GMTY and Minister for Immigration and Border Protection (Migration)
[2023] AATA 134
•9 January 2023
GMTY and Minister for Immigration and Border Protection (Migration) [2023] AATA 134 (9 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8716
Re:GMTY
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:9 January 2023
Date of written reasons: 13 February 2023
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 17 October 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XA Subclass 866 - Protection visa is revoked.
...................................[SGD].....................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – Migration Act section 501CA(4) – primary considerations – other considerations – whether there is another reason to revoke mandatory cancellation of Applicant’s visa – Ministerial Direction No. 90 – substantial criminal record – nature and seriousness of offending – domestic violence – best interest of minor children – expectations of the Australian community – international non-refoulement obligations – detention with no chronologically fixed endpoint – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties – Decision set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
FYBR and Minister for Home Affairs [2019] FCAFC 185
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
MNLR v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCAFC 35
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
WRITTEN REASONS FOR DECISION
Senior Member Dr Linda Kirk
13 February 2023
GMTY (‘the Applicant’) is a 38 year-old citizen of Zimbabwe,0F[1] who first arrived in Australia on 5 July 2009.1F[2] He was granted a Class XA Subclass 866 - Protection visa on 31 October 2016 (‘the protection visa’).2F[3]
[1] Exhibit R1, G2, 7.
[2] Ibid, G4, 296.
[3] Ibid, G2, 214.
On 3 April 2013, the Applicant was convicted in the Local Court of New South Wales at Goulburn for two counts of Drive with high range PCA and with other related matters also taken into account. He was sentenced to an aggregate of 15 months imprisonment with a non-parole period of seven months, and disqualified from driving for five years.3F[4] On 27 May 2013, the District Court of New South Wales at Goulburn dismissed the Applicant’s appeal on the severity of the sentences, leaving the original sentences undisturbed.4F[5]
[4] Ibid, G2, 35-42.
[5] Ibid.
On 7 December 2020, the Applicant’s visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied that the Applicant did not pass the character test in subsection 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’. The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter.5F[6] At the time, the Applicant was serving a sentence of full-time imprisonment at the Metropolitan Special Programs Centre in New South Wales for an offence against a law in Australia.
[6] Ibid, G2, 181-188.
On 18 December 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.6F[7]
[7] Ibid, G2, 81-84.
On 17 October 2022, a delegate of the Respondent decided, under subsection 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).7F[8]
[8] Ibid, G2, 10.
On 22 October 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.8F[9]
[9] Ibid, G1, 1-6.
The matter was heard by the Tribunal on 4 January 2023. The Applicant attended the hearing in person, gave oral evidence and was cross-examined.
The material before the Tribunal consists of:
- Section 501 G-Documents (G1-G17, pages 1-336) filed 2 November 2022 – Exhibit R1
- Supplementary G Documents (SG1- SG26, pages 1-278) filed 9 November 2022 – Exhibit R2
- Applicant’s email dated 29 December 2022 – Exhibit A1
The Tribunal has reviewed the evidence before it and refers to relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.9F[10]
[10] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.10F[11]
[11] Direction 90, [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.11F[12] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as [Kenny and Mortimer JJ] stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.12F[13]
[12] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[13] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in sub-s 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,13F[14] the Full Court of the Federal Court of Australia made the following observations in relation to sub-s 501CA(4):
‘there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...’14F[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Childhood and family members
The Applicant was born and raised in Zimbabwe by his mother and extended family. He had a close relationship with his mother and sister. His mother passed away suddenly at the age of 49 years in 2005. His sister, who was approximately ten years older than him, died in a car accident in 2013. He has no knowledge of his father. He was advised of his father’s death when he was approximately 16 years of age.15F[16]
[16] Exhibit R1, G2, 123.
The Applicant’s childhood was ‘not the best’. His mother was required to work in the family businesses (butchery and supermarket) and would leave at six in the mornings and return at nine in the evenings; seven days of the week. The Applicant was cared for by extended family, although he felt that his cousins received preferential treatment. He missed his mother greatly, and would at times abscond from home to spend the day with her whilst she worked.16F[17]
[17] Ibid, G2, 123.
The death of the Applicant’s mother precipitated the onset of significant family conflict regarding the distribution of family assets. The Applicant’s uncles laid claim to inheritances which were by right, his. His family turned to violence to intimidate him, and he sustained injuries perpetrated by family members including being stabbed, and having his leg and teeth broken.17F[18] He ran away from home and went and lived with friends. He then moved around the country until he was able to obtain a passport and leave.18F[19]
[18] Ibid, G2, 124.
[19] Transcript of proceedings, 4 January 2023, 11.
The Applicant’s sister immigrated to Australia in 2001 and she encouraged him to join her. He arrived in Australia in 2009 and was granted a protection visa in 2016 on account of the violence perpetrated by his family and his ongoing fear that his family would murder him if he were to return to Zimbabwe.19F[20]
[20] Exhibit R1, G2, 124.
The last contact the Applicant had with his family in Zimbabwe was following the death of his sister in 2013. He and his sister had shared a close relationship and he helped her care for her son. His sister had separated from her husband, but as divorce is poorly considered in Zimbabwe, had not disclosed to the family that they had separated. After her death, the Applicant followed his sister’s wishes to prepare for her burial in Australia. Family intervention resulted in the repatriation and burial of his sister’s body in Zimbabwe.20F[21]
[21] Ibid.
The Applicant’s relationship with his brother-in-law is poor and he has had no contact with his nephew since his sister’s death in 2013. Prior to this, he shared a close and loving relationship with his nephew, who is now approximately 15 years of age.
Education and employment
The Applicant attended school in Zimbabwe and describes himself as a ‘bright student’ who largely enjoyed school. He was never suspended or expelled and reported no social difficulties.21F[22]
[22] Ibid, G2, 124.
After completing his studies, the Applicant completed a Diploma in Marketing at the London Chamber of Commerce and Industry.22F[23] Just at the completion of his studies, his mother passed away and the difficulties with his family began, which hindered his potential to work.23F[24]
[23] Transcript of proceedings, 4 January 2023, 10.
[24] Exhibit R1, G2, 124.
After arriving in Australia in 2009 at the age of 24 years, the Applicant completed a Diploma in Accounting. He had wished to then complete an advanced Diploma, however his sister had separated from her husband and became a single mother, so he chose to work rather than study so as to financially support her and his nephew.24F[25]
[25] Ibid, G2, 124.
The Applicant has been variously employed as a labourer in a construction business, as a painter, a cleaner, and as a nurse’s assistant in aged care.25F[26]
[26] Ibid, G2, 104.
Alcohol abuse
The Applicant’s use of alcohol has been ‘chronically problematic’ since his early teen years. He reported that in Zimbabwe, ‘it is considered normal to drink at work, as well as all day, every day.’26F[27] By the age of 13 to14 years, the Applicant was drinking to intoxication daily. His use of alcohol ‘helped him to feel more confident, to feel happy and to dull his concerns or worries.’ His mother was aware of his drinking however she was not especially concerned as he was managing to maintain his academic achievements. After his mother died, alcohol helped the Applicant ‘to numb the chronic feelings of missing his mother.’27F[28]
[27] Ibid, G2, 126.
[28] Ibid, G2, 127.
The Applicant’s pattern of drinking to intoxication did not change until his incarceration in 2013 and subsequent detention, resulting in a period of almost two and a half years during which he remained abstinent. This time also included about six months in the community where he chose not to drink. However, as his levels of stress rose, so did his consumption of alcohol. In 2019, the Applicant became very unwell and was vomiting blood. He sought help from a social worker who helped him access immediate admission to an inpatient alcohol detoxification unit where he remained for two weeks. Following this, the Applicant attended twice weekly Alcoholics Anonymous meetings for three months. The COVID-19 pandemic led to the cancellation of face-to-face support services, and eventually the Applicant relapsed into alcohol use.28F[29]
[29] Ibid, G2, 127.
Former partner and son
The Applicant met his former partner JT in 2018. Their son, DTNT was born in 2021. In the third month of JT’s pregnancy, the Applicant was jailed for driving offences. She continued to support him and would bring his son to visit him in gaol. JT moved away from Sydney to be closer to her family, however she relocated back to Sydney in anticipation of his release from gaol so that the family could be reunited.29F[30]
[30] Ibid, G2, 125.
Following his release from gaol, the Applicant was taken to immigration detention. For several weeks he had limited telephone access and was unable to communicate regularly with JT. The Applicant had hoped he would be able to salvage the relationship with JT, however JT ceased contact with him in January 2022 and continues to refuse his calls.30F[31] He is unsure of the whereabouts of JT and his son, but he believes they are either in Queensland with JT’s father or her sister’s house in Melbourne.31F[32]
Criminal history in Australia
The Applicant’s National Police Check dated 14 April 2022 records his criminal convictions in Australia.32F[33]
[31] Ibid; Transcript of proceedings, 4 January 2023, 21.
[32] Transcript of proceedings, 4 January 2023, 19.
[33] Exhibit R1, G2, 34-51.
Date Event 15 December
2010
At the Downing Centre Local Court, the Applicant was convicted for the following offences:
· common assault, pursuant to Division 9 of the Crimes Act 1900 (NSW) (the Crimes Act);
· destroying or damaging property, pursuant to Division 2 of the Crimes Act.
The Applicant was discharged under a conditional release order for 12 months, pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999.
14 December
2011
At the Griffith Local Court, inter alia, the Applicant was convicted for the following offences:
· 3 x driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act 2013 (NSW) (the Road Transport Act) (The maximum penalty for this offence is 12 months’ imprisonment).
The Applicant was sentenced, in aggregate, to 12 months’ imprisonment, with a non-parole period of 4 months.
8 March 2012
At the Griffith District Court, on appeal, the Applicant was convicted for the following offences:
· 3 x driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act (The maximum penalty for this offence is 12 months’ imprisonment);
The Applicant was sentenced, in aggregate, to 7 months’ imprisonment, with a non-parole period of 2 months.
3 April 2013
At the Goulburn Local Court, the Applicant was convicted for the following offences, inter alia:
· 2 x driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act (The maximum penalty for this offence is 12 months’ imprisonment);
· driving a motor vehicle without being licensed for that purpose, pursuant to section 53 of the Road Transport Act. (The maximum penalty for this offence is 20 penalty units).
The Applicant was sentenced, in aggregate, to 15 months’ imprisonment, with a non-parole period of 7 months.
27 May 2013
At the Goulburn District Court, on appeal, the Applicant was convicted for the following offences:
· 2 x driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act (The maximum penalty for this offence is 12 months’ imprisonment);
· driving a motor vehicle without being licensed for that purpose, pursuant to section 53 of the Road Transport Act. (The maximum penalty for this offence is 20 penalty units).
The Applicant was sentenced, in aggregate, to 15 months’ imprisonment, with a non-parole period of 7 months.
10 September
2018
At the Blacktown Local Court, the Applicant was convicted for the following offences:
· negligent, furious or reckless driving, pursuant to section 117 of the Road Transport Act;
· driving a motor vehicle on a road during a period of disqualification from holding or obtaining a driver licence, pursuant to section 54 of the Road Transport Act. (The maximum penalty for this offence is 12 months’ imprisonment).
The Applicant was discharged under a conditional release order for 18 months, pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999.
1 October 2020
At the Bankstown Local Court, the Applicant was convicted for the following offences:
· driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act (The maximum penalty for this offence is 12 months’ imprisonment);
· using an unregistered registrable vehicle on a road, pursuant to section 68 of the Road Transport Act. (The maximum penalty for this offence is 20 penalty units);
· driving a motor vehicle on a road during a period of disqualification from holding or obtaining a driver licence, pursuant to section 54 of the Road Transport Act. (The maximum penalty for this offence is 12 months’ imprisonment).
The Applicant was sentenced, in aggregate, to 12 months’ imprisonment, with a non-parole period of 6 months.
19 November
2020
At the Parramatta District Court, on appeal, the Applicant was convicted for the following offences:
· driving a motor vehicle with high range prescribed concentration of alcohol present in breath or blood, pursuant to section 110(5) of the Road Transport Act. (The maximum penalty for this offence is 12 months’ imprisonment);
· using an unregistered registrable vehicle on a road, pursuant to section 68 of the Road Transport Act. (The maximum penalty for this offence is 20 penalty units);
· driving a motor vehicle on a road during a period of disqualification from holding or obtaining a driver licence, pursuant to section 54 of the Road Transport Act. (The maximum penalty for this offence is 12 months’ imprisonment).
The Applicant was sentenced, in aggregate, to 10 months’ imprisonment, with a non-parole period of 6 months.
G2, pp35-42 28 February
2022
At the Liverpool Local Court, the Applicant was convicted for the following offences:
· 14 x Money laundering – proceeds of crime, pursuant to section 193B(3) of the Crimes Act. (The maximum penalty for this offence is 10 years’ imprisonment);
· 1 x Participation in criminal groups, pursuant to section 93T of the Crimes Act. (The maximum penalty for this offence is 5 years’ imprisonment).
The Applicant was sentenced, in aggregate, to 26 months’ imprisonment, with a non-parole period of 15 months.
G2, pp35-42 9 July 2020 The Bankstown Local Court made an Apprehended Domestic Violence Order (ADVO) against the
Applicant (in relation to the mother of his child, JT), pursuant to section 16 of the Crimes (Domestic and Personal Violence) Act 2007. (The ADVO expired on 9 July 2022.)
G2, pp150-152 Common assault (DV) – December 2010
On 15 December 2010, the Applicant was convicted in the Downing Centre Local Court of New South Wales of Common assault (DV) and Destroying or damaging property for which he was placed on a section 9 good behaviour bond for 12 months.
The Applicant’s evidence is that this offending involved him becoming embroiled in an argument with a former girlfriend, LH, during which he broke a vase. He followed her onto the street and grabbed her by the wrist, which was witnessed by a bystander, who called the police. When the police arrived, LH told them she did not seek to press charges, but the police nevertheless charged him, and he was convicted of the offences. The Applicant is apologetic and realises he should not have pursued LH.33F[34] He told the Tribunal that he has never assaulted a woman.34F[35]
[34] Exhibit R2, SG2, 115-119.
[35] Transcript of proceedings, 4 January 2023, 6.
Apprehended Domestic Violence Order – July 2020
A final ADVO was granted on 9 July 2020 protecting JT until 8 July 2022. The ADVO was applied for by the police due to an incident between the Applicant and JT on 1 May 2020. The Applicant was charged with Common assault, however the charge was subsequently dropped.35F[36]
[36] Ibid, 26.
In his statement dated 20 December 2021, the Applicant provided the following account of the circumstances that led to the ADVO:36F[37]
‘I would like to provide some context to the incident between [JT] and I that led to the ADVO.
On that evening, [JT] and I were at our apartment in Bankstown. We began arguing about her ex-boyfriend, who was calling her. This led to an argument which became heated, and we were both upset and ended up sleeping in different rooms that night. The next morning we continued arguing and [JT] left and she later told me she went to her mother’s home. I left too, and when I returned there was a note waiting for me telling me to go to the local police station. When I got there, I was told by police officers that JT claimed I had kicked and smashed things in our apartment the night before, and that I had pulled her into the apartment and locked her in the bedroom. Our argument was heated that night but I never did any of those things. I was charged with assault and the police applied for an ADVO. The ADVO conditions meant that [JT] and I couldn’t live together anymore. I went and lived with some friends for a while. The ADVO conditions were amended so that JT and I could live together again. The assault charges were dropped.
I felt terrible about the whole incident, and very sorry that [JT] and I argued that night.
After this incident, [JT] and I continued our relationship. [JT] found out she was pregnant soon after this incident, and we became engaged. [JT] wrote a letter of support for my visa in January 2021. Recently our relationship has broken down due to a range of factors including my being detained in immigration detention. I hope to be able to work things out with [JT] in the future.’
[37] Exhibit R1, G2, 117, [3]-[6].
Driving offences
The Applicant was first convicted of driving offences in December 2011. In his statutory declaration dated 24 November 2014, the Applicant explained the circumstances surrounding these offences:37F[38]
‘At the time I was working as an assistant nurse in Bundanoon. My sister and her son were going on holidays to the UK and she decided to leave her car at my place because the cost of leaving a car at the airport was too high.
While I understand that it is no excuse this was during a period where my relationship with my partner had broken down and I had also just lost my job. I was drinking and acted in a stupid way.’
[38] Exhibit R2, SG2, 115-119.
On 3 April 2013, the Applicant pleaded guilty and was convicted of three driving offences. The sentencing remarks of the Magistrate record that indicate the Applicant was pulled over by police after they observed the way he was driving. The Applicant registered a blood alcohol reading of 0.237, four and a half times the legal limit. His Honour remarked that the Applicant had two previous terms of imprisonment that had both been reduced on appeal but were still considered serious and that he persisted in offending. His Honour remarked that, while it was not the worst instance of such offending he had seen, it was certainly a ‘very serious matter’.38F[39]
[39] Exhibit R1, G2, 69.
In his statutory declaration dated 24 November 2014, the Applicant explained the circumstances surrounding these offences:39F[40]
‘In March 2013 my sister was killed in a car accident. She was my only remaining family member and I was truly devastated. I was also under a significant amount of stress because I could not afford the costs that were involve including the possible cost of sending her body back to Zimbabwe.
On the night of this offence I was at work and waited until 10.30pm, which was the deadline for being called for a night shift, and began having a few beers. I drank more than I should have because I was distraught about my sister and worried about the costs of the funeral. I went to bed and was woken by a friend who said he would pay me if I agreed to drive him to Sydney.
My only thought at that time was making money to pay for the funeral. It was a foolish decision that was not helped by being intoxicated.’
[40] Exhibit R2, SG2, 115-119.
On 10 September 2018, the Applicant was convicted of two driving offences. The Applicant’s evidence is that at the time of the offending, he was feeling unwell and had borrowed a friend’s car to drive himself to the hospital, but he had a minor accident with another vehicle on the way there. He regrets his actions and realises in hindsight that he should have called an ambulance or taken a taxi to the hospital.40F[41]
[41] Exhibit R1, G2, 118.
On 1 October 2020, the Applicant was convicted of four driving offences. The Applicant’s evidence is that the offending happened on the evening of his birthday. He had ‘a few more than necessary drinks to celebrate’ but as he was disqualified from driving, his car was unregistered. After arriving home, his landlord informed him that he had been evicted and he managed to negotiate the return of his personal belongings. The Applicant was unable to call upon his friend for assistance as he had been drinking with him earlier, and the local hotels/motels were closed due to the COVID-19 pandemic over the long weekend. The Applicant needed to remove his car from the premises, so he drove about 100 metres to a nearby public car park to sleep in his car overnight, which he now regrets.41F[42]
[42] Ibid, G2, 18.
Proceeds of crime offences – February 2022
On 28 February 2022, the Applicant was convicted of proceeds of crime offences and an offence related to his participation in a criminal group. The Court transcript records that there were several persons involved in these offences.42F[43] One count (the attempt matter) involved a sum of $1,300,000 and another a sum of $381,000, while the other offences related to amounts of up to $50,000. The Applicant’s evidence is that at the time of the offending, he was unemployed and thus in a vulnerable position. He was approached by a Nigerian man in a Sydney pub who offered him $2,000 if he could use the Applicant’s bank account to transfer funds from overseas. The Applicant did not know that these monies had been illegally obtained at the time. He is sorry for his involvement in the criminal activity.43F[44]
[43] Ibid, G2, 19.
[44] Ibid, G2, 119.
Remorse and responsibility for offending
In his statement dated 20 December 2021, the Applicant wrote:44F[45]
‘I am deeply remorseful for my behaviour and take full responsibility for my actions.
I am aware this is the second time I have had to fight for my visa because I have committed crimes and don’t meet the character test.
While I am aware it is no excuse, I believe my criminal behaviour is closely linked to my alcoholism. This is why I am absolutely committed to staying sober and abiding by the conditions the court has set for me.’
[45] Ibid, G2, 119-120.
Rehabilitation
The Applicant’s evidence is that he has been sober since July 2020. He provided a Certificate of Completion of Drug and Alcohol Abuse 101 course dated 15 November 2021.45F[46] He is committed to seeking therapy to address his addiction and has been referred to Drug and Alcohol Multicultural Education Centre (DAMEC) for addiction related therapy and counselling.
[46] Ibid, G2, 149.
In his statement dated 20 December 2021, the Applicant wrote:46F[47]
‘In 2019, I actively pursued rehab at a detox program called Corella. I completed the program. I stayed sober for several months. I relapsed due to stress in my life. I am aware that I use alcohol to deal with my problems. I am committed to changing this.
I have taken positive steps to address my drinking problem. Firstly, I have been sober for about 18 months. I recently completed a Drug and Alcohol Abuse course in Immigration Detention. I received a certificate of course completion.
I am committed to undergoing regular treatment for my alcohol addiction, as well as my mental health issues. I have been referred for therapy to address my alcohol addiction and I hope to be able to begin therapy while in detention. I am also committed to returning to AA meetings regularly.
In addition to this, I am staying healthy in my body by working out. This is also helping me stay sober.’
[47] Ibid, G2, 120, [35]-[38].
Physical health
The Applicant has been diagnosed with a genetic Hepatitis B condition that is chronic and untreatable. Currently he is healthy and has no symptoms, but remains anxious that this condition may worsen at any time.47F[48] If his condition worsens, he does not believe he would be able to access medical treatment in Zimbabwe unless he had a lot of money, and the country’s health system is ‘very broken and corrupt.’ .48F[49]
[48] Ibid, G2, 126, [19].
[49] Ibid, G2, 120, [30]-[31].
The Applicant told the Tribunal that he had a cancerous tumour removed from his throat approximately six months ago.49F[50]
[50] Transcript of proceedings, 4 January 2023, 24.
Incidents in immigration detention
A Departmental client incident report lists six incidents involving the Applicant in immigration detention between 30 May 2022 and 2 July 2022.50F[51] These incidents included the discovery of contraband in the form of a small quantity of ‘green vegetable matter’ being found in the Applicant’s possession, smoking/drug paraphernalia and home brew mixture being located during a search undertaken in his shared dormitory, and suspected cigarette smoke triggering a fire alarm in his shared dormitory. Additionally, the Applicant was involved in two physical altercations with a detainee with whom he shared a room that resulted in the other detainee suffering a minor laceration to his nostril and an injured toe.51F[52]
[51] Exhibit R1, G2, 224-231.
[52] Ibid, G2, 228.
In his statement dated 20 December 2021, the Applicant detailed a number of incidences of violence he experienced in immigration detention in approximately 2014, including being stabbed on two separate occasions, being assaulted by several detainees, and having all his belongings stolen. He required stitches after one of the stabbing incidents. The Applicant claims that the people who committed these violent offences against him have friends in immigration detention, and he is afraid that they will find out he is there and harass or hurt him again. He is afraid for his safety and his life.52F[53]
[53] Ibid, G2, 121.
Relationship with son, DTNT
In his statement dated 20 December 2021, the Applicant described his relationship with DTNT as follows:53F[54]
‘I am so excited and proud to be a father. Being away from my son has been incredibly difficult for me. I have every intention of being a strong presence in his life, and I don’t believe this will be possible if I don’t get my visa back.
I was able to see [DTNT] while I was in prison, however visitations stopped when I was transferred to Immigration Detention because of Covid restrictions, and because [JT] moved back home to her family in Northern NSW. Being apart from my son has been really hard for me.
[DTNT] shouldn’t grow up without a father. I grew up without a father and I never want my son to experience that.
…
I believe it is very important for [DTNT] to have family around him that look like him, so that he doesn’t feel different, as well as grows up with an understanding of his heritage and culture. I want to teach [DTNT] about his Zimbabwean background, history and culture, and teach him my native language, Ndebele. This is not something I will be able to do unless I get my visa back. Without me around, [DTNT] will be unable to understand his cultural roots.
[DTNT] will never get to know any of his Zimbabwean family, because of their hostility towards me. I am all he has from his Zimbabwean family roots.
Because [JT] and my relationship has broken down, I have tried to get help and support around gaining access to my son. I have contacted Relationships Australia to do this. It is so important to me to show [DTNT] that I love him and want to be a part of his life every single day. I am doing everything I can with the limited resources I have in immigration detention, to get access to [DTNT].’
[54] Ibid, G2, 118, [13].
Risk of re-offending
In his statement dated 20 December 2021, the Applicant outlined the reasons why he would not re-offend:54F[55]
‘Things are different now than before. I have many things in my life that will prevent me from relapsing into drinking alcohol, or getting into trouble again. I have a beautiful son and I know I need to stay sober as well as out of trouble if I am going to be allowed to be a part of his life. I know that to see [DTNT] I will have to get tested because of my drinking history. This is something that encourages and motivates me to stay sober.’
[55] Ibid, G2, 120, [29].
Psychological assessment
Ms Delphine Bostock, Forensic Psychologist, examined the Applicant via telephone on 13 December 2021 and provided a report dated 17 December 2021.55F[56]
[56] Ibid, G2, 122-134.
In her report, Ms Bostock noted that the Applicant’s mental health had not previously been assessed and therefore he had not received any diagnosis. The Applicant stated that upon his release from detention in November 2016, he attended approximately four or five weekly sessions with a psychologist through his Job Network Provider during 2017.56F[57] The psychologist diagnosed him with severe anxiety,57F[58] and suggested that he used alcohol to self-medicate symptoms of anxiety and depression.58F[59]
[57] Transcript of proceedings, 4 January 2023, 11.
[58] Ibid, 12.
[59] Exhibit R1, G2, 126, [20]-[21].
The Applicant reported to Ms Bostock that whilst he has never attempted suicide, he has experienced suicidal ideation. Whilst he had no plan or specific intent, he felt a ‘sense of hopelessness and despondency associated with the thought of deportation.’59F[60]
[60] Ibid, G2, 126, [22].
The Applicant told Ms Bostock that he felt that his mental health is deteriorating in association with time spent in detention. In the past, he felt motivated to attend any programs offered, but he has now disengaged and ‘just want[s] to sleep the day away’.60F[61]
[61] Ibid.
Ms Bostock concluded that the Applicant’s current mental health was ‘poor’. He showed marked symptoms of Depression, Stress, Anxiety and Trauma, which were ‘exacerbated by the possibility of deportation.’ She expressed her concern about ‘the impact of [the Applicant’s] psychological functioning should he be continued to be detained, or to be detained indefinitely; particularly given present suicidal ideation.’61F[62]
[62] Ibid, G2, 133, [57].
In Ms Bostock’s opinion, the Applicant met the DSM-5 criteria for Alcohol Use Disorder in sustained remission.62F[63] This is based on his symptoms such as drinking to ‘blackout’ and strong withdrawal symptoms when he tried to stop or cut down his alcohol intake. She observed that the Applicant ‘appears to have had limited capacity to develop skills other than alcohol use to cope with psychological distress.’63F[64] In her opinion, the limited success of the Applicant’s attempts at detoxification and attendance at AA meetings was because ‘they did not address the motivations underlying [the Applicant’s] use of alcohol.’64F[65]
[63] Ibid, G2, 127, [29]. This is defined as a problematic pattern of alcohol use leading to clinically significant impairment or distress, as manifested by at least two of the diagnostic criteria within a 12-month period.
[64] Ibid, G2, 131, [49].
[65] Ibid, G2, 132, [50].
Ms Bostock reported that the Applicant’s level of insight into his use of alcohol appeared to have improved. He acknowledged that his alcohol use is problematic and his ongoing desire to remain abstinent. He reported that stress is a vulnerability that increases his tendency to use alcohol to cope. Protective factors included being busy and having a routine. His most important motivator not to drink is to regain contact with his son. He is aware that his use of alcohol would likely affect his capacity to parent and to be able to be a part of his son’s life, and this serves as an important deterrent to drinking. He reported that he has not consumed alcohol since being incarcerated on 6 July 2020, despite having some limited opportunities to do so in the custodial environment.65F[66]
[66] Ibid, G2, 126, [28].
On the basis of the information available to her, Ms Bostock hypothesised that the Applicant ‘experiences symptoms of posttraumatic stress disorder as a result of serious acts of violence perpetrated to him.’ The Applicant self-reported symptoms consistent with Post-Traumatic Stress Disorder (‘PTSD’) ‘including intrusion, avoidance, negative alterations in cognitions and mood and arousal/reactivity associated with the trauma.’66F[67] Ms Bostock administered the Posttraumatic Stress Disorder Checklist for DSM-5, and the Applicant yielded a score that indicated that he currently experiences symptoms of PTSD.
[67] Ibid, G2, 132, [52].
In Ms Bostock’s opinion, if the Applicant maintains his abstinence from alcohol use, his risk of reoffending would also decrease. Other areas of high risk/need she identified included his ‘problematic relationships with family including his former partner as well as a lack of prosocial activities that would reduce his risk of boredom; possibly alleviate some distress and offer distraction from use of alcohol to cope.’67F[68]
[68] Ibid, [55].
Ms Bostock noted that the Applicant has not received intensive, formal psychological treatment for his mental health. In her opinion, ‘without the opportunity to process the traumatic experiences’, the Applicant’s ‘risk of relapsing may be high as alcohol has been his primary source of coping and he does not appear to have developed a comprehensive suite of healthy ways to manage distress.’68F[69]
[69] Ibid, [54].
Ms Bostock assessed the Applicant’s risk of re-offending using the Level of Service/Case Management Inventory (‘LS/CMI’).69F[70] His overall score on the LS/CMI was 15 which placed him in the ‘Medium’ risk of reoffending. She noted that the Applicant’s alcohol dependence correlates with his risk of reoffending.70F[71]
[70] Ibid, 130, [50]. The LS/CMI assessment is a quantitative survey ofoffender attributes and situations that provides information about the level of risk/need across eight domains.
[71] Ibid, G2, 131, [44]-[45].
In Ms Bostock’s opinion, the Applicant’s risk of reoffending ‘rests primarily on the opportunity to address his trauma symptoms and alcohol use disorder in tandem.’ She observed that he ‘does not present as an inherently anti-social person.’ If he were offered professional assistance, his ‘prospects of rehabilitation are considered positive.’ He finds himself in this position ‘because of a lack of professional psychological assistance that addressed his criminogenic needs.’71F[72] She noted that the Applicant ‘appears to have community support; an offer of employment and motivation to be a part of his son’s life.’ These ‘important protective factors … support the possibility of healthy life changes and rehabilitation.’72F[73]
[72] Ibid, G2, 133, [57].
[73] Ibid, G2, 133, [58].
Impediments on return
The Applicant’s evidence is that he cannot return to Zimbabwe because his life is in danger from his family, who see him ‘as a threat to the family inheritance.’73F[74]
[74] Ibid, G2, 119, [19].
Future plans
In his statement dated 20 December 2021, the Applicant wrote that he was previously employed by Jordan Safi in his construction business, Safix Form Construction. His employment with the business only ended because of COVID-19 in early 2020. Mr Safi provided a letter of support for the Applicant,74F[75] and has told him that he would re-hire him when he gets his visa back.75F[76]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[75] Ibid, G2, 165.
[76] Ibid, G2, 119, [21].
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department of Home Affairs and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 14 April 2022 recording his criminal convictions and sentences. It records that on 3 April 2013, the Applicant was convicted in the Local of New South Wales at Goulburn for Drive with high range PCA and sentenced to an aggregate of 15 months imprisonment with a non-parole period of seven months.76F[77] The sentence was confirmed on appeal by the District Court of New South Wales at Goulburn on 27 May 2013.77F[78] The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 7 December 2020 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
[77] Ibid, G2, 50.
[78] Ibid.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
Primary Considerations
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states
(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.
…
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(ii) crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.
(iii) …
(iv) …
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) …
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s criminal offending includes family violence offences, serious traffic offences, multiple counts of recklessly dealing with proceeds of crime, and participation in a criminal group. According to paragraph 8.1.1(1)(a)(i)-(iii) of the Direction, the Applicant’s conviction for Common assault in December 2010 must be viewed very seriously as it was a crime of a violent nature against a woman and an act of family violence. Also relevant is the ADVO made by the Bankstown Local Court on 9 July 2020 against the Applicant in relation to his former partner, JT. Paragraph 8.1.1(1)(a)(iii) requires acts of family violence to be viewed very seriously, regardless of whether there is a conviction for an offence or a sentence imposed.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the aggregate term of 15 months’ imprisonment imposed for the high range PCA offence, and the aggregate 26 months’ term of imprisonment for the proceeds of crime and participation in criminal groups offences are objective indicators of the seriousness of the Applicant’s criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.78F[79]
[79] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant has been convicted of multiple offences, particularly numerous road traffic offences. It further notes the frequency of the Applicant’s offending and the cumulative effect of his repeated offending. The Applicant’s repeated traffic offending demonstrates both his disregard for the law and for the safety and well-being of other road users.
Relevantly to paragraph 8.1.1(1)(g) of the Direction, the Tribunal notes that the Applicant was expressly warned about the consequences of his offending on his visa status on 31 October 2016.79F[80] Despite this warning, the Applicant went on to re-offend on multiple occasions. This reoffending demonstrates the Applicant’s contempt for the second chance he was given to remain in Australia despite his criminal offending, and his indifference to the consequences of his behaviour on his visa status. His disregard for the warnings he received are indicators of the seriousness of his criminal offending.
[80] Exhibit R1, G2, 214.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that the nature of the harm if the Applicant were to reoffend is serious. The Applicant’s criminal offending has included physical violence against a woman. If his previous criminal behaviour were to be repeated, this would pose a significant risk to members of the community, particularly women. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection (Migration) (‘XFKR’),80F[81] the Tribunal observed:81F[82]
‘The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.’
[81] [2017] AATA 2385.
[82] Ibid, [45].
In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. If the Applicant were to re-offend, further resources from the criminal justice system, health system, and the Australian economy more broadly, would be directed to addressing his offending, including further arrests, court proceedings and rehabilitative programs. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has taken into account information and evidence on the risk of him re-offending and evidence of rehabilitation he has achieved.
The Tribunal has had particular regard to the professional assessment of Ms Bostock in relation to the risk of the Applicant re-offending detailed in her report dated 17 December 2021. Ms Bostock concluded that the risk of the Applicant reoffending was ‘medium’. She identified alcohol use as a dynamic high-risk factor, opining that, if the Applicant maintain his abstinence from alcohol use, his risk of reoffending would also decrease.
The evidence before the Tribunal is that the Applicant has abstained from alcohol use of a period of more than two and a half years. In December 2021, Ms Bostock found that the Applicant’s Alcohol Use Disorder was in sustained remission. She further noted that the Applicant’s alcohol dependence correlates with his risk of reoffending. Having regard to Ms Bostock’s opinions, the Tribunal finds that the Applicant’s ongoing and sustained abstinence from alcohol significantly reduces his risk of re-offending. Ms Bostock also identified other areas of high risk, including a lack of prosocial activities that would reduce the Applicant’s risk of boredom and offer distraction from the use of alcohol to cope. The evidence before the Tribunal is that the Applicant has the offer of a job in the construction industry if and when his visa is reinstated. The Tribunal finds that the opportunity to engage in prosocial work activity is a significant protective factor and further reduces the risk of the Applicant re-offending.
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low to moderate. However, in the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Australian Government has ‘serious concerns’ about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, and these concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2(2) provides that this Primary Consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. It is relevant in the Applicant’s circumstances because in December 2010 he was convicted of two family violence offences against his then girlfriend, LH, and he was made subject to an ADVO for the protection of his former partner, JT, in July 2020.
Family violence is referred to in the principle enunciated at paragraph 5.2(5) of the Direction as conduct which ‘is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.’ Family violence is also expressly referred to in Primary Consideration 1 of the Protection of the Australian community as conduct which is viewed very seriously by the Australian Government and the Australian community. It is also expressly referred to in Primary Consideration 4 of the Expectations of the Australian community as conduct of such seriousness that the Australian community would expect the Australian Government to refuse entry or cancel the visas of non-citizens.82F[83]
[83] Direction 90, subparagraph 8.4(2)(a).
The Tribunal has consistently found that family violence is abhorrent. It has been described as ‘a corrosive blight on the Australian community’,83F[84] ‘plainly abhorrent’84F[85] and an offence which ‘warps and destroys the healthy bonds that should exist between partners and within families.’85F[86] As the Tribunal observed in XFKR, family violence ‘normalises … socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.’86F[87]
[84] Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1955 at [106].
[85] Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2107 at [56].
[86] ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633 at [136].
[87] Ibid, [45].
Paragraph 4(1) of the Direction defines ‘family violence’ as ‘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’. It contains a non-exhaustive list of examples of behaviour that may constitute family violence:87F[88]
[88] Direction 90, paragraph 4(1).
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Direction does not define a ‘family member’. However, section 4(1AB) of the Family Law Act 1975 (Cth), provides that a person is a member of the family of another person if, relevantly:
(d) the first person is or has been married to, or in a de facto relationship with, the second person; or …
The Applicant’s convictions for Common Assault and Destroying or damaging property were perpetrated against his then girlfriend, LH. The ADVO issued against the Applicant was for the protection of JT, the mother of DTNT. These are recognised by the Direction as acts of ‘family violence’ against a ‘family member’.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effective of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement of other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Having regard to the factors in paragraphs 8.2(3)(a) and 8.2(3)(b) of the Direction, the Applicant’s convictions in December 2010 are the only family violence offences for which he has been convicted. The Tribunal accepts the Applicant’s evidence that LH did not wish for charges to be laid against him. However, it cannot go behind the finding of guilt made by the Court nor question the conviction that was recorded.
In relation to the factors in paragraph 8.2(3)(c) of the Direction, the evidence before the Tribunal is that the Applicant accepts that he should not have pursued LH, but he denies that his grabbing of her wrists constituted an assault. This indicates that the Applicant has not fully taken responsibility for his actions and the harm, including psychological harm, that family violence can cause to its victims. The Tribunal notes that there is no evidence that the Applicant has engaged in programs or courses with respect to the impact of family violence offending.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that the Applicant’s family violence offences are serious. Accordingly, the Tribunal finds that Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a) the nature and duration of the relationship between the child and the 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);
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;
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;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
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 in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
The relevant minor child is the Applicant’s son DTNT, born in 2021 and aged two years.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has had a limited relationship with his son as he was imprisoned for driving offences when JT was three months pregnant. Although JT would take DTNT to visit the Applicant in gaol, she subsequently moved away from Sydney and contact between the Applicant and his son was thereafter limited to telephone calls. After he was transferred to immigration detention, the Applicant was unable to communicate regularly with JT, and in January 2022 she ceased all communication with him. As a consequence, the Applicant has had no contact with his son for more than a year.
Relevant to the factors in paragraph 8.3(4)(b) of the Direction, it is unclear whether the Applicant will be able to play a role in the upbringing of his son if he returns to the community. There are currently no court orders or access arrangements in place and the Applicant does not know the whereabouts of JT or DTNT. The Applicant’s evidence is that he has sought help and support around gaining access to his son, including contacting Relationships Australia. As DTNT is only two years old there are many years during which the Applicant may be able to contribute to his upbringing if he is able to gain access to his son.
Relevant to paragraph 8.3(4)(c), there is no evidence that the Applicant's prior criminality has had a direct negative impact on DTNT.
In relation to the factors in paragraphs 8.3(4)(e) and 8.3(4)(f) of the Direction, the evidence is that DTNT currently resides with his mother JT. Accordingly, there is another person who already fulfils a parental role in relation to DTNT.
On the basis of the evidence before it, the Tribunal is satisfied that although the Applicant currently has no contact with DTNT, he intends to take the steps necessary for him to gain access to him. It finds that the best interests of DTNT weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)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 to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted 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)…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)…
(f)…
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)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.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction. In FYBR and Minister for Home Affairs (‘FYBR’),88F[89] he majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.89F[90] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.90F[91]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.91F[92] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.92F[93]
[89] [2019] FCAFC 185.
[90] Charlesworth J at [66]; Stewart J at [91].
[91] Charlesworth J at [67]; Stewart J at [104].
[92] Charlesworth J at [76].
[93] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.93F[94] As a normative expression, this consideration indicates the likelihood that community expectation will, in most cases, lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.
[94] Charlesworth J at [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4(1) of the Direction, the Tribunal notes that the Applicant has breached a number of Australian laws and committed serious offences, including family violence offences, which the community would generally expect to result in the cancellation of his visa.
The evidence is that the Applicant arrived in Australia in July 2009, and he worked in a variety of roles for a period of approximately 10 years. Having regard to the factors in principle 5.2(4) of the Direction, the Tribunal finds that the Applicant’s residency in Australia for 13 ½ years, and his contribution to the economy through his work, would likely result in a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Paragraph 8.4(2) of the Direction recognises that the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that a person should not continue to hold a visa. Relevantly, paragraph 8.4(2)(a) identifies acts of family violence as one of the categories of crimes that the Australian community would expect offenders to have their visas cancelled. As noted above, the Applicant was convicted of two family violence offences in 2010.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, the duration of his residency in Australia and his contribution to the Australian economy, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’)94F[95]
‘Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’
[95] [2018] FCA 594, [23].
Paragraph 9.1(3) of the Direction recognises that the existence of a non-refoulement obligation does not preclude non-revocation of a Mandatory Visa Cancellation Decision as it will not necessarily result in removal of an applicant in respect to which the obligation exists. In the Applicant’s circumstances, sections 197C and 198 of the Act would not operate to require him be removed to Zimbabwe in breach of Australia’s international obligations. Section 197C of the Act expressly provides that removal under section 198 is not required or authorised in respect of an unlawful non-citizen to a country in respect of which a protection finding has been made. Accordingly, even if the Mandatory Visa Cancellation Decision is not revoked, it is unlikely that the Applicant would be returned to Zimbabwe in breach of Australia’s international non-refoulement obligations.
As the Applicant cannot be removed to Zimbabwe, he will remain in immigration detention unless and until the Minister exercises his non-compellable power under section 195A of the Act to grant the Applicant a visa, or he exercises his power under section 197AB of the Act to make a residence determination, or the Applicant is removed to a third country, or the Applicant requests voluntary removal, or the protection finding is reversed.
Guidance in relation to the legal consequences of a non-revocation decision where non-refoulement obligations are engaged is provided by the Full Court of the Federal Court decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘WKMZ’).100F[101] This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction. WKMZ referred to the possible outcomes of a decision that a Mandatory Visa Cancellation Decision is not revoked: removal, indefinite detention, and the grant to the non-citizen of a visa.101F[102] As outlined above, the Tribunal finds that there is no realistic prospect that the Applicant would be granted another visa, including a protection visa, in the reasonably foreseeable future.102F[103] The Tribunal must consider the consequences of the Applicant’s removal to Zimbabwe, and the prospect that he may be held in ongoing immigration detention.
[101] [2021] FCAFC 55.
[102] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [97].
[103] See MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35; Ibid, [73].
Alternatives to removal to Zimbabwe
Paragraph 9.1(3) provides that a non-revocation decision need not necessarily result in a non-citizen’s removal from Australia where there are other alternatives available:
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa 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 obligation 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 appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
There is no evidence before the Tribunal that a decision has been made by the Minister to exercise his non-compellable powers to grant the Applicant a visa under section 195A or make a residence determination under section 197AB of the Act. The Respondent acknowledges that if the Mandatory Visa Cancellation Decision is not revoked, the Applicant will be detained for a period with no chronologically fixed endpoint, and this should weigh in favour of revocation.103F[104]
[104] Respondent’s Statement of Facts, Issues and Contentions (‘RSFIC’), [75].
On the basis of the evidence before it, the Tribunal finds that while the powers in sections 195A and 197AB of the Act remain available, the immediate legal effect of non-revocation in the Applicant’s circumstances is him being detained in immigration detention without a fixed chronological endpoint.104F[105]
[105] Respondent’s Supplementary submissions at [9] citing WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [136].
In FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (‘FRVT’) the Tribunal reached the same conclusion in relation to potential exercise of the Minister of his discretionary powers where the applicant’s protection visa was mandatorily cancelled:
‘the Tribunal considers that it is very unlikely that the Minister, having decided not to revoke the mandatory cancellation of the Applicant’s Protection visa, will exercise any non-compellable discretions, including those in sections 48B, 195A or 501J of the Act, in the Applicant’s favour. This is especially so in the case of the Minister’s broad discretion under section 195A of the Act to grant visas to persons in detention’.105F[106]
[106] [2020] AATA 294, [279] and [312].
The approach taken by the Tribunal in FRVT has been applied by the Federal Court in BAL19 v Minister for Home Affairs;106F[107] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;107F[108] and DQM18 v Minister for Home Affairs.108F[109]
[107] [2019] FCA 2189, [42]-[46].
[108] [2021] FCAFC 35, [42], [53], [55] and [73].
[109] [2020] FCAFC 110, [108]-[109].
For the reasons stated above, the Tribunal finds that the consequences of a non-revocation decision are that the Applicant will be held in detention without a ‘chronologically fixed endpoint’.109F[110]
[110] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
Ongoing immigration detention
The COIR Explanatory Memorandum stated as follows in relation to the detention of non-citizens who engage Australia’s non-refoulement obligations but who cannot be removed from Australia:110F[111]
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future.
[111] Ibid.
If the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain in immigration detention whilst the Minister considers whether he can be returned to another country, or whether he will exercise of one of his discretionary powers under the Act. In WKMZ, Kenny and Mortimer JJ observed that consideration of these options may take some time:111F[112]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[112] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [132].
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:112F[113]
It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).
[113] [2021] FCAFC 35, [93]-[94].
In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country which will agree to receive him. During this period, he would be subject to ongoing immigration detention.
Having considered the circumstances referred to above, the Tribunal finds that the most likely consequence of a decision to not revoke the Mandatory Visa Cancellation Decision is the Applicant’s ongoing immigration detention, and that the period of his loss of liberty may be very lengthy and have no chronologically fixed endpoint.
This consequence would be highly detrimental to the Applicant’s psychological health and well-being. In her report, Ms Bostock expressed her concern about ‘the impact of [the Applicant’s] psychological functioning should he be continued to be detained, or to be detained indefinitely; particularly given present suicidal ideation.’113F[114] The Tribunal finds that the consequence of ongoing immigration detention is a factor that weighs very heavily in favour of revoking the Mandatory Visa Cancellation Decision.
[114] Exhibit R1, G2, 133, [57].
While the Tribunal finds that ongoing immigration detention is the most likely consequence of non-revocation of the Mandatory Visa Cancellation Decision, it cannot discount the potential that the Applicant will voluntarily return to Zimbabwe where he will be at risk of harm inconsistently with Australia’s non-refoulement obligations. This consequence would be highly detrimental to the Applicant and weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
In conclusion, the legal and practical consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is the prospect of the Applicant’s ongoing immigration detention with no chronologically fixed endpoint or his removal to Zimbabwe contrary to Australia’s non-refoulement obligations. The Tribunal finds that both these consequences weigh very heavily in favour of revocation.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1) Decision-makers must consider the extent of any impediments that the non-citizen 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:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 38 years and is in poor health, having chronic Hepatitis B, which is incurable and chronic, and recently having had a cancerous tumour removed from his throat. While the Applicant is currently healthy, Hepatitis B is a serious liver infection which affects the liver and can cause liver damage, liver failure, liver cancer and death.
The Applicant claims that if he is removed to Zimbabwe, he would be unable to afford the cost of treatment for his chronic illness, should he require it.114F[115] He referred the Tribunal to country information that supports his submission that he would have considerable difficulties obtaining access to medication due to supply shortages, and that this would very likely adversely affect his health. In its 2019 report in relation to Zimbabwe, the Department of Foreign Affairs and Trade (DFAT) stated the following in relation to the health system and health outcomes in that country:115F[116]
‘Many factors, including long running economic and political crises, coupled with long running HIV/AIDS crisis and other major disease outbreaks… have had a significant impact on the health system and on health outcomes overall. Health facilities have widespread shortages of basic medicines such as painkillers and contraceptives. Zimbabweans seeking healthcare are generally required to bring their own drugs, syringes, bandages, and water, and to pay for their treatment in US dollars. In November 2018, the Zimbabwe Medical Association warned that patients were relapsing and deteriorating while operations were being cancelled due to shortages of medicines…Most of Zimbabwe’s political and economic elite travel to South Africa or other destinations abroad to access private medical care.’
[115] Exhibit R1, G2, 115.
[116] Ibid, G2, 209.
More recently, Zimbabwe’s health care system has been described as ‘struggling’ and “buckling under the pressure” of COVID-19 cases in the country.116F[117] The three drugs used in the treatment of Hepatitis B are all subject to supply problems.117F[118]
[117]Article: wave?gclid=EAIaIQobChMIhMrz9t_p9AIVFZJmAh2B8gnpEAMYASAAEgKMmfD_BwE.
[118]Article: >
Ms Bostock reported that the Applicant currently experiences symptoms consistent with PTSD and recommended that he access professional psychological assistance. He also previously suffered from Alcohol Use Disorder and will require ongoing support to prevent him from relapsing into alcohol abuse. As a citizen of Zimbabwe, the Applicant would have the same access to medical service as other citizens. However, as the country information above indicates, the health system in Zimbabwe is under considerable strain, and it is unlikely the Applicant will be able to obtain the treatment he requires.
Based on the evidence before it, particularly the country information referred to above, the Tribunal finds that if the Applicant returns to Zimbabwe, he will suffer considerable hardship in the form of being unable to access necessary medical treatment and medication and appropriate psychological counselling.
In relation to the factors in paragraph 9.2(1)(b) of the Direction, the evidence before the Tribunal is that the Applicant left Zimbabwe at the age of 24 years. The Applicant is estranged from his family in Zimbabwe, and his mother, father and sister are all deceased. Accordingly, if the Applicant were to return to Zimbabwe he would have no viable support network, would struggle to find accommodation, and would face the prospect of severe hardship. It would likely take some time for the Applicant to find suitable paid employment in Zimbabwe. He has been variously employed as a labourer in a construction business, as a painter, a cleaner, and as a nurse’s assistant in aged care, and he may be able to find employment in one of these fields of work.
Having regard to the evidence before it, and guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds the Applicant will likely face significant hardship if he is required to re-establish himself in Zimbabwe. The Tribunal finds that this consideration weighs very heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 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.
There is no evidence before the Tribunal of the views of the Applicant’s victims and the impact on them of a decision to revoke the Mandatory Visa Cancellation Decision. Accordingly, Tribunal has given no weight to the factors in this paragraph.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(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.
a) 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.
Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that the Applicant’s only family member in Australia is his son, DTNT. In circumstances in which the Applicant is estranged from his family in Zimbabwe and his mother, father and sister are deceased, it is significant that his only family member resides in Australia.
In relation to his other ties, the Applicant has resided in Australia for 13½ years and has made a contribution to the economy through his work in a variety of roles.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Zimbabwe. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his ties to his only surviving close family member in Australia, and his contribution to the Australian economy through his work, the Tribunal finds that this consideration weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it includes family violence offences. The low to moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs against revocation of the Mandatory Visa Cancellation Decision, because although the Applicant’s record of family violence offences is not extensive and he regrets his actions, there is no evidence that he has taken steps to appreciate the significant harm that such offences cause their victims.
Primary Consideration 3 weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s son for him to be permitted to remain in Australia.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the potential for the Applicant to be held in immigration detention for a very lengthy period with no chronologically fixed endpoint, and the extent of impediments he will face if he were to voluntarily return to Zimbabwe, weigh very heavily in favour of revocation. The strength, nature and duration of the Applicant’s family and social ties to Australia also weigh heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 17 October 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XA Subclass 866 - Protection visa is revoked.
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.....................................[SGD]...................................
Associate
13 February 2023
Date(s) of hearing: 4 January 2023 Applicant: In person Solicitors for the Respondent: K. Kim of Clayton Utz
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