not have been the first offence he committed. On 14 October 2005, Norrish J in the New South Wales District Court dealt with offences committed on 18 April 2004 and 9 May 2004. The following is taken from those remarks.
·In “the early hours” of 18 April 2004, the Applicant grabbed the victim and demanded money while he was carrying out a transaction at an ATM. When the victim responded that he did not have any money and turned away from the Applicant, a brief struggle followed. The Applicant punched the victim on the left side and then stabbed him with a knife. He suffered a minor injury to his left lower chest. The Applicant was arrested on 3 August 2004 while on bail for the offence committed on 9 May 2004.
·In “the early hours” of 9 May 2004, the victim boarded a train to travel to work. The Applicant boarded the train, approached the victim and demanded money. When the victim said that she had no money, the Applicant took a knife out of a bag he was holding and threatened to kill her if she did not give him her money. She agreed and started to take the wallet out of her bag. The Applicant grabbed the bag, a struggle ensued and that during which the victim suffered a minor laceration to her left hand.
His Honour commented in respect of the victim of the 9 May office, “… like the other victim, I am sure she was greatly affected by the offender’s violent conduct”.
The Tribunal has no records before it of proceedings dealt with in the Children’s Court.
The following is derived from the sentencing remarks made by Forno J at the District Court of New South Wales on 26 November 2009. The offence of aggravated robbery was committed on 26 October 2008 and involved corporeal violence to the victim. Offences committed on the same day and to be taken into account were a robbery in company, involving $150 cash and a mobile phone being taken, and possession of prohibited drug, being 3.05 grams of cannabis.
The agreed facts were as follows. The victim was walking towards a railway station when the Applicant approached, carrying a bottle in a brown paper bag in his right hand. The victim could smell alcohol on the Applicant. The Applicant blocked the victim’s path. The victim felt immediate fear and intimidation. The Applicant grabbed the victim’s silver necklace and said “you will give me this necklace”. It was handed over and the Applicant said “I don’t want your necklace” and handed it back. The Applicant then said that he was hungry and demanded money. The victim said that he did not have money but that he would withdraw money from the ATM. After a further exchange, the Applicant placed his hands in the victim’s pockets where he located the victim’s mobile phone and took it. The Applicant grabbed the victim by the left arm near the elbow and pulled him forcefully towards the road which caused the victim to twist his right ankle causing immediate pain. The Applicant dragged the victim across the street towards the shop. The victim felt scared of the Applicant because he had the bottle in his hand and was a very tall man although not thickset. Two independent people walked towards them and assisted the victim. The Applicant left.
The robbery in company offence occurred later on the same day. The victim had purchased a phone card with the intention of calling overseas from a phone box. He had three $50 notes left in his wallet. He made a phone call and then observed five or six men walking in the middle of the road. They appeared to be affected by alcohol. One of those individuals approached the victim, who thought that the person wished to use phone and said that he would not be long. At some point the Applicant grabbed the victim’s mobile phone from his hand and said “I don’t need your phone, I need money” but did not return the phone. The Applicant then said “I’m very angry. How much money you have?” The victim responded that he didn’t have any and that he could give the Applicant some from the ATM. The Applicant replied that he just wanted the money the victim had. The Applicant punched the victim in the stomach and through about 3 to 4 punches with a closed right fist. The victim attempted to move his body away and was just about to escape when the offender kicked his right ankle which caused immediate pain. The victim took his wallet from his back pocket. The Applicant grabbed and opened the wallet and took the three $50 notes.
Later that day, following a police report, police found a group of individuals including the Applicant, who was found in possession of the mobile phone taken during the earlier offence, and with one $50 note taken during the second offence. The Applicant and another person were taken into custody. He denied the aggravated robbery, saying that he was so intoxicated he could not remember much. The cannabis the subject of the third offence was found on the Applicant when he was searched while in custody.
On 12 December 2013, Magistrate Williams dealt with the offence of armed with intent to commit indictable offence which was committed on 25 September 2013, just after the Applicant had been released from gaol on 19 September 2013. Following are the facts of that offence taken from the sentencing remarks. Walking down the street, the Applicant confronted a person at random and demanded a cigarette. When the victim said that he did not smoke, the Applicant said “Give me a smoke or I’ll stab you” and reached into his pocket where there was a Stanley knife. Seeing the Stanley knife and fearing he was going to be stabbed, the victim grabbed the Applicant, pushed him to the ground and then held him until the police arrived. On examination, the blades of the Stanley knife were in fact retracted and not in a position that would have immediately caused harm, although it had the potential that a very easy motion the blade could have been activated if it was in fact brought out. The victim suffered considerable fear, having had a demand put on him and being told that he was going to be stabbed, and then seeing the knife which was consistent with being stabbed.
The Magistrate said in relation to the Applicant:
More importantly, he was only released from jail, it seems to me, on 19 September 2013 and released on a charge of demanding money with menaces and then put on a section 9 good behaviour bond. So at that time he was subject to a conditional liberty imposed by a higher court on a matter involving menaces, threats, and it seems to me, threats of intimidation.
On 28 August 2015, a Magistrate in Melbourne dealt with offences including breach of a family violence safety notice issued after an incident on 3 March 2015. The breach occurred on 25 May 2015 at the home of the victim, the mother of the Applicant’s child who was born in February 2015. The Applicant abused the victim before punching her to the head several times, which resulted in a laceration above her right eye. Police found credit cards and a licence belonging to another person and a watch the Applicant could not account for, in his underwear. The Applicant was arrested on 25 May 2015 and had served 95 days as of the date of hearing. The sentence was time served. However, the Applicant remained in custody because of other matters.
On 29 September 2015, the Melbourne Magistrate’s court dealt with the charges of prohibited person in possession of a firearm, robbery and criminal damage. The offences occurred “in the early hours on 1 April 2014”. The Applicant and another man approached the victim who was in the car. The Applicant put his hand on the partly opened driver’s side window as though trying to push the window down, while asking the victim for cigarettes. The other person got into the back seat of the car and the Applicant got into the front passenger seat, uninvited. Both men started searching the car, insisting that the victim give them money, drugs or cigarettes. The victim saw that the other person had a knife. It was not alleged that the Applicant was aware of that. The Applicant and the other man searched the glove box and console. The victim became apprehensive and fearful and believed that he heard the Applicant say something like “I’m packing, loaded”, street slang suggesting he had a firearm of some kind which the prosecution contended was a deliberate remark intended to ensure that the victim was compliant. The Applicant did not produce a weapon at any time. The victim told the men that he had nothing to give them, and to appease them, he offered to drive to a nearby 7 Eleven to buy them cigarettes. The Applicant of the victim entered the store once when the Applicant asked for cigarettes but said that he didn’t have any money. They then went outside the store but later returned and both men asked for cigarettes and the victim bought them using a card. The Applicant started getting angry with the store attendant saying, “don’t look at me like that. I don’t need you calling the cops.” To placate the Applicant the store attendant shook hands with him. On returning to the motor vehicle, the Applicant and the other man prevented the victim from getting in the driver’s seat. After a short conversation the Applicant grabbed the victim’s car keys and got into the driver’s seat. The victim got into the front passenger seat as he was told to do, and the Applicant drove away and then deliberately drove at a small street sign and collided with it causing damage to the driver side of the car. The victim got out and went round the driver’s side and remonstrated with the Applicant who then drove away out of sight.
The Applicant was arrested on 15 June 2014 by Protective Service Officers who located a pen pistol which was loaded with a .22 calibre bullet, in the right-hand back pocket of the Applicant’s pants. A firearm and tool mark examiner examined the pen pistol and confirmed that it met the definition of a handgun pursuant to the Firearms Act 1996 (NSW). The pen pistol was of crude manufacture and incomplete, and could not be discharged. It was .25 automatic calibre and a .22 cartridge was not suitable for use in it. The Applicant had been in pre-sentence detention for 161 days. The Magistrate considered carrying the pen pistol to be very serious matter even if it was not functional.
The Magistrate sentenced the Applicant to 6 months’ imprisonment for the prohibited person possess firearm offence and 11 months’ imprisonment for the robbery and criminal damage offences, a total of 17 months.
On 2 February 2017, in the Parramatta District Court, Colefax J SC dealt with the demand property with menaces with intent to steal offence which had been called up because of breach of a s 9 bond imposed on 19 September 2013 by Craigie J. A related larceny offence was on a Form 1 but Colefax J SC found that it was subsumed in the principal offence. His Honour said that the Applicant had previously breached the bond shortly after it was imposed, was drunk again, and served a further period of imprisonment. When he was admitted to parole, the Applicant absconded to Victoria where he again offended. Following completion of the sentence for that offence in Victoria, he was extradited back to New South Wales to be dealt with for the breach of the bond. That was the reason for the delay between breach of the bond and being called up.
While Colefax J SC said that he incorporated the sentencing remarks of Craigie J in his remarks, the remarks of Craigie J are not available to the Tribunal. Colefax J SC said that when Craigie J sentenced the Applicant, he had served nine months and 15 days. He considered the imposition by Craigie J of the s 9 bond “over and above nine months and 15 days was excessive”. He therefore backdated that sentence so that it expired on the day of the hearing, 2 February 2017. His Honour considered the offence to be “towards, if not actually at, the bottom of the range of objective seriousness for the offence of that kind”.
The agreed facts of the offence are not before the Tribunal. However, the police record is and states the following. At about 10:40 pm on 4 December 2012, the Applicant sat down next to the victim who was waiting for a train. First, the Applicant asked for a drink of water from the victim’s bottle, which the victim gave him, and then asked for $3 to buy alcohol from the machine. The victim said that he only had $1 and then stood up, took out his wallet from his pants pocket and held it open to show the Applicant, who grabbed the victim’s hand and pushed the victim with an open palm. Fearing further assault, the victim let go of the wallet walked away and went up to the main concourse of the railway station and onto the overpass where he called police. The Applicant followed the victim about 4 metres behind and asked him to “come back” and said “call the cops, call the cops I don’t care”. The Applicant ran to catch an incoming train and was later found at another railway station and arrested. The wallet and $1 coin were returned to the victim.
The Tribunal has taken into account the following evidence. The Applicant agreed, when asked by the Respondent’s legal representative, that he accepted that the National Police Record and the other records of his criminal history were accurate. Later, he told the Tribunal that he had always pleaded guilty because he had been told by Legal Aid lawyers to do so or he had no choice, and the records of the facts of various offences were inaccurate. He also said that he cannot lie. When questioned about several of his offences, the Applicant’s recollection was very clear and similar to the facts available to the Tribunal in contemporaneous documents. In relation to some offences, he said that he would never do what he did. On a number of occasions, the Applicant showed that he lacked empathy with the victims, blaming the victim for annoying him by their reaction when he approached them. The Tribunal accepts the records contained in the documentation and notes that he was legally represented in the proceedings for which sentencing remarks are available to the Tribunal. The Tribunal has taken into account the Applicant’s criticisms of his various past legal representatives in making those findings but gives them little weight.
The Tribunal has taken into account the sentences imposed by the courts, summarised above, which reflect the court’s view of the seriousness of the crimes committed.
The Applicant’s offending has been frequent and there is a trend of increasing seriousness, reflected in the 17 month sentence handed down on 29 September 2015.
The cumulative effect of the Applicant’s offending is that he has demonstrated no respect for Australian laws ever since he arrived in this country aged 15, including breaching bonds and court orders, and absconding interstate.
The Applicant acknowledged receiving a letter from the Department in 2008 advising him that if he reoffended, his visa might be cancelled. He reoffended thereafter. Another letter was sent in 2010, however the Tribunal is not satisfied on the evidence that the Applicant received it. It does accept that the Applicant was aware from 2008 that continuing to offend could result in the cancellation of the visa.
The Applicant was asked about various incidents where he assaulted other staff and detainees when he was in juvenile detention in 2004 to 2006. The Tribunal accepts that he did what was recorded. While in detention since 23 February 2017, the Applicant has been abusive and aggressive towards a nurse and has threatened to assault and kill other detainees on a few occasions. He acknowledged that he threatened to kill a detainee because of his bad breath. The Tribunal notes that those incidents are categorised as “minor” in the reports.
The Tribunal notes that it does not have the records from the Victorian prisons. On the available evidence, the Applicant has been involved in fewer incidents while in detention and gaol in recent times, compared to his time in juvenile detention and the incidents have been less serious.
However, the Tribunal views the Applicant’s criminal conduct as being very serious.
Risk to the Australian community
The Tribunal has taken into account the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
If the Applicant reoffends, the harm to individuals in the Australian community will include physical and psychological harm, the theft of and damage to property of individuals and the loss of revenue from unpaid tickets and fines.
The Applicant maintained at the hearing, as he stated in his representation following the cancellation of the visa, that he will not reoffend because he will not drink alcohol. He claimed that he became addicted to alcohol to deal with the trauma, stress and depression he suffered as a child in Sudan.
The Tribunal accepts that the Applicant is Dinka and came from what is now South Sudan. The evidence before the Tribunal about when his father died and when his family split up, is conflicting. However, the Tribunal accepts that at some stage when he was quite young, events in the civil war in Sudan caused his family to split up. Thereafter his older brother looked after him in Sudan, including in the capital city Khartoum, and then for a couple of years in Egypt after they had been sponsored to go there. During some periods in Sudan, the Applicant was separated from his older brother but somehow managed to survive. The Tribunal accepts that he suffered severe trauma when he was a child. He and his brother arrived in Australia from Egypt in 2003. His mother arrived in 2005 and another brother arrived in about 2012. He also has a sister who lives in the United States.
In the typed representation dated 23 August 2017, the Applicant said that he would continue his drug and alcohol counselling, work and do an apprenticeship, and be involved in the Sudanese community. The supporting statements from the Sudanese community and his mother referred to in the representation were not before the Tribunal.
The Tribunal finds that the Applicant has been assisted extensively in the past, particularly while he was in the juvenile justice system. That is apparent from reports, some of significant length and detail, which were before the Tribunal. The Tribunal accepts that he had very little formal education before coming to Australia. He attended school in Egypt a little and learned some Arabic. Unfortunately his behaviour has limited his educational opportunities in Australia. He attended an Intensive English Centre but was “unable to conform with the program and was expelled”. He attended a Senior College and was expelled in May 2004 due to aggressive behaviour. He was assisted to attend a TAFE college and completed a short course on multiculturalism. He was then assisted to attend another TAFE course designed for youth from various cultures, but his attendance was poor.
The Tribunal accepts that his grasp of English was poor during his early years in Australia and that he learned English in juvenile detention. The Tribunal found his spoken English to be fluent.
The Applicant’s mother gave oral evidence during the hearing of this matter and asked that the Applicant not be deported because she wanted to have the opportunity to talk to him so he changes. He has told her that he has learned enough from his wrong-doing not to go back to that life and she believes him. In 2005, she told a Juvenile Justice representative that she would have people from her clan speak to the Applicant to bring pressure to bear on him to change his behaviour.
The most recent evidence before the Tribunal about the Applicant’s psychological state was a report dated 14 June 2017 from STARTTS (NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors). The assessment was carried out on 9 May 2017 while the Applicant was in immigration detention. The report recommended “supportive counselling… to address (the Applicant’s) reported symptoms of anxiety, PTSD and depression. Psychological treatment should also focus on further strengthening (his) existing coping strategies”.
The Applicant claimed during the hearing that he saw STARTTS every week and then every month, which continued. He said he was taking a medication for his mental health condition.
The Applicant denied ever receiving treatment for PTSD or alcohol abuse while in gaol. He said that every time he went to gaol, they would tell him not drink. That would be in the bail condition and he would go and drink and get locked up again. He did not go to “rehab”. The lawyer said he was not suitable because he was violent. He claimed that he would be ordered to go somewhere in a bond and he would go. He went to a couple of Alcoholics Anonymous (AA) meetings, including one at Burwood when he took alcohol to the meeting.
In addition to attending AA, the Applicant told the Tribunal that he had attended a course for being a dad, which involved preparing a card and CD for his child, a health and safety course for a few days, and a traffic control course for shepherding children across the road. There were no certificates provided to corroborate that evidence.
The Applicant told the Tribunal that he used drugs while he was in prison from 2015 to 2017. The drugs included prescription drugs, including those prescribed for others, and illicit drugs. He also said that he had used illicit drugs a couple of times since being in detention after 23 February 2017, most recently six weeks ago, and had drunk alcohol made from fruit on one occasion.
The Tribunal accepts that someone else prepared the Applicant’s typed statement accompanying the request for revocation of the cancellation decision. The Applicant said that it was read to him and it is correct. In the statement, he expressed remorse and regret for his past behaviour and claimed to be fully rehabilitated, having been counselled by STARTTS and attended an Anger Management, Drugs and Alcohol program in detention centre. He did not mention either an Anger Management or Drugs and Alcohol program in the Personal Circumstances form that accompanied his request for revocation, or when giving his oral evidence. There appears to be the handwriting of at least two people, other than the Applicant, in that document. Examples of the Applicant’s handwriting are in evidence. His handwriting is distinctive and reflects his lack of formal education in English.
The Applicant’s claim to have been rehabilitated is inconsistent with his using an illicit drug six weeks before the hearing and alcohol since being in detention from 23 February 2017. The Tribunal does not accept that the Applicant has developed the capacity not to drink alcohol or use drugs when he returns to the community. His drinking and drug use have continued from about 2004 to the present, including in gaol and detention when available.
He has not developed any work skills since being in Australia. He has worked in labouring jobs briefly in the Flemington markets in Sydney and in construction in Melbourne. He had a leaf-blowing job many years ago.
The Tribunal is not satisfied that the Applicant has been rehabilitated. He has demonstrated in the past that he does not avail himself of assistance or pursue opportunities or follow advice. He makes poor decisions. A striking example is the effort made by the Magistrate in the proceedings on 29 September 2015 to assist the Applicant by imposing a Community Correction Order. His Honour ensured a Dinka interpreter was present and explained what would be involved. The Applicant’s response, including that he was not a criminal, it was unfair, and he had no choice, resulted in the Magistrate not being satisfied that he consented, and imposing the 17 month sentence of imprisonment. During the Tribunal hearing, the Applicant described the Magistrate as a “bad man”.
The only person who can change the Applicant is himself. The Tribunal has no confidence that he has the motivation or capacity to do so.
Based on his criminal history and past conduct, the Tribunal finds that the Applicant is likely to engage in further criminal conduct.
Best interests of minor children in Australia affected by the decision
As stated above, the Applicant had a child in February 2015. He told the Tribunal that his partner told him the child had not survived, but eventually he found out that the child had lived.
He told the Tribunal that the mother of the child was taking “ice” and her parents have had custody of the child since he was about eight months old. The Tribunal infers that the child was in the care of authorities in Victoria for the first eight months of life.
It is clear from his evidence that the Applicant is no longer in a relationship with the mother of his child.
The Applicant said that he first saw his child while in prison in Melbourne when the child was about nine months old and thereafter has only seen his child a few times while the Applicant was in prison and detention in Victoria. He last saw the child in October 2016 before the Applicant returned to New South Wales. The child lives in Melbourne.
The Applicant said that he speaks to his child every day. There is no evidence from the mother or her parents who have custody of the child. Because of the unreliability of the Applicant’s evidence and the age of the child, the Tribunal does not accept that he speaks to his child every day, but accepts that he has some telephone contact with the child.
Precisely what he will do to make the child his priority is unclear.
Although the parent of the child, the Applicant has had a negligible role in the child’s life. The evidence does not suggest that he has ever paid child support for the child. The Tribunal rejects the Applicant’s claim that his child will not have a father figure if the Applicant leaves Australia. His maternal grandfather fulfils that role. The Applicant does not fulfil a parental role. There is no suggestion that the Applicant will have custody of the child in future. The Applicant is unlikely to play a positive parental role in the future given the Tribunal’s finding that he is likely to reoffend, with the consequence that it is likely that he will return to custody.
If the Applicant left Australia, he would not be able to visit his child, but could contact him by telephone or digital means. Separation from the Applicant would have a negligible impact on the child.
The Applicant listed two nieces/nephews as relatives in Australia. That was the only evidence about them. He did not refer to them in the section of the Personal Circumstances Form dealing with the best interests of minor children. The Tribunal gives no weight to the interests of these children because there is no evidence on which it can make such findings. There was no statement from the parent of those children supporting the Applicant.
The Applicant also referred to his “step-son” who was 15 or 16, who had gone to the United States. That was the only reference to that child. The Tribunal infers that the child is the child of Applicant’s former partner. The Tribunal does not accept that this child will be “affected by the decision”.
The consideration weighs neither in favour of nor against revocation of the visa.
Expectations of the Australian community
Given his lengthy criminal history and the Tribunal’s finding that he is likely to engage in further criminal conduct, the expectations of the Australian community strongly weigh against revoking the cancellation of the visa. In making that finding, the Tribunal has taken into account the very difficult circumstances he faced in Sudan as a child and that he arrived here on the visa. He has had much assistance and many opportunities in Australia to change his conduct but has not done so.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Tribunal accepts that the Applicant experienced trauma during the civil war in Sudan, particularly while he was separated from his family and looked after by his older brother, and when he was alone. It does not accept all the details of his claims about what happened to him because there is inconsistent evidence about significant aspects of it, including when and where his father died and whether he was trained as a child soldier. The Applicant’s evidence that people were going around refugee camps telling people from South Sudan which stories to tell to get to Australia reinforced the Tribunal’s concern about the truth of his claims.
The delegate did not consider Australia’s international non-refoulement obligations because the Applicant is able to apply for a protection visa. The delegate referred to the Department’s practice of considering protection-specific criteria first before other criteria, including character, and to Direction no. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b). Consequently, no assessment of Australia’s treaty obligations was obtained or available to the Tribunal
The Applicant has identified this consideration as “another reason” why the revocation of the visa should be cancelled. The Tribunal therefore considers the matter.[2]
[2] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96.
The evidence about what will happen to the Applicant if he returns to South Sudan and why, was limited. Following is a summary of the evidence.
The Applicant was a refugee from the civil war in Sudan. He was trained as a child soldier and was registered in Sudan. His father was a member of the Nuer tribe and his mother a member of the Dinka. There are tribal wars, including between the Dinka and the Nuer. There is a lot of corruption. He has made a statement against the government and “is pretty sure that it gets back to them”.
His mother referred to fighting going on in South Sudan and that he has no relatives there to support him. She stated that the sound of guns is heard every now and then in Juba and people died from unknown gun men. She said that he has no idea of living there and would be “food of the jungle”.
The Applicant listed, as an impediment to return, that he was depressed, has multiple stress disorder and was taking medication.
He claimed that he had no passport.
No country information was provided to the Tribunal by the Applicant or the Respondent.
The Respondent submitted that, in relation to s 501 of the Act, the Tribunal is not required to engage in the extensive assessment and determination of protection claims that the Migration Review Division of this Tribunal is required to, relying on Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 (Ayoub) at [28].
Further, the Respondent submitted that it was highly relevant to the Tribunal’s “weighing” exercise that the Applicant is able to apply for a protection visa, when his claims would be determined before any consideration of character concerns.[3] Furthermore, if the application were refused, the Applicant could pursue merits and judicial review.
[3] Direction 75 – Refusal of Protection Visas Relying on section 36(1C) and Section 36(2C)(b).
The Respondent submitted that the Tribunal follow the approach taken into PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961, at [86] – [88], relying on Ayoub.
The Applicant’s claims were in relation to South Sudan. The claims before the Tribunal lack detail and probative evidence that would enable the Tribunal to be satisfied that Australia has protection obligations because the Applicant is a refugee, or because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to South Sudan, there is a real risk that he will suffer significant harm (s 36(2)(a) and (aa) of the Act).
The Applicant repeatedly said that he got no assistance in detention in relation to this proceeding. The Tribunal accepts that is so. The only evidence he put before the Tribunal in addition to his statement and the Personal Circumstances Form he provided to the department when he requested revocation of the cancellation decision, was a statement in Dinka from his mother, just two days before the hearing. The Respondent co-operated with the Tribunal in this case, and tendered the English translation of that statement that was provided on the second day of the hearing, avoiding the difficulties posed by s 500(6H) of the Act.
The Tribunal takes into account that the Applicant is able to apply for protection.
The Tribunal gives this consideration no weight.
Strength, nature and duration of ties
The Applicant has been in Australia since 2003, as has his older brother. His mother arrived in 2005. His other brother arrived in about 2013. He claimed that his mother and two brothers are Australian citizens. The respondent did not dispute that claim. He has two nephews or nieces in Australia.
The Applicant told the Tribunal that he is not close to his mother because of the time they were separated and the trouble he has been in in Australia. The Tribunal accepts that she has been as supportive of the Applicant as possible but finds he takes no notice of her concern that he change his conduct. She supported him while he was in juvenile detention and attended court in Melbourne to support him in September 2015. She provided a statement and gave evidence in support of him before the Tribunal. The Applicant’s evidence about how often she visited him in gaol and detention in NSW was inconsistent. The Tribunal accepts that she has visited him as often as she has been able to, in circumstances where she requires someone to take her and both her other sons work.
The Applicant told the Tribunal that his older brother visited him twice since he returned to detention in Sydney in February 2017 and his other brother visited him two to four times.
The Applicant’s brother, who arrived in Australia about five years ago, attended the hearing on one day. There was no statement from him or their older brother in support of the Applicant. In August 2006, the older brother kicked the Applicant out of their home because the Applicant was not listening to him and had had too many chances.
The Tribunal does not accept that the Applicant has strong ties to any of his family members or to anyone else in Australia, including his son. He began offending almost immediately that he arrived in Australia and has spent time in gaol and immigration detention thereafter. There is little evidence that he has contributed positively to the Australian community.
The Tribunal accepts that his mother would be most adversely affected if the visa cancellation were not revoked, and his brothers and son to a lesser extent. His nephews/nieces will be adversely affected to the extent that a family member has left Australia and returned to the country from which one of their parents escaped because of civil war.
The Applicant is no longer in a relationship with his child’s mother. The Tribunal does not consider that she would be adversely affected if the cancellation was not revoked.
Impact on victims
There is no information available about the impact on victims of the Applicant’s criminal behaviour, or the family members of victims.
Extent of impediments if removed
The Applicant is 30 years old. He reported symptoms of anxiety, PTSD and depression. He takes medication for that condition. He speaks a dialect of Dinka and some Arabic. The Tribunal does not consider that there are substantial language or cultural barriers. He will have no family support in South Sudan. He will have whatever medical and economic support is available to other residents of South Sudan. The Tribunal takes into account that he and his brother survived in South Sudan during the civil war for some years. Although he will not have the protection of his older brother, he is now an adult. He will have difficulty establishing himself and maintaining basic living standards.
This consideration weighs significantly in favour of revocation of the cancellation of the visa.
CONCLUSION
Taking into account the above considerations, the Tribunal finds that the considerations in favour of not revoking the cancellation of the visa strongly outweigh those factors that favour revocation. It is not satisfied that there is another reason why the cancellation decision should be revoked.
DECISION
The Tribunal affirms the reviewable decision dated 5 January 2018 not to revoke the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa.
I certify that the preceding 98 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
............................[sgd]............................................
Associate
Dated: 27 March 2018
Dates of hearing: 15 and 16 March 2018 Applicant: In person Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers
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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Jurisdiction
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