GCRM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4850
•2 December 2020
GCRM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4850 (2 December 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1822
Re:GCRM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:2 December 2020
Place:Adelaide
The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 17 August 2018.
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Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – other considerations outweigh primary considerations - decision set aside
MIGRATION – jurisdiction – the Tribunal’s power to revoke a decision under s 501CA(4) – whether the applicant made representations in response to the Minister’s invitation within the period of 28 days prescribed by the Migration Regulations 1994
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Ali v Minister for Home Affairs [2020] FCAFC 109
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151
DFTD v Minister for Home Affairs [2020] FCAFC 207
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
GCRM v Minister [2020] FCA 678
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration & Border Protection v Kumar (2017) 260 CLR 367
Murray v Chief Examiner (2018) 273 A Crim R 153
Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Public Transport Commission of New South Wales v J Murray — More (NSW) Pty Ltd (1975) 132 CLR 336
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
SZTAL v Minister for Immigration & Border Protection (2017) 262 CLR 362
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uhrle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3522
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
INTRODUCTION
This hearing arises from orders made by the Federal Court on 20 May 2020 which set aside and remitted the decision of the Tribunal made on 24 June 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).[1]
[1] All references to legislation are to the Migration Act unless otherwise stated.
THE DECISION TO CANCEL THE VISA
On 17 August 2018, the applicant’s Child (Migrant) (Class AH) (Subclass 101) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 1 April 2019, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision. The Minister now contends that the non-revocation decision made by his delegate must be affirmed by the Tribunal and that the Tribunal has no power to revoke the cancellation decision because the applicant did not make representations in accordance with the Minister’s invitation under s 501CA(3) with the effect that s 501CA(4)(a) is not satisfied, and the power to revoke the cancellation decision is not enlivened. This contention finds support in the decision of BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176. Justice Kratzmann in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 was not satisfied that the decision of BDS20 was plainly wrong. However, since the hearing of this matter, the Full Court has delivered a decision in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 which impacts upon the issue of whether the applicant made representations in accordance with the invitation, namely within the 28 day period prescribed by the Migration Regulations 1994. I turn my attention now to that factual matter.
WERE THE REPRESENTATIONS MADE WITHIN 28 DAYS?
Section 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Section 501CA(4) provides:
(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.
Regulation 2.52 of the Migration Regulations 1994 (Cth) (the Regulations) provides:
(1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.
(2) The representations must be made:
(a) for a representation under paragraph 501C(3)(b) of the Act—within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and
(b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.
…
On 17 August 2018, the applicant was given notice by letter from the Department of Home Affairs that his visa had been cancelled under s 501(3A). The applicant was incarcerated in the Casuarina Prison in Western Australia at this time and the notice was hand delivered to him. Pursuant to s 501CA(3)(b) the notice invited the applicant to make representations to the Minister about revoking the decision to cancel his visa. Instructions as to how to make representations were set out in the letter:
Time-frame to make representations about the revocation
Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.
If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s 501CA(4)(a) of the Act.
Lodging the Revocation Request Form
If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.
…
Where to send your representations about revocation
Your representations (as made in the completed Revocation Request Form) may be sent by mail, email or fax.
On the day of receiving the above notice, namely 17 August 2018, the documentary evidence shows that the applicant signed and dated the Revocation Request Form[2] and the Personal Circumstances Form[3]. Attached to the Personal Circumstances Form were letters and cards of support of various dates, the latest of which was 31 August 2018 on a letter from the prison chaplain.[4] These documents were placed in an envelope addressed to the National Character Consideration Centre Department of Home Affairs.[5]
[2] G23 p 142.
[3] G24 p 154.
[4] G26 p 167.
[5] G27 pp 182 and 183.
The applicant’s evidence, to which I will return, is that he caused the envelope containing the required documentation to be sent by mail on 3 September 2018.
The handwritten envelope and the enclosed Revocation Request Form[6] and the Personal Circumstances Form[7] were stamped as received on 17 September 2018 by the Department of Home Affairs Melbourne office of the National Character Consideration Centre.
[6] G23 p 142.
[7] G24 p 154.
By letter dated 17 September 2018 from the Department of Home Affairs the applicant was advised that his representations were not made within the prescribed time frame and that the Minister could not consider revoking the decision to cancel his visa. The letter went on to say:
Although the Department considers the matter to be closed, in the event you have concerns or queries about this matter, please contact us by email …
Upon being advised that his representations were not made in time, it appears from the documentary evidence that the applicant wrote three letters to the Department of Home Affairs in quick succession. The first letter[8] said:
On the 3rd of September I send everything back to the department. The date I send back the papers on the same date I got a support letter from my school and on the 4th of September I send the support letter to the department.
[8] G6 p 66.
The second letter[9] is dated 18 September 2018 and said:
they gave me 28 day to sent it back on September 3 I sent back on time … I believe I did send every thing on time even before time.
[9] G7 p 69.
The third letter[10] is written in the hand of another person but signed by the applicant and dated 20 September 2018. It said:
I understand that I was given a 28 days to lodge in my appeal. Within that prescribed time frame (28 days) I diligently and as a matter of urgency, prepared the appeal with the supporting documentations and then handed them over to the Prison Security to be processed and send to the designated address.
In light of my understanding, the mail was received by the Prison Security (Unit officer) on 3rd of September.
If the Department require me to file an affidavit or a supporting letter from the Prison Security that proves I mailed the application within the prescribed time frame and precisely on 3rd of September 2018, I would endeavour to do that.
I respectfully seek for re-consideration on revoking the decision to cancel my visa.
[10] G8 pp 72 and 73.
The Department of Home Affairs responded by letter dated 14 December 2018 (the Letter of Acknowledgement). I set out the complete text below:
Dear [applicant]
Acknowledgement of receipt of representations about revocation of decision to cancel your visa under s501(3A) of the Migration Act 1958
On 17 August 2018, you were notified of a decision made under s501(3A) of the Migration Act to cancel your Class AH Subclass 101 (Child) visa. You were invited in that notice to make representations about revocation of the decision to cancel your visa.
The Department considers that you have made representations in accordance with the invitation. You will be notified when a decision has been made about whether or not to revoke the decision to cancel your visa.
Yours sincerely
The Letter of Acknowledgement was written in response to the three letters from the applicant explaining that he had mailed his representations on 3 September 2018. It is apparent from the Letter of Acknowledgement that the Department of Home Affairs had considered and accepted the explanation given by the applicant. The inference to be drawn is that the Department of Home Affairs reconsidered the stance taken in the 17 September 2018 letter and accepted that the representations had been received in time. The Letter of Acknowledgement said that ‘The Department considers that you have made representations in accordance with the invitation.’ The only plausible explanation for making that statement is that the Department of Home Affairs had in fact received the applicant’s representations within the required period of 28 days and that the representations were made in accordance with the invitation. The letter was a clear acknowledgement of that fact. The contemporaneous documentary evidence from the applicant supports that fact because if the applicant caused the representations to be mailed on 3 September 2018 then one would expect that they would have arrived at the Melbourne address of the National Character Consideration Centre well before the deadline of 14 September 2018 (being 28 days after 17 August 2018). The respondent did not call any witness to verify the date of the receipt of the representations or as to any practice of recording the date of the receipt of correspondence in the National Character Consideration Centre. I accept that the date stamp of 17 September 2018 is evidence in support of a finding that the representations were received on that date, but that evidence is not conclusive and there is evidence to the contrary. The uncontradicted evidence from the applicant is that he caused the representations to be mailed on 3 September 2018. Further, it is significant that the respondent acknowledged that the representations were received within the prescribed period from which one can draw a very strong inference that they were received in time and that they were made in accordance with the invitation. The respondent called no evidence to explain why, after receiving the three letters of explanation from the applicant, the Department of Home Affairs acknowledged that the representations were made in accordance with the invitation. In all of these circumstances, I find on the balance of probabilities that the applicant’s representations were received by the respondent before 17 September 2018 and within the 28-day period prescribed by the Regulations.
There is further support for my finding because the respondent continued to act in a way consistent with the applicant having made the representations within the prescribed period. For example, the letter of 1 April 2019, which advised of the decision to not revoke the cancellation decision, expressly acknowledged again the timely receipt of the representations as follows:
You were invited to make representations to the Minister about revocation of the original decision, and you made representations within the period and in the manner specified. (emphasis added)
The effect of the 1 April 2019 letter is to expressly acknowledge (again) that the applicant had complied with the 28-day period prescribed by Regulation 2.52(2)(b). The obvious inference to be drawn from the acknowledgement is that the applicant had in fact made his representations as required.
The statement of reasons for decision[11] dated 1 April 2019 finds that:
… these representations were made within the period and in a manner set out in the regulations. Thus, I find that [the applicant] has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.
[11] G14 p 97.
I accept that there is an apparent inconsistency between that finding and the preceding statement that ‘On 17 September 2018 [the applicant] made representations seeking revocation of the mandatory visa cancellation decision.’ However, that unexplained inconsistency does not detract from the fact that the respondent accepted that the representations were made within the prescribed period as set out above.
The applicant sought review of the non-revocation decision. The hearing in the Tribunal and a subsequent application for judicial review in the Federal Court proceeded on the basis that the applicant had made representations in accordance with the invitation and within the prescribed period. It was not until 21 October 2020 when the respondent provided a statement of facts, issues and contentions in these proceedings that it was asserted that the applicant did not make representations in accordance with the invitation under s 501CA(3). For the period from 14 December 2018 to 21 October 2020 the applicant was acting on the assumption that the respondent acknowledged that he had made his representations in accordance with the invitation.
There has been no attempt by the respondent to explain the inconsistency between, on the one hand, the recently taken position and, on the other hand, the apparent acceptance of the applicant’s explanation that he sent his representations on 3 September 2018 and the acknowledgment for 22 months that the representations were received within the 28-day period. The respondent relies upon the received date stamp of 17 September 2018 which appears on the Revocation Request Form[12] and the Personal Circumstances Form[13] as evidence of the date that the representations were made.[14] However, the respondent was aware of the date stamp as at 14 December 2018 but had accepted at that time (and up until 20 October 2020) that the applicant had in fact made his representations within the 28 day period and in accordance with the invitation. As previously found, it is inherently plausible that the respondent did receive the applicant’s representations within the required period. I do not consider the date stamp to be conclusive as to the date that the representations were made.
[12] G23 p 142.
[13] G24 p 154.
[14] Respondent’s Statement of Facts, Issues and Contentions at [12] and [32].
In light of my factual finding that the representations were made within the prescribed period of 28 days, the cases relied upon by the respondent can be distinguished. In the case of BDS20,[15] Sillars[16] and Uhrle[17] the representations were not made within the 28-day period, but the Minister went ahead and made a decision to not revoke the cancellation decision. In the circumstances of those cases where there was a finding that the representations had not been made in accordance with the invitation, the only decision that the Minister could make under s 501CA(4) was to not revoke the original decision.
[15] BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176.
[16] Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313.
[17]Uhrle and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3522.
The Full Court decision in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 considered a factual situation very similar to this case. It construed the legislation to find that representations were made not when they were received by the Department but rather when they were dispatched by the applicant from prison. It is useful to quote extensively from Stewart:
A preliminary point
[10] In submissions filed 14 days before the hearing of the application, the Minister for the first time in the history of the matter raised a particular issue as a preliminary point. It is that the applicant’s representations to the Minister to revoke the cancellation of his visa were not received by the Minister, and were hence not “made” within the meaning of s 501CA(4)(a) of the Act, within the 28-day time period provided for such representations. The result, so it was submitted, is that the power to revoke the cancellation of the visa was not enlivened. It was submitted by the Minister that the application must therefore be dismissed because a decision to revoke the cancellation of the visa could not have been lawfully made and even if now remitted to the Minister, it could not lawfully be made.
[11] There is authority for the proposition that if representations under s 501CA(4)(a) are not made within the 28-day time period that is provided for in the regulations then the power to revoke the visa cancellation is not enlivened, and on that basis any judicial review of a decision not to revoke the cancellation must fail: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (Stewart J); Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 (Katzmann J). The correctness of that proposition was not challenged in this case.
[12] However, as will be seen, the preliminary issue raises a question that was not raised in or dealt with by those authorities, namely when is it that a person “makes” representations within the meaning of s 501CA(4)(a)? Is it only when the representations are received by or on behalf of the Minister, as contended by him, or is it at some earlier time such as when, as in this case, they are dispatched by being given to the prison authorities for posting, as submitted by the applicant?
…
[23] The applicant signed and dated his representations for the revocation of the cancellation decision on 10 June 2019, ten days before the deadline. The evidence is that on that day he asked NSW Corrective Services officers if they could fax or email his representations to the Department, but the prison did not have the requisite facilities. The representations were apparently posted by NSW Corrective Services because they were received by the Department by post on 25 June 2019, five days after the deadline and a full 15 days after they had been given by the applicant to NSW Corrective Services officers for posting. The return address recorded on the envelope was the Mid North Coast Corrective Centre but the date that it was posted is not apparent.
[24] It is not known whether the Corrective Services officers delayed in posting the representations or whether the representations were delayed in the post. In either event, what is clear is that the applicant, being in prison, could practically have done no more to get his representations to the Department before 20 June 2019 than what he did. That was to ask Corrective Services officers on 10 June 2019 to email or fax them and on being advised that there were no facilities to do that, to ask them to post the representations. He was otherwise entirely at the mercy of Corrective Services and the postal service.
…
[28] No point was taken by the Minister in the proceeding before the Tribunal with regard to the lateness of the applicant’s representations. The Tribunal decision thus proceeds on the basis that the representations were validly made and that the power of revocation was thus, in that sense at least, enlivened.
When are representations “made”?
[29] The Minister submits that in terms of s 501CA(4)(a) the representations must be made “in accordance with the invitation”, and in this case since the invitation made explicit that the representations “MUST be received by the Department” (emphasis in original) within the 28-day time period and they were not received within that period of time, they were not made in accordance with the invitation.
[30] We do not accept that submission. The Minister cannot by the terms of the invitation determine the meaning of the Act and the Regulations. Whether or not the time when the representations are “made” within the meaning of the legislation is when they are received by the Minister as stated by the Department in the notice, or at some other time, is to be answered by a proper process of construing the legislation. That cannot include what the Minister or the Department subsequently said the legislation means. Also, the time provided for in the Regulations cannot be truncated by the terms of the invitation.
[31] The Minister also submits that applying the natural and ordinary meaning of the language of ss 501CA(3)(b) and 501CA(4)(a), representations are not “made to the Minister” until they are actually available to, i.e. received by, the Minister. He submits that one would not ordinarily understand a person to have made a representation to another person until the other person is in a position to understand that representation.
[32] However, in the ordinary course, representations would not be considered to have been made “to” someone until that person had read or heard them. So on that approach, even if representations were received by the Minister’s office within the time period, if the Minister delayed until after the time period before reading them, which is practically inevitable in a busy bureaucracy, then the representations would have been made out of time. That would be a patently absurd and unintended outcome. Thus, little can be gained from focusing on the word “to”. It is necessary to take a broader approach to the task of statutory construction.
[33] The importance of starting with the statutory context and text was emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; 262 CLR 362 in the following passage:
14.The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[34] The statutory context to the interpretive task includes that the person who wishes to make representations under s 501CA for the revocation of a cancellation decision is necessarily in custody. That follows from s 501(3A)(b) under which the visa is mandatorily cancelled, i.e. the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. It is also confirmed by the reference in s 501CA(1) to the person serving a sentence of imprisonment.
[35] Such a person is not at liberty. They cannot do what people at liberty can do, and they cannot be expected to do what people at liberty can be expected to do. They are at the mercy of their gaolers and must depend on them to transmit, whether by some electronic or digital means or by post or other physical means, their representations in favour of revocation to the Minister.
[36] That is a critical part of the context because, if the Minister’s submission that representations are not “made” until they are received is correct, then the prisoner who wishes to seek revocation of a visa cancellation is entirely at the mercy of their gaolers; no matter how careful and diligent they are in their efforts to get their representations to the Minister on time, if their gaolers do not cooperate or are careless or otherwise remiss in acting promptly, the representations may be received by the Minister out of time or not at all. As a consequence, the prisoner would lose the possibility of a revocation decision in their favour.
[37] That is a particularly harsh and unjust consequence which unless required by the statutory language would not be regarded to have been intended. In that regard, the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed, and the process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky at [96] per McHugh, Gummow, Kirby and Hayne JJ.
[38] Also applicable, given the harsh consequences of removing the prisoner’s ability to meet the time limit imposed on seeking revocation of a mandatory visa cancellation from their control and leaving their ability to send any representation under s 501CA to the Minister in the complete control of their gaolers, is the presumption that, relevantly, absurd, capricious or unreasonable consequences should be avoided. Thus, “where two meanings are open … it is proper to adopt that meaning that will avoid consequences that appear irrational and unjust”: Public Transport Commission of New South Wales v J Murray — More (NSW) Pty Ltd [1975] HCA 28; 132 CLR 336 at 350 per Gibbs J; Legal Services Board v Gillespie-Jones [2013] HCA 35; 249 CLR 493 at [48] per French CJ, Hayne, Crennan and Kiefel JJ.
[39] Under the statutory scheme, a visa is mandatorily cancelled under s 501(3A) if the visa holder does not pass the character test because of the operation of para (6)(a) (substantial criminal record) on the basis of paras (7)(a), (b) or (c), or para (6)(e) (sexually based offences involving a child), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution. The threshold for such a mandatory cancellation includes if the visa holder has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)) or if a court in Australia or elsewhere has found the person guilty of a sexually based offence involving a child even if the person was discharged without a conviction (s 501(6)(e)).
[40] The result is that s 501(3A) of the Act prescribes the mandatory consequence of the person’s relevant offending and a sentence of full-time imprisonment entails that their visa is cancelled. In some cases, that consequence may not be particularly harsh and may do no injustice. For example, a relatively young person on a short-term visa, with little connection to Australia and a full and safe life ahead of them elsewhere, may find the cancellation of their visa no more than an irritation. In another case, the consequence may be devastating and, on the face of it, unjust or unfair. An example would be an older person who has lived in Australia for almost their whole life, had long since qualified for citizenship but not acquired it, not out of conscious choice but from ignorance or disadvantage, and has no connection at all to another place and little if any prospect of establishing a meaningful or fulfilling life for themselves there. Another example, taken from Minister for Home Affairs v Omar [2019] FCAFC 188; 272 FCR 589 (at [40]), is if the person was returned to another country they would likely be chained, imprisoned and at risk of physical injury because of that country’s treatment of the mentally ill.
[41] The statutory scheme provides the mechanism to ameliorate the hardship that might be caused by a mandatory cancellation in a particular case. That is by giving the visa holder the ability to make representations to the Minister to revoke the cancellation on the grounds that the person actually does pass the character test (s 501CA(4)(b)(i)), or there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). In a case at the low end of the spectrum of harshness, there would on the face of it be no other reason for revocation. But at the other end of the spectrum, the reason for revocation may be glaring and obvious. It is the extraordinary harshness that could be meted out to the person. But even then, the Minister might not revoke the cancellation when not only the harshness of the consequences of the cancellation is taken into account but also other relevant considerations such as the risk of reoffending and the protection of the Australian community.
[42] That analysis of the statutory scheme demonstrates the importance of the person’s ability under s 501CA(4) to have the cancellation reconsidered by the Minister. Absent such reconsideration there is no opportunity in the statutory scheme for “another reason” to revoke the cancellation to be considered. It cannot have been intended by the Parliament that that could be lightly taken away. Requiring the person to act promptly in making their representations for revocation is readily understandable, but to leave them powerless, because of their status as a prisoner, to ensure that those representations are actually received by the Minister within a particular time period is an unreasonable result which the text of the provisions does not on the face of it require. That text should therefore not be construed so as to require that result.
[43] The statutory context thus tells strongly against the interpretation that “made” means “received”. Rather, in this context, it means “dispatched”.
[44] Insofar as the text itself is concerned, the requirement in reg 2.52(2) that representations must be “made” within the stipulated time period stands in contrast to the requirement in reg 2.53(1) that information or material referred to in s 501D to satisfy the Minister that a person passes the character test must be “received” by the Minister within the stipulated time period. That is notwithstanding that s 501D provides that the information or material must be “submitted” within the period ascertained in accordance with the Regulations. Different language in a statute or statutory instrument is generally to be taken as intending a different meaning unless the words are in themselves sufficiently clear: Commissioner of Taxes (Vic) v Lennon [1921] HCA 44; 29 CLR 579 at 590 per Higgins J; Project Blue Sky at [71]; Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; 169 FCR 151 at [53] per Lander J; Murray v Chief Examiner [2018] VSCA 144; 273 A Crim R 153 at [41] per Whelan, Beach and Niall JJA.
[45] In this instance, the meaning of the word “received” is clear. The word “made” or “makes” is not. Had “received” been intended it could easily have been used but was not. The presumption therefore operates and supports the proposition that “made” in reg 2.52(2) does not mean “received”.
[46] The Minister submits that, fundamentally, reg 2.52 deals with a time period — the context of that fundamental purpose is to create certainty. He submits that if one were to construe the word “made” as simply being “expressed” (or, we infer, dispatched), that would not promote certainty because the Minister could potentially be uncertain at all times as to whether a decision on the revocation of a cancellation was required.
[47] The more compelling consideration is that the uncertainty for the prisoner that arises from the Minister’s interpretation is more prejudicial and thus presumptively to be avoided than any uncertainty arising from the contrary interpretation. That prejudice arises from the uncertainty of a prisoner who has no independent ability to communicate representations to the Minister, having dispatched, or given to the prison authorities to dispatch, representations calling for revocation well within the time period and then not knowing, and not being able to do anything about, whether they have been received in time. In those circumstances, the prisoner does not know whether they are subject to removal from Australia at any time or whether their revocation request is being considered. The Minister, on the other hand, is not waiting for anything and does not suffer prejudice from any uncertainty consequent on the contrary interpretation. If the Department, not knowing that a revocation request has been dispatched, makes moves to remove the prisoner, the prisoner will doubtless immediately bring the fact of the revocation request to the Department’s attention and no harm should have been done.
…
[50] Here, ss 501CA(3)(b) and 501CA(4)(a) and reg 2.52 are concerned with affording a person who is currently in prison a real opportunity, within a specified period, to make representations to the Minister as to why the cancellation should be revoked. The statutory context contemplated and intended that the prisoner would have a limited capacity to communicate with the Minister. That was because of the effect of the deprivation of the person’s liberty and consequent limitations on their ability to arrange for, or ensure, delivery of any representations that they might make. Rather, the legislative expressions “makes” and “made” in s 501CA and reg 2.52 focus on the act of the prisoner, not the position of the Minister as the intended recipient of the representations. It can readily be inferred that, in such a context, the statutory language contemplated and intended that the prisoner only do all that was reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.
[51] The prisoner, in a case like the applicant’s, could not use any email or facsimile facilities at the prison to send his representations because the prison authorities either did not have those facilities or would not make them available to him. All he could do was to give the representations he had already written to the prison authorities and entrust to them the task of communicating them to the Minister as and when they saw fit. He had no control whatsoever over the timing of when the prison authorities might choose to send his representations to the Minister.
[52] The Minister seeks to find some support for his interpretation in BDS20 and Sillars. Those efforts are, however, futile in view of the fact that the question of whether “made to the Minister” means “received by the Minister” was not in issue in those cases and they say nothing about that question.
[53] The Minister also refers to Minister for Immigration and Border Protection v Kumar [2017] HCA 11; 260 CLR 367 at [25] and [36] in support of the proposition that the representations are made when they are received. That case concerned an application for a 572 visa, one of the conditions of which specified in cl 572.211 of Sch 2 to the Regulations was that the applicant was the holder of a visa of a specified class or subclass at the time that the application was “made”. The application was posted at a time when the applicant was such a visa holder, but it was received by the Department on a Monday which was the day after that visa expired, being the Sunday. The question in the case was whether the applicant enjoyed the benefit of s 36(2) of the Acts Interpretation Act 1901 (Cth) which provides that if an Act “requires or allows a thing to be done” and “the last day” for the doing of the thing is, relevantly, a Sunday then the thing may be done on the next day. It was held, by a majority, that s 36(2) was not engaged because no time limit was imposed for the making of the visa application; the requirement that the applicant was the holder of a specified class or subclass of visa at the time that the application was made was a criterion for the issue of the visa and not a time limit on the application.
[54] Kumar is no authority in support of the Minister’s preliminary point in the present case because in that case it was common ground that the visa application was made when it was received by the Department: at [25], [32] and [37]. Thus, the question of when the application was “made” was not examined. But in any event, the statutory context was quite different, including that an applicant for a 572 visa was not necessarily in prison.
[55] In the result, the Minister’s preliminary point should be dismissed. The applicant made his representations when he gave them to the Corrective Services officers to be sent to the Minister. That was well within the 28-day time period allowed under the Regulations.
Applying Stewart to this case, the applicant made his representations when he handed them over to Prison Security to be processed and sent to the designated address. That occurred on 3 September 2018 which was well before the 28-day period expired.
I find that the Tribunal does have power to consider the applicant’s representations and to make a decision under s 501CA(4) because the representations were made within the prescribed period and in accordance with the invitation. It follows that s 501CA(4)(a) is satisfied and it remains to determine under s 501CA(4)(b) whether the applicant passes the character test or there is another reason why the cancellation decision should be revoked.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has ‘a substantial criminal record’ as defined under s 501(7). Consequently, s 501CA(4)(b)(i) is not satisfied. The applicant concedes the same.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[18]
[18] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
THE OFFENDING
The offending by the applicant took place over a 6-month period in 2016. The circumstances of his offending were described by Jackson J in GCRM v Minister [2020] FCA 678 at [3] as follows:
The applicant was 16 years old when he arrived in Australia. He commenced offending approximately two years after that, and has been convicted of numerous offences since then. There was evidence that the applicant had been abusing alcohol regularly from about 18 years of age, being in the habit of drinking a bottle of Jim Beam whiskey each day. The offences include multiple convictions for burglary, a conviction for assault of a public officer, a conviction for common assault, and two convictions for separate incidents of aggravated robbery. The assault of a public officer was for throwing a brick at a police cadet who was trying to apprehend the applicant when he was fleeing from an incident that had been reported to police. The common assault involved punching a shop assistant twice in the face when the attendant approached the applicant while he was trying to take a pair of jeans from the shop. The incidents of aggravated robbery involved taking mobile phones from victims at different train stations on the same night. The applicant was in the company of juveniles at the time. Both victims were pushed or dragged to the ground and punched and kicked. One of the victims was a minor, being 15 years old.
The applicant was given a suspended sentence on 23 May 2016 for his initial offending but was warned by the Magistrate that he must stay out of trouble. Despite this warning, the applicant went on to commit further offences in July and August 2016 and he was later sentenced to a term of imprisonment for 2 years for his ‘serious violent crime’.
EVIDENCE
The applicant gave oral and written evidence as follows.
The applicant was born in a refugee camp near the border of Kenya and became separated from his mother and father at an early age. He and his sister lived with their grandma and moved around a lot and lived with different people. Life was hard and they witnessed a lot of violence including robberies and shootings. When he was about 12 years old his father managed to learn of their whereabouts and took steps to resettle them in Australia, where the father was then living. The applicant and his sister arrived in Australia in 2014 and lived with their father which was ‘the best thing ever.’
The applicant commenced learning English and going to school and playing soccer. After a while he started hanging out with the wrong people and drinking which led to his offending. He realises now that his drinking with the wrong crowd caused most of his problems and that he needed to stop and to get better. Whilst in prison and detention he completed courses and education including Bible studies. He regrets what he did and wants to be released so he can spend time with his family, in particular his younger siblings who enjoy playing soccer with him. He remains very close with his sister who has finished year 12, got a diploma and is working.
He is still affected by some of the things he saw in South Sudan. He has had trouble sleeping at night and sometimes screams in his sleep because of the nightmares he has. He is scared of being returned to South Sudan because it is dangerous, and he has no known family there.
I was impressed by the applicant’s oral evidence. He said that he had learnt a lot in the four years he has been in prison and detention. He received counselling about how to stay out of trouble and he started to read books about the mind. He felt like a new person with a reason to live and something to give the world. He is proud that he has stayed out of trouble in prison and completed so many educational courses. He wants to continue his education as a water engineer if released, and his cousin has offered him a job in construction. He spoke about wanting to be returned to his family and in particular his three half siblings who are aged 10, 13 and 16. He welcomes the support he would have from the Kakwa community and his family.
In cross examination, when asked about the aggravated robbery, he said ‘we were all intoxicated, but we did it and I fully take responsibility.’
The applicant’s 21-year-old sister and their father gave written and oral evidence. They confirmed the harsh and dangerous childhood the applicant experienced. They also confirmed the support they and others would provide the applicant if he were released. They are very fearful of what would happen to the applicant if he were returned to South Sudan.
The secretary of the Kakwa Association of Western Australia, Data Godfrey, gave written and oral evidence about the support that was available to the applicant if he were released. He spoke of the applicant’s father who is an executive member of the Association in charge of culture and traditional affairs. He spoke of the projects they organise to keep their youth active and out of trouble.
The applicant also called a forensic psychiatrist, Dr Nina Zimmerman who prepared a written report dated 26 October 2020. I will come back to her evidence.
LEGISLATIVE FRAMEWORK
Under s 501(3A), 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 because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[19]
[19] s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[20] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[20] s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[21]
[21] Direction 79 at 6.1.
The guiding principles in paragraph 6.3 of Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
(2)The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
o Protection of the Australian community
o The best interests of minor children in Australia
o Expectations of the Australian community
·Other considerations include (but are not limited to):
o International non-refoulement obligations
o Strength, nature and duration of ties
o Impact on Australian business interests
o Impact on victims
o Extent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Factors that I must have regard to under paragraph 13.1.1 include:
·the principle that violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
·the sentence imposed by the courts for a crime or crimes (subject to the preceding dot point); and
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The applicant’s offending included violent assaults and burglaries which are very serious with severe consequences on the victims. There were numerous offences repeated over a relatively short period of 6 months. He threw a brick at a police cadet and assaulted juveniles by punching and kicking them. The applicant continued to offend despite the clear warning from the Magistrate who imposed a suspended sentence mid-way through the crime spree. Most of the offending took place whilst intoxicated and in the presence of others. He was 18 years old and had been in Australia for about 2 years.
The applicant’s offending is plainly very serious, and it demonstrates a disregard of judicial orders and authority. He was sentenced to prison for 2 years which reflects the severity of the offending. However, the offending was confined to a 6-month period when the applicant was consuming large amounts of alcohol.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
Nature of harm if further criminal conduct
If the applicant were to engage in further similar offending the harm to the Australian community would be serious because it involved unprovoked kicking and punching and stealing which results in physical, psychological and financial harm to innocent members of the Australian community including minors.
Likelihood of further criminal or other serious conduct
The respondent contends that the applicant poses a real and unacceptable risk of reoffending. In support of this contention the respondent says the applicant has not sufficiently addressed factors such as alcohol that led to his offending. The respondent says that the applicant had support from his family and community before and it did not deter him from offending. The respondent relies upon a pre-sentence report (for his 12 December 2017 sentencing) which assessed him to be a moderate to high risk of future violence.[22]
[22] See sentencing remarks at G18 p 122.
The applicant relies upon the report of Dr Zimmerman which concludes that he poses a low risk of violence in the future. She says in her report that:
[86] … All his violent offending occurred within a 6-month period. The key factors of relevance in [the applicant’s] offending are his heavy drinking and association with antisocial peers. There is also his history of trauma and resulting PTSD which is likely to have increased his tendency to drink heavily. These factors are all recognised as relevant by [the applicant], services exist to assist him in all these areas and he is in a better position to engage and benefit from these services than he was at the age of 18.
[87] There is no risk of imminent violence as he is currently free of alcohol and has been for four years. These years abstinent from alcohol enhance the risk of remaining free from alcohol in the future – he has had to develop alternative coping strategies in a high-stress environment. While [the applicant] remains symptomatic in terms of his PTSD, it is important to note that it was the use of alcohol that was associated with his offending rather than the PTSD symptoms themselves.
[88] There is no history of violent offending over the past 4 years since [the applicant] was 18. The relevance of the maturation process in [the applicant’s] case should not be understated.
It is relevant to the risk of further offending that the applicant will have the support of his family and community services. Noting paragraph 8(2) of Direction 79, it is appropriate to give substantial weight to the opinion of Dr Zimmerman as an independent and well qualified expert whose opinions were not contradicted by any other expert testimony.
Dr Zimmerman noted[23] that the applicant identified his cousins as positive people for him to associate with and stated that they spend time playing soccer rather than drinking. He said that he has not been drinking or even smoking cigarettes whilst in prison and detention and believes that this has given him a good start for when he goes home. He said that his sisters and stepmother have never consumed alcohol and his father no longer drinks. Dr Zimmerman noted that he has demonstrated insight into the link between alcohol and his offending. I find that the applicant’s remorse is genuine and is based upon appropriate insight into the factors that led to his offending.
[23] Exhibit 3, Psychiatric Report by Dr Nina Zimmerman at [70].
I conclude that the applicant poses a low risk of committing further offences.
Risk to the Australian community
In considering the risk to the Australian community I must have regard to, cumulatively, the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[24] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[24] (2014) 225 FCR 424.
Conclusion as to protection of the Australian community
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[25] In this case the nature of the harm upon reoffending is serious but the likelihood of reoffending is low. I do not consider that the harm to the Australian community is so serious as to pose an unacceptable risk.
[25] Direction 79 at 13.1(1).
I conclude that the primary consideration of protection of the Australian community weighs in favour of non-revocation of the cancellation decision because there remains some risk, albeit a low one, of reoffending.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The factors that I must consider and that are relevant to this application include:
·the nature and duration of the relationship between the child and the applicant. 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;
·the extent to which the applicant is likely to play a positive parental role in the future;
·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant has no children of his own, but he does have three minor half-siblings with whom he has developed a loving relationship since coming to Australia in 2014. They enjoyed playing soccer together before his incarceration, and they have maintained their relationship by visits, phone calls and letter writing.
I give less weight to this relationship because it is non-parental and because contact has been limited by his incarceration. The applicant would play a positive role in the lives of the three siblings, noting their ages of 10, 13 and 16. They would be very upset if the applicant were not released and I consider revocation of the cancellation decision to be in the best interests of these children.
Expectations of the Australian community – 13.3 of Direction 79
Clause 13.3(1) provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection,[26] Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[27]
[26] [2017] FCA 1466.
[27] [2019] FCAFC 185.
The expectations of the Australian community are a primary consideration which must be taken into account when determining whether a cancellation decision should be revoked. Those expectations are expressed in clause 13.3(1) and they reflect the government’s views. It is not for me as a decision maker to make my own assessment of the expectations of the community. In that sense, those expectations have been ‘deemed’ by clause 13.3(1).[28]
[28] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [67] and [101].
This is a case where the applicant has committed serious crimes in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia. As Stewart J said in FYBR:[29]
It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa.
[29] Ibid [102].
However, the reasoning of the majority in FYBR makes it clear that despite the expectations of the Australian community weighing in favour of non-revocation, the applicant may ultimately succeed and have the cancellation decision revoked.[30]
[30] Ibid [73], [97] and [102].
It is important to give separate consideration to, first, the expectations of the Australian community in so far as it applies to the applicant’s particular circumstances and, second, the ultimate exercise of discretion weighing up the factors for and against revoking the cancellation decision.
With respect to the consideration of the expectations of the Australian community in clause 13.3(1), I give due regard to what the Government has stated in Direction 79 as to its views on what the expectations of the Australian community are.[31] The applicant has failed to act in accordance with the expectation of obeying Australian laws. Further, the Australian community expects that the Australian government should cancel a non-citizen’s visa if a serious crime is committed.[32]
[31] Ibid [99].
[32] Direction 79 at 6.3(2).
However, as I have said, I do not consider that the applicant’s criminal offending, and the harm that would be caused if it were to be repeated, is so serious that any risk of similar conduct in the future is unacceptable.[33] In this regard, I note that the offending took place over a short period of 6 months and that the applicant has otherwise, since being in Australia from October 2014, been well behaved. His 4 year period of abstinence from alcohol, though imposed on his by his incarceration, and his insight into his offending and maturation are factors particular to the applicant that I take into account when determining the weight to be given to the expectations of the Australian community.
[33] Direction 79 at 6.3(4).
I conclude that the expectations of the Australian community weigh in favour of non-revocation of the cancellation decision, but I give it less weight because of those factors particular to the applicant.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction 79, but these are not exhaustive.[34]
[34] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86].
The applicant’s statement of facts, issues and contentions provide that:
· the applicant engages Australia’s international non-refoulement obligations on numerous grounds;
· the applicant would face significant impediments in establishing himself in South Sudan and maintaining even the most basic of living standards;
· the applicant has strong ties to the Australian community which is the only country to which he has meaningful ties.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision, in addition to, and as distinct from, his underlying claimed fear of harm. I am required to give separate and meaningful consideration to each of these representations. I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refinement obligations on the basis that ‘a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then.’[35]
[35] Ali v Minister for Home Affairs [2020] FCAFC 109 [101] and FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 [45].
I will consider separately the risk of harm if returned to South Sudan, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm
The applicant has made numerous representations concerning risk of harm in South Sudan.
The applicant raised his fears of being killed or tortured if he is returned to South Sudan.[36] The applicant’s father said in his written statement that there are many groups fighting each other and that the applicant would get caught up in the violence or conscripted to fight in the army. Dr Zimmerman said that the risk of harm is more severe because the applicant has no known family in South Sudan and because his PTSD would likely destabilise if he were exposed to traumatic events.[37]
[36] See Personal Circumstances Form dated 17 August 2017 G24 p 163.
[37] Exhibit 3, Psychiatric Report by Dr Nina Zimmerman at [94] – [95].
Country information in Annexure A to the applicant’s statement of facts, issues and contentions refers to the 2018 UN Human Rights Council report and details of violations of human rights and international humanitarian law including deliberate targeting of the civilian population based on their perceived ethnic and political affiliation, with specific examples given of violence to Kakwa men who were shot at by Government soldiers.[38]
[38] Applicant’s statement of facts, issues and contention dated 5 October 2020 - Annexure A, pp 5 and 6.
Despite a peace deal, the report of the UNHCR on the position on returnees to South Sudan dated April 2019[39] says that conflict remains, egregious human rights violations continue to be perpetrated and sustainable conditions are not in place for the safe and dignified return of refugees in South Sudan. There are reports in March 2020 from the UN High Commissioner for Human Rights about the escalation of intercommunal violence and mass killings. The New York Times reported on 11 August 2020 that 81 people were killed in clashes between civilians and security forces.
[39] UNHCR, UNHCR Position on returns to South Sudan-Update II (April 2019) [2].
The overall security, rule of law and human rights situation remains highly volatile. It stands in the way of safe and dignified return for any person originating from South Sudan. I find that the applicant would face the prospect of serious harm given his particular profile as a person of Kakwa ethnicity and a western returnee and that there is a general risk of harm and violence associated with the civil war and the instability in the country. The risk of harm would be exacerbated because he is a person with a mental illness.
International non-refoulement obligations
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.[40]
[40] Direction 79 at 14.1(1)
In Ali v Minister for Home Affairs [2020] FCAFC 109 the Full Court said with respect to Australia’s non-refoulement obligations:
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
(c)In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).
(d)Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).
(e)The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).
[25] In general terms, the Full Court in Ibrahim held that Australia’s international non-refoulement obligations extend to obligations under treaties other than the Refugee Convention and that the scope of protection inherent in the s 36(2)(a) criteria is narrower than that afforded by the Refugee Convention itself.
As stated above, the applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.
The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was ‘another reason’ why the original decision should be revoked.[41] It is essential to ascertain the nature and scope of the grounds advanced in the representations to the delegate of the Minister in response to the invitation given under s 501CA(3)(b)[42] and to the Tribunal on this review. I am required to properly consider those grounds and the claims being made and the factual material being relied upon by the applicant.[43]
[41] Ali v Minister for Immigration and Border Protection [2018] FCA 650 [28].
[42] Ali v Minister for Home Affairs [2020] FCAFC 109 [86].
[43] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 [27].
The applicant submits he is a person in respect of whom Australia owes non-refoulement obligations under various international instruments and customary international law. Those various international law instruments including the Convention Relating to the Status of Refugees (Refugee Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT) give rise to non-refoulement obligations.
The applicant relied upon country information and his representations with respect to the following:
· the security and humanitarian situation in South Sudan generally;
· the targeting of civilians based on ethnicity and imputed political affiliations;
· targeting of returnees;
· forced recruitment of men in South Sudan;
· persons with mental health illnesses;
· harm perpetrated by the South Sudanese government and inability of the South Sudanese authorities to prevent harm.
The applicant contends that he would face harm if returned to South Sudan and that the Tribunal needs to consider Australia’s international non-refoulement obligations. I accept this contention. The applicant’s life would be threatened as a result of his Kakwa ethnicity and his status as a returnee from a western country in the context of the deteriorating security situation and ongoing civil war. I will not repeat the country information detailed above in the applicant’s statement of facts, issues and contentions Annexure A and the matters considered separately under risk of harm, but they are relevant to non-refoulement and I find that the risk of harm found above gives rise to a non-refoulement obligation such that Australia would be in breach of that obligation if the applicant were to be returned to South Sudan.
I now have regard to the legal consequences of a decision to not revoke the cancellation of the applicant’s visa[44] bearing in mind my determination that the applicant is a person in respect of whom non-refoulement obligations are owed. Specifically, the applicant will be liable to be removed from Australia as soon as it is reasonably practicable for that to occur.[45] The applicant is liable to be held in immigration detention until he is removed from Australia. Given the obligation to remove as soon as reasonably practicable, his detention would not be indefinite.[46]
[44] See Minister for Immigration and Border Protection v Le [2016] FCAFC 120 [61].
[45] Migration Act1958 s 198.
[46] See DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576 [26]-[30]; and PRHR v Minister for Immigration and Border Protection [2017] AATA 2782 [158].
The respondent submitted, consistent with paragraph 14.1(2), that the policy of the Australian government is not to remove an unlawful citizen to a place in respect of which non-refoulement obligations are owed. I take into account that if the cancellation decision were not revoked, it is likely that the applicant would remain in detention whilst options were considered in light of Australia’s non-refoulement policy.[47] The applicant has said that he will apply for a protection visa, but I will not speculate about the prospects of the applicant being granted a protection visa except to note that he will remain in detention until determination of any such application. Dr Zimmerman has said, and I accept, that the applicant is at risk of a deterioration of his resilience and adverse mental health outcomes the longer he is held in detention.[48]
[47] See DFTD v Minister for Home Affairs [2020] FCAFC 207 at [23].
[48] Exhibit 3, Psychiatric Report by Dr Nina Zimmerman at [98] – [99].
Given that the legal consequence is that the applicant would be returned to South Sudan, it is my assessment for the reasons set out above that there is a very real risk that the applicant will suffer significant harm if the cancellation decision is not revoked. There is also a risk of harm from the applicant’s ongoing detention. The consideration of non-refoulement obligations and risk of harm weigh heavily in favour of revoking the cancellation.
The consequence of non-compliance with Australia’s treaty obligations does not only impact the applicant but it also impacts negatively upon Australia’s reputation and standing in the global community.[49] I consider that this adds further weight in favour of revoking the cancellation.
[49] See Ali v Minister for Home Affairs [2020] FCAFC 109 [91].
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship including violence and a lack of support in the event that he were to return to South Sudan.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
· how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
· 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 arrived in Australia in 2014 at the age of 16 with his younger sister. He had been separated from his father (and mother) since he was 3 years old. He has never been reunited with his mother, but it is a remarkable story about how he became reunited with his father who brought him and his sister out to Australia in 2014. His father had since re-married and had three children with his new wife. The applicant and his sister were overwhelmed with happiness when they came out to Australia and were re-united with their father and discovered that they had half-siblings. They all lived together in the one house for a while until moving to a nearby home. The applicant has a very close relationship with his father and sister together with the half-siblings whose interests have been considered separately above. The father and sister both spoke of the devastation they would feel if the applicant were removed to South Sudan or not released from immigration detention.
I consider that the strength, duration and nature of the applicant’s ties with his family is a very significant factor in favour of revoking the cancellation decision so that he may return to and continue to enjoy his new life in Australia with his family. I do not consider that this factor is either increased or diminished by how long the applicant has resided in Australia. In other words, the factors in paragraph 14.2(a)(i) and (ii) of Direction 79 are neutral in the circumstances of the applicant arriving in Australia aged 16 and commencing his offending about 2 years later.
Impact on Australian business interests and on victims
No evidence or argument was advanced with respect to any impact on Australian business interests or victims.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
· the applicant’s age and health;
· whether there are substantial language or cultural barriers; and
· any social, medical and/or economic support available to them in that country.
The applicant is physically healthy but does suffer from post-traumatic stress disorder and has a diagnosis of an alcohol dependence disorder currently in remission. He is also at risk of developing depression. He has experienced living in or around South Sudan up until the age of 16 so I do not consider there to be substantial language or cultural barriers.
The security and humanitarian situation in South Sudan is dire and presents a most significant impediment to the applicant if he is returned. The report of the UNHCR on the position on returns to South Sudan dated April 2019[50] says that the food security situation continues to deteriorate due to conflict driven displacement, low crop production, economic crisis, climatic shocks and humanitarian access challenges. It says that sustainable conditions are not in place for the safe and dignified return of refugees to South Sudan. It concludes that the overall security, rule of law and human rights situation remains highly volatile.
[50] UNHCR, UNHCR Position on returns to South Sudan-Update II (April 2019).
Country information from DFAT[51] reports that South Sudan’s population has extremely poor access to healthcare and that only 12% of the population is actively employed.
[51] Department of Foreign Affairs and Trade, DFAT Country Information Report South Sudan (5 October 2016).
There are only two South Sudanese psychiatrists in the country and there are minimal outpatient facilities available and only 12 inpatient beds in Juba. Prisons have a role to play in the institutionalised care of people with mental health issues because of the lack of proper medical facilities. Some patients are detained in chains.
The applicant is particularly at risk because of his mental health for which he would most likely not receive the treatment or support he needs. PTSD is a serious mental health condition and it is clear that the applicant would not be able to access the medical services he needs to treat this serious condition. Without treatment, the consequences would be devasting for the applicant. Dr Zimmerman in her report confirms the lack of mental health care and services in South Sudan and concludes that if returned the applicant would be at high risk of a relapse in his PTSD and suicide. Dr Zimmerman says:
[94] Removal to South Sudan is likely to cause profound emotional distress in a young man who has known only war and violence when he was there and whose family supports are all in Australia.
[95] … Any return to South Sudan will include experiences that act as reminders of original trauma, ongoing life stressors or newly experienced traumatic events and there is a high risk of destabilising his PTSD.
[96] … It is extremely unlikely that [the applicant] will have access to the specialised mental health treatment services he requires in war-torn South Sudan. In this context, he is unlikely to experience remission of his symptoms but, perhaps of greater concern, he is likely to experience a significant worsening of his post-trauma syndrome as a result of adverse life events.
In addition to this mental harm, the applicant would be at risk of physical harm due to the ongoing conflict and being a returnee of Kakwa ethnicity. It is most unlikely in all of these circumstances that he would find or be able to work. He would have no family or other support.
I conclude that the extent of the impediments facing the applicant if returned to South Sudan are extreme and unacceptable. The consequences for the applicant would be devastating. This consideration weighs most heavily in favour of revocation.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community favour non-revocation of the cancellation decision. Whilst the Australian community expects non-citizens to obey the law and their visas to be cancelled if they commit serious crimes, I consider it appropriate that the cancellation decision is revoked because of the presence of significant countervailing factors. Those factors include the international non-refoulement obligations, the strength, nature and duration of ties that the applicant has with Australia, the extent of impediments and risk of harm if the applicant is removed to South Sudan and the best interests of minor children.
Clause 6(4) of Direction 79 refers to a circumstance where the offending is so serious that even other strong countervailing considerations may be insufficient to justify not cancelling the visa. This is not such a circumstance. The applicant’s offending is not so serious as to be decisive when all of the circumstances are considered. The applicant committed multiple assaults and burglaries involving violence but an experienced forensic psychiatrist, Dr Zimmerman, has opined that the risk of further offending is low. This low risk together with the limited period of offending means that less weight can and should be afforded to the protection and expectations of the Australian community. The applicant has the support of his very large family and has satisfactorily addressed his issues relating to alcohol.
In weighing the considerations for and against revocation of the cancellation decision, I give great weight to the real and significant risk of harm that the applicant would face if returned to South Sudan. This harm arises on two fronts. First, because the applicant would be at risk of being persecuted and physically harmed due to being of Kakwa ethnicity and a returnee from a western country and because of general risk of harm associated with the civil war and the general instability in the country. Second, because of the lack of available treatment, and in fact positive discrimination for post-traumatic stress disorder. If returned to South Sudan, he would have no family or other support and he would likely lapse into a state of psychosis assuming he is not killed first. There is also a risk of harm arising from the possibility of his ongoing detention as set out above.
I also give significant weight to the strength, nature and duration of ties that the applicant has with Australia.
I note that primary considerations should generally be given greater weight than other considerations but in the circumstances, including where there is a low risk of reoffending, I consider that the primary considerations of the protection and expectations of the Australian community are outweighed by the other considerations of the international non-refoulement obligations, the strength, nature and duration of ties that the applicant has with Australia and the extent of impediments and risk of harm if the applicant is removed to South Sudan. In addition, there is the best interests of minor children which weighs in favour of revocation.
It follows that I am satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to set aside the decision under review and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 17 August 2018.
116. I certify that the preceding one hundred and fifteen [115] paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
..................[sgnd].............................
Administrative Assistant Legal
Dated: 2 December 2020
Dates of hearing: 9 and 10 November 2020
Applicant’s Representative: Ms V Drago of Counsel, instructed by Refugee and Immigration Legal Centre
Respondent’s Representative: Mr J Kyranis, Sparke Helmore
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