Garam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 3190
•19 August 2022
Garam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3190 (19 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4638
Re:Apac Izak Garam
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:19 August 2022
Date of written reasons: 6 September 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister dated 25 May 2022 not to revoke the mandatory cancellation of the Applicant's Class XB, Subclass 202 Global Special Humanitarian visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Class XB, Subclass 202 Global Special Humanitarian visa (‘the visa’) visa is revoked.
.....................................[sgd]...................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – non-refoulement obligations – strength, nature and duration of ties to Australia – impediments to removal – decision under review set aside and substituted
LEGISLATION
Migration Act 1958(Cth) s 499, 500, 501, 501CA
CASES
Aciek and Minister for Home Affairs [2018] AATA 2755
Al-Kateb v Godwin (2004) HCA 37
BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574
Do and Minister for Immigration and Border Protection [2016] AATA 390
Djalic v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 151
Falzon v Minister for Immigration and Border Protection [2018] HCA
Folau v Minister for Immigration and Border Protection [2016] FCA 1149
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Viane v The Minister for Immigration and Border Protection (2018) FCAFC 116
VNPC v Minister for Immigration, Citizenship Migrant Services and Multicultural Affairs [2022] FCA 921
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797
WKCG and Minister for Immigration and Citizenship [2009] AATA 512
XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 441
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
XDJD and Minister of Immigration and Border Protection (Migration) [2021] AATA 2882
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
6 September 2022
The Applicant seeks review of a decision of a delegate of the Respondent (‘the Minister’) made on 25 May 2022 (‘the decision under review’) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) to revoke the original decision made under s 501(3A) of the Act, to cancel the Applicant’s Class XB, Subclass 202 Global Special Humanitarian visa (‘the visa’) .
A delegate of the Minister was satisfied that the applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
The Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 8, 9 and 10 August 2022 using the Microsoft Teams platform.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’ or ‘Direction 90’).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
protection of the Australian community from criminal or other serious conduct (‘Primary Consideration A’);
whether the conduct engaged in constituted family violence (‘Primary Consideration B’);
best interests of minor children in Australia (‘Primary Consideration C’); and
expectations of the Australian community (‘Primary Consideration D’).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
international non-refoulement obligations;
extent of impediments if removed;
impact on victims; and
links to the Australian community, including:
the strength, nature and duration of ties to Australia; and
the impact on Australian business interests.
Facts
The applicant, who is 31 years of age, was born in South Sudan on 1 January 1991 and is a citizen of South Sudan. A Protection Visa Decision Record made on 16 December 2020 records that the applicant is a person in respect of whom Australia had protection obligations because the applicant is a refugee and further, there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to South Sudan, there is a real risk that he would suffer significant harm. Accordingly, the record concluded that the applicant is a person in respect of whom Australia has protection obligations. Further details of the applicant’s background provided later in this decision.
evidence
Statements
The Tribunal has had regard to all the material filed in this matter, including:
o a handwritten statement of the applicant (undated);
o applicant’s letter to the Department of Home Affairs dated 12 April 2019;
o email from applicant dated 1 June 2021
o email from applicant dated 25 July 2022;
o statement of applicant dated 11 January 2019;
o two photographs purportedly of the applicant’s son and the son’s mother AL and a third person;
o email dated 3 August 2022 from AD (applicant’s sister) and from AL
o submissions provided by Legal Services Commission of South Australia sent by facsimile dated 16 May 2017;
o Letter (Undated) from Legal Services Commission of South Australia enclosing Form 956 providing authority for the author of the letter to provide submissions;
o letter (undated) from Legal Services Commission of South Australia requesting that the respondent obtain evidence of the rehabilitation and education courses undertaken by the applicant;
o Certificates of Record from the Magistrates Court of South Australia.
Oral evidence
The Tribunal heard oral evidence from the applicant.
Medical evidence
A report of Steven M Wright, psychologist dated 19 March 2015 has been provided to the Tribunal.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community … keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction.
Applicant’s Criminal history
The applicant has had a long history of offending in Australia. The majority of offences are not especially serious, as is evidenced by the sentences imposed. However, the seriousness of the offending increased in 2013 as reflected in the schedule hereunder.
Court Offence date Court date Offence Court Result Adelaide Magistrates Criminal Court 08/04/2011
and 24/02/2011
21/06/2011 Disorderly behaviour, state false personal detail, provide false information on a bail application.
Loitering and disorderly behaviour
Without conviction. Good behaviour bond 6 months and
$100. $320 and $480 costs (waived)Holden Hill Magistrates Court 16/04/2011 27/10/2011 Carry offensive weapon, refuse name and address Without conviction. Good behaviour bond 12 months and
$200. VIC levy $160
Holden Hill Magistrates Court 13/05/2011 21/07/2011 Resist police Convicted. Discharged without penalty. Costs only $160 VIC levy Adelaide Magistrates Criminal Court 24/05/2011
and 06/06/2011
14/06/2011 Fail to comply with bail agreement x 2 Convicted. Costs only $320 VIC levy Holden Hill Magistrates Court 08/07/2011 08/07/2011 Fail to comply with bail agreement Convicted. Fine $8, court fee
$207, $160 VIC levy, $25 prosecution costs
Holden Hill Magistrates Court 08/07/2011 08/07/2011 Fail to comply with bail agreement Convicted. Discharged without penalty. Costs only $160 VIC levy Holden Hill Magistrates Court 21/07/2011 08/07/2011 Fail to comply with bail agreement Convicted. Discharged without penalty. Costs only $160 VIC levy Holden Hill Magistrates Court 24/08/2011 28/07/2011 Fail to comply with bail agreement Convicted. Discharged without penalty. Costs only $160 VIC levy Holden Hill Magistrates Court 27/10/2011 13/05/2011 Dishonestly take property without consent, commit assault aggravated other by use of offensive weapon Convicted. Good behaviour bond 18 months and $500. Costs only $420 VIC levy. Weapons order: knife to be seized and forfeited to the Crown Holden Hill Magistrates Court 14/11/2011 11/01/2012 Disorderly behaviour Convicted. $100 fine, $207 court fee, $160 VIC levy and
$25 prosecution costs
Holden Hill Magistrates Court 12/09/2012 10/10/2012 Carry offensive weapon Convicted. $400 fine, $214 court fee, $160 VIC levy and
$100 prosecution costs
Port Adelaide Magistrates Court 21/05/2013 21/05/2013 Estreatment of bail Found proved. $200 estreatment Adelaide Magistrates Criminal Court 10/04/2013
and 06/04/2013
05/06/2013 Trespassing and disorderly behaviour Convicted, discharged without penalty, costs only $160 VIC levy and $100 prosecution costs and $320 VIC levy and
$100 prosecution costs
Adelaide Magistrates Criminal Court 06/06/2013 22/07/2014 Fail to comply with bail agreement Convicted. Fine $100, $160 VIC levy and $100 prosecution costs Port Adelaide Magistrates Court 10/11/2013 18/07/2014 Unlawfully on premises and state false personal detail Convicted. Imprisonment 5 days starting 18/07/2014. Costs $320 VIC levy and $100 prosecution costs Port Adelaide Magistrates Court 05/12/2013 05/12/2013 Estreatment of bail Found proved. $500 estreatment and $36 reminder fee Elizabeth Magistrates Court 29/11/2013 10/06/2014 Disorderly behaviour and urinate in a public place Without conviction. Dismissed without penalty. Costs $287.50 court fee, $320 VIC levy and
$100 prosecution costs
District Court of SA 07/12/2013 23/03/2015 Commit assault that
causes harm – aggravated other – no weapon and intentionally cause harm – aggravated
offence – other
Convicted. Imprisonment 6 years. NPP 3 years, 6 months. Start 26/12/2013. One penalty imposed pursuant to s18A of the Criminal Law (Sentencing) Act, 1988. $1,040 VIC levy District Court of SA 07/12/2013 23/03/2015 Engage in sexual intercourse with a person
without consent
Acquitted Sentencing observations in respect of recent offending
The Tribunal has considered sentencing observations in relation to the most recent convictions. On 23 March 2015 in the District Court, criminal jurisdiction, Adelaide, Judge Muscat considered the finding of guilty against the applicant in respect of the charge of aggravated assault causing harm and aggravated assault causing harm with intent to cause harm. Such offences occurred in December 2013. The sentencing remarks are as follows, relevantly:
The victim of your assaults was a woman with whom you had previously been involved in a violent relationship causing her to seek and to be granted an intervention order against you to prevent you from further physically abusing her.
The evidence given at your trial reveals that when you drink too much, you have a tendency to become abusive and violent. Indeed, the crimes which the jury convicted you of were committed by you whilst you were affected by alcohol. Your criminal record exemplifies that you offend when intoxicated.
Despite your intoxication, you clearly formed the specific intention to cause harm to your victim.
…
Your assaults upon your victim are serious examples of their kind. Not only did you beat senselessly a woman who is unable to defend herself, which of itself is disgraceful and deplorable conduct, but you did so in the face of an order designed to prevent you from doing exactly that and further, in the case of the second count, you used the broken ends of a broom handle to belt your victim with.
Having listened to the evidence of your victim, I’m satisfied that that night you are nothing more than a violent and drunken man who belted the living daylights out of the woman in clear contravention of a court order designed to stop you from doing exactly that. Your defiance of the intervention order is a very serious circumstance of aggravation of your crimes, as is your use of the broom handle, which is snapped into to belt your victim with.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction. In the event that the applicant should consume alcohol in the future, the Australian community would be at risk if the applicant engaged in other serious conduct.
Applicant’s statements and submissions
The applicant states, in respect of the offence that occurred on 24 April 2013 when the applicant assaulted a female:
When my offending happened I had had a lot of alcohol. I had alcohol throughout the day and the incident happened that night. I went to the house to see my mates and had no plan to be violent there. My mates were sleeping there from the night before. We were drinking before going there and on the way there I was drinking as well.
My friends left me at the house because I passed out while we were there.
That night I found myself fighting her, beating her up and only at the end of the fight I realised what I was doing.
Next day I woke up and I was shocked by what happened. I looked at her and saw what I caused. I was completely shocked. This was not planned.
During my trial I didn’t plead guilty because I was blaming the alcohol for affecting me, I was also blaming her for starting the violence. Also I was scared of being convicted for the offence. That is why I pleaded not guilty. But I know the injuries happened to her and I’m the one who caused that.
The police record records state that the applicant punched the victim and that the applicant had been drinking wine in the living room. The victim asserted that she was lying on a mattress on the living room talking to the applicant when he suddenly became very aggressive and jumped on top of her. The police report continues:
The victim states that Garam punched her in the head several times. The victim states that she put her arms up to protect herself and was unable to get away as Garam was sitting on top of her.
The report continues:
The accused stated that when interviewed by police that he did not assault the victim, he held the victim down when she became aggressive after she refused to have sex with her and the victim broke the front window in anger after they had an argument.
The police report stated the victim sought assistance from a neighbour’s house and while waiting for the police to arrive the applicant pulled off the bathroom sliding door and threw it out the front door into the front yard. As a result of the assault, the victim received injuries of soreness and swelling to the head and face and small cuts under her eyes.
Psychological evidence
Mr Wright, the psychologist in his report dated 19th of March 2015, found that the applicant was suffering from long-term unresolved trauma during the developmental years including the loss of his parents and of his brothers who were killed in the civil war in Sudan. He states that the applicant grew up in the care of his older sister who brought him to Australia with her five children. Mr Wright states that the applicant’s sister’s partner was physically violent towards him. The applicant experienced severe hardship in Sudan and Egypt, including the loss of both parents. He consumed alcohol excessively as a maladaptive attempt to moderate his underlying trauma and to ‘assist him to forget' past traumatic memories. The applicant indicated his prior use of marijuana and alcohol but no other drug use.
Mr Wright stated:
I formed the view through clinical interview and structured diagnostic assessment that Mr Garam was suffering from long term unresolved trauma. There was also underlying problematic use of alcohol. He fulfilled the criteria for a diagnosis of Post Traumatic Stress Disorder and had a comorbid diagnosis of Alcohol Use Disorder (DSM-5, American Psychiatric Association, 2013). I considered that Mr Garam met the criteria for the above diagnoses at the time of the current offending.
As to the prognosis, Mr Wright said, ‘Mr Garam ’s prognosis for a successful rehabilitation was positive however this was contingent on a number of factors and recommendations.’ Those conditions included appropriate engagement with support services, assistance, linkage to the South Sudanese community of Association of Australia for cultural guidance and support; identifying and modifying criminal attitudes associated with his offending; exploring his use of emotional regulation strategies; encouraging participation in prosocial employment, educational and recreational activities; referral to an appropriate agency such as a general practitioner for assessment and ongoing treatment for his general physical and mental health; any period of supervision would require monitoring and ongoing breath testing and urine analysis.
Applicant’s conduct: Incident 1/6/2016
The records of the Department of Corrective Services dated 15 March 2018 record that the applicant was abusive towards staff. The applicant demanded to be placed in educational courses and became disrespectful and kicked an office door. He informed the officer that she was ‘wasting his time’. The applicant was informed his conduct was unacceptable.
The applicant, in response, states that he was enrolled in education and claims that he had not been told whether he was assessed to undertake education courses. He states that he approached the unit to make enquiries on why his enrolment was delayed and continues in the statement dated 11/1/2019:
The unit officer was rude and had a dismissive tone, he told me to leave as he had not finished marking the assignment. He told me to leave and threatened to call the rolling officers to remove me. I took this personally and this made me if so frustrated as I only wanted to know if I was accepted into the course. I then proceeded to leave the office and on the way out I had kicked the door.
I then later apologised to the officer concerned in the incident.
Observation
It is submitted on behalf of the applicant that he has been productive in making changes to his life while incarcerated because he has undertaken several self-improvement courses and attained certificate 1 in Education and skills development. He has also ‘successfully participated in sexual and domestic violence education, Hepatitis Apple A and alcohol management programs’. It is also submitted that:
Mr. Garam has demonstrated signs of making changes in his life. It is submitted that the views of those members of the family and community are reflective of the view likely to be taken by the Australian community generally, if Mr Garam’s circumstances were fully explained.
Moreover, this position is consistent with the concept of a ‘fair go’, which is a value long held by the Australian community.
Finding on Primary Consideration A
The Tribunal is satisfied that the nature of the applicant’s offending is serious. The Tribunal also accepts that, without the applicant undertaking the conditions referred to by Mr Wright, the applicant is at risk of re-offending.
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful’.
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
Observations
The offences committed by the applicant were committed against a woman. He apparently had been friends with the woman and had been intimate with her on occasions. Sometimes she would stay where the applicant was residing and on other occasions she would invite the applicant to visit her. The relationship had continued for approximately three years at the time of the serious offending. However, at the time of the offences there is no evidence that the applicant was continuing to reside with the victim but the applicant and the victim continued to have a casual sexual relationship. In these circumstances, the Tribunal considers that the victim did constitute a ‘family member’ within Direction 90, despite the fact that there is no definition of such a term in the Direction. It follows that the violence committed against the victim constituted family violence although there was no actual conviction for such conduct: see Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 at [64] (per O’Callaghan J) and see also [1) and (69) per Katzman J and Stewart JJ.
But for the close and continuing association between the applicant and the victim which extended over three years, and the fact that they had been intimate and continue to be so on numerous occasions, the Tribunal considers that it was such a relationship which created the occasion for the offending. The offending was not perpetrated upon a stranger or upon a female with whom the applicant had had a transient relationship. The offending of the Applicant can be classified as ‘family violence’ for the purposes of Direction 90, as defined in paragraph 4(1) of the Direction.
The Tribunal finds that this consideration weighs against revocation of the decision under review.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct (sub-paragraph 8.3(4)(h)).
In the applicant’s Personal Circumstances Form dated 2 March 2017, the applicant stated, inter alia:
I would like to inform the Department about my ex-girlfriend and child which she believes is my son when we were together in 2011. We were together for 4 to 5 months before we broke up. I left the Queensland when she was pregnant to work. Then she had a new boyfriend and a DNA test was done and the child was not his. Another test was applied for but I was convicted and came to prison so the test was not completed.
The applicant has provided a statement, unsigned, purporting to be a statement of his sister and AL. The applicant acknowledged that much of the statement was dictated by himself from his detention centre. In the statement, AL states:
As a mother of his child that is going through hard times rising [sic – raising] 4 kids on her own is not being easy, when his kid is showing same difficulty already in schooling all of those urging me to his support,as Australian i [sic) will never allow my child to be move into unknown country …
The applicant believes Z was born in 2011 or 2012 but has had no contact with him since he has been either incarcerated or in detention. There is some evidence that the applicant saw Z after he returned from working in Queensland when Z was a baby. The applicant states that he provided some money to AL. Another person (L2) was supporting Z at about the time of the applicant’s return from Queensland in 2011 or 2012. The applicant has not seen Z since his incarceration or in detention, namely for the past nine years. Two photographs have been provided purporting to show AL and a boy approximately 12 years old which is said to be Z.
The statement of AL states that she has undergone DNA testing which has established that a male with whom AL had a relationship with is not the father of Z. However, there is no evidence of DNA testing which establishes that the applicant is the father of Z.
The psychological report of Mr Wright contains comprehensive details of the applicant’s background and of his life. No mention is made of the fact that the applicant had a son. Under the heading of ‘Interpersonal Background’ the applicant gave details of his relationship with AL, which the applicant stated was of about three or four months duration. He did not inform Mr Wright that there was a son born of this relationship. When questioned by the Tribunal, the applicant stated that he did not provide the information because he was not asked. Further, the applicant states that his lack of contact with Z has resulted, not from his ‘negligence’ but solely due to his incarceration.
The Tribunal notes that the applicant appears to have had continuing contact with his nieces and nephews by telephone, the youngest of which appears to be 16 years of age. It is difficult to ascertain the continuity of such contact in view of the periods of incarceration and the detention of the applicant, but any such contact would be detrimentally impacted by the applicant’s removal to another country.
The Tribunal considers that the best interests of Z, if Z is indeed the applicant’ son, would be best served by the applicant remaining in Australia. The Tribunal is prepared to accept that there is some evidence that Z is the applicant’s son, but the evidence is meagre.
Of the applicant’s nieces and nephews, the applicant claims to speak with them by telephone and keep contact with them, the last contact being approximately a week prior to the hearing. The Tribunal is also prepared to accept that although the association has been tenuous, mainly because of the applicant’s incarceration in respect of the youngest niece, it would be preferable for the applicant to remain in Australia. The Tribunal also notes that with respect to the adult nieces and nephews, the applicant lived with them as part of the family of his sister both in Egypt and in Australia over several years before he was incarcerated.
The Tribunal finds that the interest of X and of the applicant’s youngest niece weighs moderately in favour of the revocation of the original decision.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is ‘in substance … adverse to any applicant’: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Tribunal notes the decision relied upon by the applicant in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23], where Deputy President McCabe stated (referring to a predecessor Direction in the same terms as the current Direction):
As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. 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 judgement about the individual and what should be done.
In Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797 at [50], Member Bygrave made observations to similar effect, stating:
I also consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectations must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.
Applicant’s background
It is essential to have a thorough understanding of the applicant’s background which has led him to commit his criminal offences.
As referred to in para [14], the applicant was born in South Sudan on 1 January 1991. He lived with his parents and his sister, AD who was about 10 years older than himself. The applicant’s father worked with the military. The applicant told the Tribunal that due to the civil unrest, security forces, known as Madola, believed his father had been spying and that one day the applicant’s uncle came to the applicant and his sister and told them to flee the country as their parents had been taken away and were believed to be spies. The applicant and AD have not seen or heard of their parents since that time.
The applicant and his sister resided in rural areas for about two years but in about 2001 they escaped by boat from Halfa to Aswan, Egypt then to Cairo. In Cairo the applicant and AD resided for a short while with an aunt, but thereafter his sister’s husband arrived with a new wife and it was necessary to find rented accommodation. Whilst in Cairo the applicant did not attend school for the first three years but thereafter, approximately between 2003 to 2005, he attended Abamous St Peter’s School, which is located in a poor area. The school was sponsored by both the church and the United Nations and many migrants and refugees attended as the applicant could not enter government schools. His schooling was interrupted on occasions when he did not have money for the bus fares to travel to school. He returned to school for a few months between 2005 to 2006. Between 2006 and 2008 the applicant worked part-time, learning to become a mechanic.
The applicant came to Australia with AD and her five children and initially stayed with their uncle in Adelaide. Their uncle had been in Australia since 2002. The applicant and AD relocated to a residence supported by the government and relied upon government support. The applicant attended a college and undertook studies in the New Arrival Program where he learnt core skills. He understood this was equivalent to about year 11.
The applicant stated that he wished to proceed to TAFE or university to qualify himself for better job skills. However, he left school and tried to find work, with little success. He began consuming alcohol and formed friendships with approximately five other young men also from the Sudan. He states that it was a consequence of his joblessness that he consumed alcohol which led him to commit the offences with which he was convicted.
In respect of his final criminal offending, namely the assault upon a female, C, the applicant stated that he formed an association with her at the end of 2010 and that they lived together for a few days or weeks. Sometimes C would stay with the applicant and his friends and sometimes they would stay at her house. The relationship was intimate.
At some stage the applicant met AL and they had a relationship for about 3 to 4 months. At some stage the applicant went to Queensland where he worked in an abattoir and it appears that the serious offending of the applicant took place after his return to South Australia.
Impact of alcohol
As is evident from the sentencing remarks, all the offending of the applicant has been due to his excessive consumption of alcohol. The psychological evidence also confirms such fact. The statement provided to the Tribunal purportedly by AD and AL is to be treated with caution as it appears to have been dictated in whole or in part by the applicant. However, the applicant notes its contents which are consistent with other material before the Tribunal. The Tribunal repeats verbatim the relevant portions of the statement as follows:
Also we sincerely apologises behalf of “Mr Garam” for his wrong decisions and behaviours against the members of our community, I repeatedly tried to warn and seek some help for his past childhood trauma and his alcohol problem but soon he moved out to live with his friends, it’s became difficult to find help for Mr Garam, that why his rehabilitation was so necessary …
Mr Garam has also promised me and his sister not going to drink alcohol or having any association with the bad crowd if being released instead focusing in hard work to provide for his kid and family, every time we talked to Mr Garam he made it clear that he changed with positive mindset knowing and understanding what it’s mean to reoffend in the future, optimistic to rebuild his and moves on to a different or better future fully aware of hurtful and difficult experiences in past, we also aware that Mr Garam have had a every slightly or minor understanding and knowledge about Australian laws and values before starting committing his offences and we are pretty confident that he did learn under and change he attitudes.
We’re extremely concerned about his mental health which he described as mental torture and suffering in detention centre.
The applicant provided extensive oral evidence and submissions. He was not legally represented at his hearing before the Tribunal. The Tribunal found the applicant to be very articulate and intelligent. He was able to answer the Tribunal’s questioning very fully and frankly. The applicant is an impressive witness.
The applicant was sentenced to imprisonment for 3 ½ years for the assault upon C. However, the applicant chose to remain in prison for the full extent of his sentence of six years. Upon completion of that sentence, he was taken into detention and he has been in detention for three years.
Throughout the nine years of the applicant’s imprisonment or detention, there is only one episode which related to any possible issue either with the authorities or with his prison or detention inmates. There is evidence that he became exasperated in 2016 when he was attempting to enrol for a course but due to some delay in assessments, he was not permitted to do so. The Tribunal accepts that this became the trigger for his loss of temper as a result of which he kicked the door. He states that he later apologised for his conduct. Such a record indicates that the applicant is not a violent person and it confirms that the violence which led to his imprisonment resulted from his excessive consumption of alcohol.
The applicant expressed a very clear and mature understanding of his alcohol issue and recognised that it was the root cause of his offending and his criminal record. The Tribunal was impressed by his evidence. The applicant is now 31 years of age and was then only 22 years of age. Hopefully his maturity has led to an understanding that any repeat of his excessive consumption of alcohol will inevitably lead to further issues with the authorities.
The Tribunal is of the opinion that the applicant can become a responsible member of the Australian society. If his application is unsuccessful, it is apparent that the applicant faces indefinite detention. The material before the Tribunal demonstrates that he would not be suitable for resettlement in any African country. This is indeed a serious consideration, as is recognised by the respondent.
The respondent has submitted that the applicant pleaded not guilty to the assault charge and continues to accept that the cause of the attack upon his victim was entirely his fault. The applicant states that the victim, who was older than him, asked him for sex and he refused and that she became angry and a fight ensued. These were not the facts which the jury found. However, the applicant states that he pleaded not guilty on legal advice and that in fact he readily acknowledges the harm which he caused to the victim.
Irrespective, the Tribunal cannot ‘impugn’ a conviction or sentence in which a deportation order is based: see Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [25] see also Aciek and Minister for Home Affairs [2018] AATA 2755 at [104] where the Tribunal referred to the fact that it will be undesirable to enter upon any further consideration of such issue given that ‘there is very little evidentiary basis to permit a fully informed assessment’. These events are now more than nine years old, and whilst the Tribunal is not empowered to question the result of the court proceedings, it can consider the circumstances which led to the offending. The Tribunal is prepared to accept that at least some of the circumstances described by the applicant may have existed which caused the dispute and the ultimate assault on the victim, although his conduct cannot be excused.
The application must be considered in respect of the future risks to the Australian community and, allied to such test, the expectations of the Australian community. Whether a person constitutes a danger to the Australian community was considered in WKCG and Minister for Immigration and Citizenship (2009) 110 ALD 434 at [25] – [26] as follows:
The question whether a person constitutes a danger to the Australian community is one of fact and degree. It is not necessary to paraphrase a language of Article 33(2) of the Refugees Convention because the words used are plain and simple English. In deciding the question, regard must be had to all the circumstances of each individual case.
Further, the Tribunal, in forming its assessment, looks to the future risks to the Australian community if the applicant were permitted to remain in Australia. Buchanan J stated in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38 [192] that:
the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
Based upon the material before it, the Tribunal considers that the applicant is not a future risk and that the Australian community’s expectations would be such that the Visa cancellation decision be revoked.
Finding on Primary Consideration D
The Tribunal considers that the Australian community’s expectations would, prima facie, weigh in favour of revocation of the original decision.
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
In paragraph 9.1 (1) of the Direction, a 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.
…
The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
At paragraph 9.1(3), the Direction states that the existence of a non-refoulement obligation does not necessarily preclude the refusal or cancellation of a non-citizen’s or non-revocation of the mandatory cancellation of their visa:
This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligations exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to the appropriate conditions.
The respondent acknowledges that the applicant cannot be returned to his country of origin, South Sudan. The applicant provided a statement describing his life in South Sudan and the reason why he fled, namely the ethnic civil war in that country. The Tribunal notes that given the applicant’s personal circumstances, the applicant will not be removed to South Sudan in the event that the original decision is not revoked.
The Explanatory Memorandum to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 explains the impact of new subsection 197C(3) as follows:
The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (the Bill) amends the Migration Act 1958 (the Migration Act) to:
o modify the effect of section 197C to ensure it does not require or authorise the removal of an unlawful non-citizen (UNC) who has been found to engage protection obligations through the protection visa process unless:
o the decision finding that the non-citizen engages protection obligations has been set aside;
o the Minister is satisfied that the non-citizen no longer engages protection obligations; or
o the non-citizen requests voluntary removal; and
ensure that, in assessing a protection visa application, protection obligations are always assessed, including in circumstances where the applicant is ineligible for visa grant due to criminal conduct or risks to security.
The purpose of the bill is identified as follows:
The purpose of the Bill is to clarify that the duty to remove under the Migration Act should not be enlivened where to do so would breach non-refoulement obligations, as identified in a protection visa assessment process, including Australia’s obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
As is referred to by the High Court of Australia in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144,[1] the High Court of Australia at [94] found that Australia would contravene its non-refoulement obligations under article 33(1) and thereby its international obligations, if it were to return the applicant to a country where he would hold a well-founded fear of persecution, having already been found to have protection obligations; see further discussion of the Full Court of the Federal Court of Australia in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 [100]–[113]. As a consequence, it would lead to the result that the applicant will potentially remain in detention indefinitely in accordance with section 189 of the Act. The Tribunal considers that such an outcome is undesirable and should be avoided.
[1] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
The real prospect of a person being confined to detention indefinitely, and the fact that there is no constitutional impediment to indefinite detention was considered by the High Court of Australia at [115] of Al-Kateb v Godwin (2004) HCA 37; 219 CLR 562. The High Court was divided by a 4-3 decision that held that a non-citizen in the migration zone without a visa is a lawful non-citizen and must be detained for the purpose of removal. Where removal is not a practical option, the result will be indeterminate detention. For discussion on such question see the decision in BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1574. The difficulty arising where an applicant does not satisfy the character test, yet the prospect of indefinite detention rising was considered in XDJD and Minister of Immigration and Border Protection (Migration) [2021] AATA 2882 at [108] - [115].
The Respondent, and the Tribunal, accepts that the applicant is owed non-refoulement obligations. The Tribunal also accepts that the applicant has had a protection finding made in his favour and is owed protection obligations.
The Tribunal considers that the international non-refoulement consideration weighs heavily in favour of revocation of the cancellation decision.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(1)the non-citizen's age and health;
(2)whether there are substantial language or cultural barriers; and
(3)any social, medical and/or economic support available to them in that country.
The Applicant is now 31 years of age. He is unmarried but has resided in Australia since he was approximately 17 years of age. The applicant appears to be in good health. It is not possible to determine whether there would be substantial language or cultural barriers if he were returned to another country, because it is not known to which country the applicant would be sent if he is not permitted to remain in Australia. Nor is it possible to know whether the social, medical and/or economic support available to the applicant would be similar to those available in Australia
The Tribunal considers that this consideration weighs in favour of revocation of the cancellation of the applicant’s visa.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235, Kerr J noted that statements and information provided by victims must be taken into account, regardless as to whether they are adverse to or consistent with the interests of the applicant. A failure to do so is to deny the victim the limited opportunity they are entitled to in such proceedings. It is a matter for the Tribunal to determine the weight they assign to such statements and information.
The Tribunal considers that this consideration weighs only slightly in favour of revocation.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has resided in Australia since he was 17 years of age. There is no evidence that he has engaged in regular employment since his arrival. Nor is there any evidence that he has contributed to the Australian community through his work other than the fact that he worked at an abattoir for a period apparently less than 12 months.
Impact on Australian business interests
This consideration is not relevant in this matter.
Impact on victims
The Tribunal notes the observations of the sentencing magistrates and also the police records that the victim suffered significant injuries. By way of bruising and a possible minor fracture. However, there is no evidence of any permanent injury to the victim, C.
This consideration weighs against revocation of the original decision.
Finding on Links to the Australian Community
The applicant has his only family residing in Australia, namely his sister and his three nephews, two nieces and his putative son, Z. There is no evidence of any other links to the Australian community. If removed to another country, the applicant will have no family links in favour of wherever he is located. The Tribunal finds that, overall, this consideration weighs in favour of revocation of the original decision.
A submission was made on behalf of the applicant as follows:
The idea of punishing a person further for a criminal offence is repugnant to the majority of the Australian community.
It is well-established that the Minister cannot regard visa cancellation or deportation as a form of punishment for past events, as per Tamberlin, Sackville and Stone JJ in Djalic v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 151 at [58].
The Tribunal refers to the decision of Folau v Minister forImmigration and Border Protection [2016] FCA 1149 at [11) where Pagone J said:
It is well-established that the Minister cannot regard Visa cancellation as a form of punishment for past events.
Accordingly, no element of punishment is involved in an administrative decision not to revoke an original decision for revocation of a visa. In Falzon v Minister for Immigration and BorderProtection [2018] HCA 2; 61 ALR at [94] Nettle J said in relation to the difference between a result of criminal proceedings and proceedings for Visa cancellation, inter alia:
By contrast, powers of the kind conferred on the Minister by s 501 (3A) give effect to parliament’s right to rid the nation of persons who, in the judgement of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation.
His Honour also said [94] that the Tribunal must determine whether the continued presence of the applicant: ‘would be opposed to the safety and welfare of the nation’.
The Tribunal, in determining the task before it, namely to consider whether there is ‘another reason’ why the decision should be revoked, must decide such issue on the balance of probabilities: see Viane v The Minister for Immigration and Border Protection (2018) FCAFC 116; 162 ALD 13 per Colvin J at [64] where her Honour said:
It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the Visa cancellation that the decision should be revoked. Only a reason of that character and enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
The Tribunal is satisfied that there is ‘another reason’ which would warrant the Minister’s decision being set aside. Although the applicant does not satisfy the character test, the Tribunal takes into consideration the circumstances of the critical offences which has led to the imprisonment of the applicant. The Tribunal has also noted the background of the applicant, of his exemplary conduct for the past nine years; the fact that, with appropriate treatment and the support of his sister, the applicant who now has insight into his alcohol risk, will overcome such temptation to alcohol in the future. In this case, taking into consideration the period of nine years during which the applicant has forfeited his freedom, it would be a very harsh result indeed for his freedom to be suspended indefinitely.
Conclusion
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal finds that, with regard to the primary considerations:
(11)the finding in respect of primary consideration A weighs strongly against revocation;
(12)the finding in respect of primary consideration B weighs against revocation;
(13)the finding with respect to primary consideration C weighs moderately in favour of revocation; and
(14)the finding in respect of primary consideration D weighs in favour of revocation.
With regard to other considerations:
(a)the finding in respect of international non-refoulement obligations weighs heavily in favour of revocation in the assessment under section 501CA (4) of the act;
(b)the finding in respect of the extent of impediments if the applicant is removed weighs strongly in favour of revocation;
(c)the finding in respect of impact on victims weighs against revocation; and
(d)the finding in respect of links to the Australian community weighs in favour of revocation.
The Tribunal finds that, in this matter, it is satisfied that on balance, when weighing the primary and other considerations as discussed above, there is ‘another reason’ why the cancellation of the applicant’s visa should be revoked.
decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister dated 25 May 2022 not to revoke the mandatory cancellation of the Applicant's Class XB, Subclass 202 Global Special Humanitarian visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Class XB, Subclass 202 Global Special Humanitarian visa (‘the visa’) visa is revoked.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
.....................................[sgd]...................................
Associate
Dated: 6 September 2022
Dates of hearing: 8, 9 & 10 August 2022 Applicant: Self-represented Solicitors for the Respondent: Mr Alex Chan, Sparke Helmore Lawyers
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