GNLS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4418
•4 November 2020
GNLS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4418 (4 November 2020)
Division:GENERAL DIVISION
File Number: 2020/4902
Re:GNLS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:4 November 2020
Place:Perth
The decision of the delegate of the Respondent dated 12 August 2020 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
........[Sgd]...............................................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – decision of delegate of Minister not to revoke mandatory cancellation of visa – whether the Applicant passes the character test – substantial criminal record – drug offences – domestic violence – traffic offences – Applicant does not pass the character test – whether there is another reason why the Cancellation Decision should be revoked – Direction No 79 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – non-refoulement – strength, nature and duration of ties – Applicant arrived in Australia as a fifteen year old – extent of impediments if removed to Myanmar – impact of COVID-19 pandemic – Tribunal satisfied there is another reason why the decision to cancel that Applicant’s visa should be revoked – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 2A
Migration Act 1958 (Cth) – ss 36(2)(a), 36(2)(aa), 198, 499, 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
AXT19 v Minister for Home Affairs [2020] FCAFC 32
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
BDQ19 v Minister of Home Affairs [2019] FCA 1630
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
DQM18 v Minister for Home Affairs [2020] FCAFC 110
EVK18 v Minister for Home Affairs [2020] FCAFC 49
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Omar v Minister for Home Affairs [2019] FCA 279
Pavey and Minister for Home Affairs [2019] AATA 4198
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370
RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Varley and Minister for Home Affairs [2019] AATA 376
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
WSML and Minister for Home Affairs [2019] AATA 41
Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002
SECONDARY MATERIALS
Commonwealth of Australia, Department of Health, National Drug Strategy 2017-2026 (Report, 2017)
Commonwealth of Australia, Department of Prime Minister and Cabinet, Final Report of the National Ice Task Force (Final Report, 2015)
Department of Foreign Affairs and Trade, DFAT Country Information Report: Myanmar (Report, 18 April 2019)
Minister for Immigration and Border Protection, Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014) – paras 6, 8, 11.3, 13.3
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018) – paras 6, 6.1, 6.2, 6.3, 7(1)(b), 8, Part C, 13(1), 13(2), 13.1(1), 13.1(2), 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2(1), 13.1.2(1)(b), 13.3, 13.3(1), 14, 14(1), 14.2(1), 14.3(1), 14.4(1), 14.4(1), 14.5(1)
REASONS FOR DECISION
Member S Burford
4 November 2020
INTRODUCTION
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 12 August 2020 to refuse to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
[1] R2, G15.
The Applicant is a 27-year-old citizen of Myanmar. He has lived in Australia since he was 15 years old. His visa was mandatorily cancelled by a delegate of the Respondent on
24 January 2019 pursuant to s 501(3A) of the Migration Act (the Cancellation Decision)[2] following his conviction on 27 November 2018 in the District Court of Western Australia of possession of prohibited drugs with intent to sell or supply (cannibis) and possession of a prohibited drug with intent to sell or supply (methylamphetamine), for which he was sentenced to a term of imprisonment of 18 months on the cannabis conviction and three years, six months on the methylamphetamine conviction.[3]
[2] R2, G62.
[3] R2, G16.
The Applicant was released on parole on 24 August 2020 and is currently in Yongah Hill Immigration Detention Centre.[4]
[4] R2, G60.
The issues for the Tribunal are whether it is satisfied the Applicant passes the character test and, if not, whether there is another reason why the mandatory cancellation of the visa should be revoked.
The Tribunal has decided that the Reviewable Decision should be set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked.
BACKGROUND FACTS
The Applicant arrived in Australia with his sister on 2 January 2009 on a Global Special Humanitarian (Class XB) (subclass 2020) visa.[5] He was 15 years old at the time and his sister was 18 or 19. His mother had been in Australia since 5 August 2000. She was granted a Protection (subclass 866) visa on 9 January 2007.[6]
[5] R2, G30, page 139; A1.
[6] A1.
The Applicant’s mother, with her now partner, met the Applicant and his sister in Thailand in 2009 and they travelled together to Australia. This was the first time the Applicant had seen his mother in person since she left Myanmar in 2000. He had been living with his paternal grandparents since his mother left but claimed he had little contact with his father since the marriage ended when he was a small child. He testified he does not know his father’s current whereabouts. The Applicant and his immediate family have been living in Australia since he arrived in 2009.
The Applicant has departed Australia on four occasions since he arrived.[7] At least two of those trips, in June 2012 and February 2014, were to Myanmar. Each trip to Myanmar was for around one month. One trip was to Singapore. It was unclear where the remaining trip was to as the Applicant though it was to Brisbane but this is not consistent with Department movement records.[8] On 7 February 2014, just prior to his last overseas trip, the Applicant was granted a Five-Year Resident Return visa. This is the visa which has been cancelled.
[7] R2, G61, page 264.
[8] Ibid.
As noted above, on 27 November 2018 in the District Court of Western Australia the Applicant was convicted of possession of prohibited drugs with intent to sell or supply (cannabis) and possession of prohibited drugs with intent to sell or supply (methylamphetamine), for which he was sentenced to a term of imprisonment of 18 months on the cannabis conviction and three years, six months on the methylamphetamine conviction. The sentences were to be served concurrently.[9] He was also declared a drug trafficker.
[9] R2, G16.
The conviction was the result of a raid by police on the Applicant’s home which was rented in his name and which he shared with several friends. Trafficable quantities of methylamphetamine and cannabis were found on the property during the raid.[10] The Applicant and one of his housemates were charged with a range of offences. The Applicant plead not guilty at trial, maintaining the drugs were not his and that he had not sold drugs. This was a position he maintained until sometime during his incarceration. Before the Tribunal he said he accepted he had committed the offences (though he did not own the drugs) and had assisted in the selling of drugs in exchange for access to drugs for personal use.[11] At trial the sentencing judge found that the Applicant and his flatmate were dealing in methylamphetamine and cannabis and were equally culpable with respect to the offences.[12]
[10] R2, G17, page 67.
[11] A2, pages 7-10.
[12] R2, G17, pages 67 and 70.
The convictions resulting from the police raids on this occasion were not the Applicant’s only offences. He has a number of traffic offences and a conviction for aggravated assault.[13] However, his convictions on 27 November 2018 were the first convictions for which he was sentenced to a term of imprisonment. The Applicant’s offending history and conduct are considered further below.
[13] R2, G16, pages 62-63.
As a result of the conviction, the Applicant’s visa was mandatorily cancelled on
24 January 2019 by a delegate of the Minister under s 501(3A) of the Migration Act. The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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.[14]
[14] Migration Act 1958 (Cth) ss 501(6)(a), 501(7)(c) (Migration Act).
The Applicant was notified of the Cancellation Decision by letter dated 24 January 2019 delivered to the Applicant by hand in Acacia Prison.[15] The Applicant signed for receipt of the documents on 30 January 2019.[16] The notice advised that he could make representations to seek revocation of that decision. On 21 February 2019, the Applicant requested revocation of the Cancellation Decision and made representations regarding why the decision should be revoked.[17]
[15] R2, G62; A1, [11].
[16] R2, G4.
[17] R2, G21
On 12 August 2020 the Delegate decided not to revoke the cancellation of the Applicant’s visa. This was the Reviewable Decision. The Applicant was notified of the Reviewable Decision via email to his representative on the same day.[18]
[18] R2, G15.
On 14 August 2020, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation of his visa.[19]
[19] R2, G2.
The application for review made to this Tribunal was made in accordance with ss 500(1)(ba) and 500(6B) of the Migration Act. The Tribunal is satisfied that it has jurisdiction to review the decision.
LEGISLATIVE FRAMEWORK
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, the exercise of a discretion about what decision should be made.
The character test is set out in s 501(6) of the Migration Act, which essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); or
…
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
…
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel a person’s visa of certain incarcerated persons who do not pass the character test, including because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. The person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision. If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied the person passes the character test or that there is another reason why the original decision should be revoked. The revocation decision under s 501CA(4)(b)(i) calls on the decision-maker to first decide whether the person passes the character test and, only if satisfied the person does not, proceed to consider under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation should be revoked.[20]
[20] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
The Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers.[21] Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79) under s 499 of the Migration Act, for people or bodies exercising powers under ss 501 and 501CA. Direction No 79 commenced operation on 28 February 2019.[22]
[21] Migration Act s 499.
[22] Direction No 79 is the direction currently in force.
The purpose of Direction No 79 is to guide decision-makers exercising powers under the Migration Act. It creates a framework within which the discretion vested in the decision-maker is lawfully to be exercised. It identifies certain principles which provide a framework within which decision-makers should approach their task.[23] It prescribes relevant considerations which must be taken into account but provides guidance only as to the manner in which they are to be balanced. It equips decision-makers with a width of discretion that enables them to take into account the different circumstances that may arise and to reach a result that is fair and rational in all the circumstances, while ensuring that account is had to particular considerations.[24]
[23] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, 585 [80]–[81].
[24] Ibid 586 [83]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 79.
In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 79.
Direction No 79
Paragraph 6.1 of Direction No 79 sets out the ‘Objectives’ of the Migration Act. Paragraph 6.2 of Direction No 79 provides ‘General Guidance’ as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out ‘Principles’ which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the Tribunal must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case.[25] Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
[25] Direction No 79, para 13(1).
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 79 can be found in paragraph 8 of Direction No 79, ‘Taking the relevant considerations into account’, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING
The hearing was held on 21 and 22 October 2020 in Perth. The Applicant was represented by Ms Alice Graziotti of Estrin Saul Lawyers. The Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers. Both representatives appeared in person on the first day of the hearing. Mr Graziotti appeared by telephone on the second day of the hearing at her request. The Applicant appeared via video link from Yongah Hill Immigration Detention Centre.
The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing in part by means of electronic communication. The Tribunal determined it was reasonable to hold a hearing in part by electronic communications, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the necessity for the Tribunal to make a decision on the application within the statutory timeframe. The Tribunal took steps throughout the hearing process to ensure the proceedings could be conducted in a manner that was fair to both parties, consistent with the Tribunal’s obligations and objectives under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[26] The parties did not raise any concerns regarding the conduct of the hearing by electronic means. The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.
[26] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
At the hearing, the Applicant made submissions, gave evidence and was
cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:
·the Applicant’s mother;
·the Applicant’s sister;
·the Applicant’s stepfather;
·the Applicant’s friend, Mr V;[27] and
·Dr Philip Watts, clinical psychologist.
[27] A pseudonym.
The first day of the hearing was conducted with the assistance of an interpreter accredited in the English and Myanmar (Burmese) languages. The Tribunal notes the Applicant indicated he wished to engage with the Tribunal in English and did not require the assistance of the interpreter. The Tribunal agreed but stressed to the Applicant he should feel free to use the services of the interpreter if he was unsure about any aspect of the proceedings or felt he would be better understood in English. The Applicant did not request or require the interpreter’s assistance during the hearing. However, several witnesses used the interpreter during their evidence.
As the hearing was not completed on the first day, a second day of hearing was required. As none of the witnesses appearing on the second day required an interpreter, the second day of the hearing proceeded without an interpreter present. The Tribunal was satisfied the proceedings were able to be conducted fairly without the interpreter on that day and that the Applicant was able to participate fully in the proceedings without an interpreter.
The Applicant’s mother and sister gave evidence in person on the first day of the hearing and testified with the assistance of the interpreter who was present throughout the first day of the hearing. Dr Watts gave evidence via telephone on the first day of the hearing. Mr V and the Applicant’s stepfather gave evidence on the second day of the hearing. Neither required the assistance from an interpreter. In this regard the Tribunal notes the Applicant’s stepfather is himself an accredited interpreter.[28] The Applicant’s stepfather gave evidence in person. Mr V gave evidence via telephone.
[28] A2, page 39.
The Applicant provided statements, reports or letters from additional witnesses to the Tribunal. The Applicant indicated a number of these witnesses were available to testify at the hearing. The Respondent agreed to this material being admitted into evidence at the hearing but did not seek to cross-examine the witnesses. Accordingly, the following witnesses were not called but the Tribunal has had regard to their statements:[29]
·Mr J,[30] the Applicant’s sister’s partner;
·Mr O,[31] the Applicant’s friend; and
·Reverend Fr Simeon.
[29] Exhibit A2, pages 36-38; 45-46; R2, G56.
[30] A pseudonym.
[31] A pseudonym.
Additional statements were submitted to the Delegate prior to the Reviewable Decision being made. This material was admitted into evidence as part of the G Documents[32] and the Tribunal has also had regard to these statements. The Tribunal notes the G-Documents also included a copy of the DFAT Country Information Report: Myanmar dated 18 April 2019 (the DFAT Report) submitted by the Applicant in support of his request for revocation.[33]
[32] R2, G22-G60.
[33] Department of Foreign Affairs and Trade, DFAT Country Information Report: Myanmar (Report, 18 April 2019); R2, G33.
The Tribunal admitted the following documents into evidence:
·
Exhibit A1 – Applicant’s Statement of Facts, Issues and Contentions dated
18 September 2020;
·Exhibit A2 – Applicant’s Bundle of Evidence;[34]
·Exhibit A3 – Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 16 October 2020;
·Exhibit R1 – Respondent’s Statement of Facts, Issues and Contentions dated 9 October 2020;
·Exhibit R2 – G Documents (G1-G64); and
·Exhibit R3 – Tender Bundle.
CONSIDERATION
[34] Submitted in two parts but sequentially numbered (1-67).
The Applicant’s criminal history
The Applicant’s offending history is set out in the National Criminal Check ‘Nationally Coordinated Criminal History Check Results Report’ dated 25 May 2020 (National Criminal Check).[35]
[35] R2, G16, pages 62-63.
The Applicant’s offending history is summarised in the following table which is drawn from the National Criminal Check and the Western Australian History of Court Record:[36]
[36] R3, pages 3-5.
Court Conviction date Offence Offence Date Result Perth District Court of Western Australia 27 November 2018 Possession of Prohibited Drugs with
Intent to Sell or Supply (Cannabis);
Misuse of Drugs Act 1981; 6 (1)(a) B
12 January 2017 [Counts 1] Imprisonment: 18 months concurrent from 26 November 2018, Concurrent; Drug Trafficker Declaration Possession of a Prohibited Drug
With Intent to Sell or Supply
(Methylamphetamine); Misuse Of
Drugs Act 1981; 6 (1)(a)0
[Counts 1] Imprisonment: 3 Years 6 Months concurrent from 26 November 2018. – Concurrent; Drug Trafficker Declaration Perth Magistrates Court 24 January 2017 No Authority to Drive - cancelled 16 December 2016 [Counts 1] Fine: $1300; Motor driver’s licence disqualified: 9 months - Cumulative Provided false or misleading personal details [Counts 1] Fine: $200 Used an unlicensed vehicle [Counts 1] Fine: $80 Midland Magistrates Court 29 January 2016 Breach of ISO (Order of 30-Jan-2015) [Counts 1] Fine: $1800 (global) Person who breaches CRO or community order without reasonable excuse [Counts 1] Fine: $500 (global) Breach of Iso (order of 30-Jan-2015) [Counts 1] Fine: $1800 (global) Person who breaches CRO or community order without reasonable excuse [Counts 1] Fine: $500 (global) Perth Magistrates Court 30 January 2015 No Authority to Drive – Never held and Disqualified 20 December 2014 [Counts 1] Motor driver’s licence disqualified: 12 months -
Cumulative; Fine: $1000
Breach of ISO (order of 27-Nov-2014) [Counts 1] Intensive supervision order to Continue Breach of ISO (order of 27-Nov-2014) [Counts 1] Intensive supervision order to continue 8 December 2014 No Authority to Drive – Never held and Disqualified 27 August 2014 [Counts 1] Fine: $400; Motor driver’s licence disqualified: 9 months - Cumulative Midland Magistrates Court 27 November 2014 Criminal Damage or Destruction of Property; Criminal Code (WA); 444(1)(b)A 27 November 2013 [Counts 1] Intensive supervision order: 12 Months Concurrent from 27 November 2014 - Concurrent Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Code (WA); 313(1)(a) [Counts 1] Intensive supervision order: 12 months concurrent from 27 November 2014 – Concurrent Perth Magistrates Court 2 October 2013 Exceed 0.02g alcohol per 100 ml of blood; >=0.02g/100ml but <0.05g/100ml 22 August 2013 [Counts 1] Fine: $150; Motor driver’s licence disqualified: 3 months 28 February 2012 Disorderly behaviour in public; Criminal Code (WA); 74A(2)(a) 27 November 2011 [SPENT] [Counts 1] Fine: $250.
The Applicant’s convictions primarily comprise of prohibited drug offences, violent offending, driving and traffic offences and general offending. In summary, the Applicant’s offending history includes the following offences for which the Applicant was convicted between 2012 and 2018:
·a conviction for common assault in circumstances of aggravation where the victim was the Applicant’s then domestic partner;
·drug offences (both arising from the same police raid) including possession with intent to sell or supply methylamphetamine and possession with intent to sell or supply cannabis;
·general offences including criminal damage or destruction of property, disorderly behaviour, providing false or misleading personal details and breaches of community orders; and
·traffic offences including driving under the influence, driving without authority and using an unlicensed vehicle.
Drug related offences
As noted above, the mandatory cancellation of the Applicant’s visa was triggered by his conviction and sentencing for the offences of possession of a prohibited drug with intent to sell or supply (methylamphetamine) and possession of prohibited drugs with intent to sell or supply (cannabis) for which he received concurrent sentences of imprisonment of: three years and six months; and eighteen months, respectively.
According to the sentencing judge’s remarks, the offence occurred on 12 January 2017 when police executed a search warrant at a residence leased by the Applicant along with two flatmates.[37] The Applicant attempted to prevent the police entering the bedroom in which he was located but he was subdued and the police entered the room where they found trafficable quantities of methylamphetamine and cannabis. Other items were found in the house implicating the Applicant and his flatmate in the sale of drugs. The Applicant denied the offences and plead not guilty.
[37] R2, G17.
The sentencing judge found that the only reasonable inference to be drawn from the quantity of methylamphetamine was that it was being distributed for commercial gain.[38] The sentencing judge was satisfied that both the Applicant and his flatmate were equally culpable and were in joint possession of the drugs with intent to sell or supply them.[39]
[38] R2, G17, page 67.
[39] R2, G17, page 70.
The Applicant has not been convicted of any other drug related offences before or since these offences.
Violence and property offence
The Applicant has been convicted for one violence offence against a former domestic partner.
On 27 November 2014 the Applicant was convicted of common assault in circumstances of aggravation and placed on an intensive supervision order for 12 months. The same date he was convicted of criminal damage or destruction of property for which he was placed on an intensive supervision order for 12 months. The orders were concurrent.
According to the Statement of Material Facts, these convictions arose from events which principally occurred on 27 November 2013.[40] The Applicant went to an address where his partner was located. The partner was talking to the Applicant’s parents about the relationship. The Applicant became angry when his girlfriend would not come out of the house where she was speaking to his parents and kicked all four doors of her car causing damage. The Statement of Material Facts also states that he further damaged the victim’s car on 14 March 2014 and 12 April 2014.
[40] R3, pages 19-20.
After the Applicant and his girlfriend returned to their home, they argued over the damage to the car. The victim threw a glass bottle at the Applicant’s car causing a small dent. He punched her with his right fist to her left eye ‘causing her to fall to the ground dazed’. He dragged her into the house and splashed water on her face to revive her. She received bruising to her left eye as a result of the assault. The charges were laid following the Applicant’s arrest for another matter.
The Applicant plead guilty to the offences. However, before the Tribunal he disputed the details of the assault offence saying he had knocked his girlfriend with his hand while trying to prevent damage to his car, denying that he punched her in the eye.
The material before the Tribunal included police reports of other instances of violent conduct involving his former partners and family members. This was not conduct for which the Applicant was charged and convicted. This material is considered further below.
Traffic and driving offences
The Applicant has been convicted of a number of driving offences including driving under the influence of alcohol (exceed 0.02), driving without authority, providing false or misleading personal details and using an unlicensed vehicle. These offences commenced in 2013 (when the Applicant was on his provisional licence) and continued until December 2016. The Applicant acknowledged before the Tribunal that he knowingly and repeatedly drove without a licence and that he regrets the offences.[41] In relation to the drink driving offence he claimed he had been drinking with friends and had waiting several hours before diving and did not realise he would be over the limit.[42]
[41] A2, pages 10-11.
[42] A2, page 11.
Breach of court orders and offences against police
The Applicant has also been convicted of breaching intensive supervision orders on several occasions. As noted above, he has also been convicted of providing false or misleading personal details and of disorderly conduct.
The circumstances and seriousness of the Applicant’s offending is considered further below.
The issues of going behind or impugning the convictions
The Applicant has acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
As noted above, the Applicant contested some details of the events which lead to the assault and criminal damage charges. Before the Tribunal, he accepted that his conduct with respect to his former partner was wrong. He plead not guilty to the drugs offences at trial and maintains that the drugs were not his and that he never sold drugs for money. However, he claimed before the Tribunal to accept he is guilty of the offences because he assisted with the sale of drugs from the property. He maintained he only received drugs of personal use in exchange for his involvement but accepts that this made him a party to the sale of the drugs.
The Tribunal did not understand the Applicant to be challenging the sentencing judge’s findings but rather to be explaining the perspective he held on the offences prior to his imprisonment which lead him to plead not guilty.
In any event, it is not open to the Tribunal to go behind his conviction to determine an applicant’s guilt or innocence. This was established by the Federal Court in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP), as affirmed by the Full Court of the Federal Court in the case of HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (HZCP FC).
In the first instance decision in HZCP, Bromberg J gave detailed consideration of the authorities[43] and summarised the principles to be applied as follows (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.
[43] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a ‘heavy onus’ on the Applicant where they seek to challenge the facts upon which those convictions are based.
The Tribunal considers that it is bound by the principles espoused in the authorities and in particular, by the decision of the Full Court of the Federal Court in HZCP FC.
However, the situation with respect to the conduct the subject of the police reports, which the Applicant denied, is of a different nature and the Tribunal has considered that material in the context of all the evidence, including that given by the Applicant and the witnesses at the hearing. For the reasons outlined further below, the Tribunal does not regard this material as establishing that the Applicant has engaged in other serious conduct which materially contributes to the assessment of the nature and seriousness of his offending or his risk of reoffending. Accordingly, the Tribunal does not place significant weight on that material.
Does the Applicant pass the character test?
The Applicant accepted that he does not pass the character test.
The character test is defined in s 501(6) of the Migration Act.
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Migration Act).
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test under s 501(6)(a). The Tribunal is not satisfied that the Applicant passes the character test (see s 501CA(4)(b)(i) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
As the Tribunal is not satisfied the Applicant passes the character test, the Tribunal must then consider whether, having regard to the primary and other considerations in Direction No 79, there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Following the notification of the intention to cancel his visa, the Applicant made representations to the Department requesting that his visa not be cancelled. This included a written statement from the Applicant, supporting statements from friends or referees, country information and other material.
Before the Tribunal, the Applicant made written and oral submissions outlining his central contentions as to the reasons why the Cancellation Decision should be revoked, in similar terms to submissions made before the Department.
The Applicant’s primary contentions were that his low risk of re-offending, his strong ties to Australia, his positive contributions to Australia and significant impediments if removed to Myanmar constitute another reason why the cancellation should be revoked.[44] In written submissions the Applicant also contended that Australia’s non-refoulement obligations would be engaged if he were returned to Myanmar. However, following the evidence at the hearing, the Applicant indicated any issues raised with respect to return to Myanmar were ‘best considered’ as impediments to return as the evidence of non-refoulement issues was ‘essentially anecdotal’.[45] This issue is considered further below.
[44] A1, A3.
[45] Transcript, 22 October 2020, page 141; see also pages 148-150.
The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh against the Applicant and outweigh other considerations.[46] The Applicant had a history of serious offending including violence against women and drug offences. If he were to reoffend, the consequences for the community would be so serious that any risk of reoffending is unacceptable. While the Applicant claims to be remorseful and rehabilitated, his rehabilitation is largely untested and he has previously denied or minimised his offending which casts doubt on his current claims at remorse. The Respondent submitted that he presents an unacceptable risk to the Australian community. While the Applicant has ties to Australia and may face some challenges on return to Myanmar, there was insufficient evidence his return would engage Australia’s non-refoulement obligations and there were no substantial language or cultural barriers to his removal.
[46] R1.
These submissions will be dealt with in more detail below.
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) provides that consideration should also be given to two issues: the nature and seriousness of the Applicant’s conduct to date; and the risk to the Australian community should he commit further offences or engage in other serious conduct.
In summary, the Applicant pointed to the following with respect to his risk of reoffending:
·he accepted his offending was serious;
·his risk of further serious offending was low particularly having regard to his young age at the time of the offences, the time which passed since he committed a violent offence, his good behaviour while on bail between January 2017 and November 2018, his efforts at rehabilitation and his acknowledgement of the effect any further offending would have on his family and immigration status, his positive employment history and his strong family support in Australia;
·he was living in Australia for an extended period prior to his incarceration and during this time was making a positive contribution to the Australian community; and
·the report of the prison Medium Intensity Program (General Offending) (Medium Intensity Program), the granting of parole and the assessment of Dr Watts support the conclusion that the Applicant presents a low risk of reoffending.
The Respondent contended that the Applicant’s offending against his previous partner must be viewed very seriously having regard to Direction No 79. Further, the Respondent contended that his history of offending and conduct involving violence against women was not limited to a single incident having regard to police reports of other incidents which did not result in a conviction. The Respondent also contended that the Applicant’s drug offending was serious and presented a significant risk to the Australian community. His history of traffic offending was also serious and demonstrated a reckless disregard for Australia’s laws. The Respondent submitted that the serious nature of the Applicant’s offending and of the consequences which could flow from any repetition of that offending mean that the community should not be expected to tolerate any risk of similar offences being repeated. In any event, the Respondent submitted that limited weight should be placed on the Applicant’s claimed efforts at rehabilitation and remorse given his history of denial of guilt with respect to the drug offences and non-compliance with court orders with respect to the assault offence against his partner. In such circumstances, the Respondent maintains that the Applicant remains an unacceptable risk to the Australian community.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)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);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
In considering the protection of the Australian community the Tribunal must give consideration to the nature and seriousness of the Applicant’s offending and other serious conduct.
The Applicant’s offending history is outlined above. A summary of the Applicant’s offending indicates that his convictions are primarily comprised of prohibited drug offences, violent offending, driving and traffic offences and general offending.
The Applicant did not seek to diminish the seriousness of his offending but submitted that it had been a significant time since he had last offended (January 2017) and that he had since made significant changes to his life which had assisted him to cease offending, including for a period of almost two years while he was on bail awaiting trial on the 2017 drug offences.
The seriousness of the offences which gave rise to the mandatory cancellation of the Applicant’s visa was reflected in the comments of the Stone DCJ, who in considering the sentence to be imposed, stated (referring to the Applicant and his flatmate, the
co-accused):[47]
The gravity and seriousness of your offending is reflected in the statutory maximum penalties for the offence committed. ….
…
Your offending is serious. … In my view, having sat through the trial I am of the view that you are both equally culpable and I see no reason to distinguish between the role you each played but I am satisfied beyond reasonable doubt that you were both in joint possession of the methylamphetamine with intent and the cannabis with intent.
On all the available evidence I’m satisfied that you could be characterised as low level dealers of methylamphetamine for reward and you can be characterised as low level user dealers of cannabis for reward. … in view of the seriousness of the offence of possession of methamphetamine with intent to sell or supply it to another, a term of immediate imprisonment is the only appropriate disposition.
[47] R2, G17, pages 67, 70, 72.
The sentencing judge went on further to note the effect of the offending on the community:[48]
What you need to appreciate is that the distribution of methylamphetamine in this State has caused a lot of misery and crime.
It’s caused a lot of misery for those who are addicted to it, because it’s a highly addictive drug. And it is not only misery for the addicts but for the family of the attics, and for the community.
It has also contributed to a significant amount of crime in this state. Almost every case that is dealt with by this court, almost every case, is in one way or another, related to methylamphetamine.
[48] R2, G17, page 71.
The Applicant was sentenced for a total of five years’ imprisonment for the 2017 drug offences. While he submitted this was well below the statutory maximum and in the sentencing judge’s words reflected ‘the need for general deterrence’, the Tribunal considers this is not an insignificant sentence having regard to the principle that imprisonment is a sentence of last resort and that these were the first drug related offences for the Applicant.[49] The sentencing judge also noted that the government had recently increased the maximum imprisonment for drug offences involving amounts for which the Applicant had been charged to life imprisonment, noting that the Applicant had been fortunate that he had been apprehended before the change in the law had come about otherwise he would have been looking at ‘firmer sentences’. The Tribunal regards that the sentence imposed reflects the serious nature of the offences.[50]
[49] See Pavey and Minister for Home Affairs [2019] AATA 4198.
[50] Paragraph 13.1.1(1)(d)
The Tribunal notes that the 2017 drug offences were the first offences of this kind for which the Applicant has been convicted. However, his Honour’s comments make it clear that the incident was not isolated and that there had been dealing activity in the lead up to the events for which the Applicant was convicted, including ‘dealing mainly in cannabis and in MCs’.[51] His Honour noted that although the Applicant was not being punished for that other activity, it placed the Applicant’s possession of the large quantity of methylamphetamine ‘in its proper context’.[52] At the hearing the Applicant accepted he had been involved in prior drug use and in supplying drugs.[53]
[51] It is not clear what ‘MCs’ refers to in this instance. R2, G17, page 67.
[52] Ibid.
[53] Transcript, 21 October 2020, pages 39, 49-50, 56-57.
Considering the circumstances of the Applicant’s conduct and offending, the sentencing judge’s comments and the sentence imposed, the Tribunal considers the Applicant’s drug offending to be very serious.
According to Direction No 79, violent and/or sexual crimes are to be viewed very seriously.[54] This is particularly the case for violent crimes where the victim is a woman, regardless of the sentence imposed.[55] The Applicant has one conviction for assault in circumstances of aggravation where the victim was his partner. Applying Direction No 79, the Tribunal accepts that this offence is to be viewed very seriously.
[54] Paragraph 13.1.1(1)(a) and (b).
[55] Paragraph 13.1.1(1)(b).
The Respondent contended that there was evidence that the offence of aggravated assault was not a one-off instance of violence against women by the Applicant. This evidence included police reports made by the Applicant’s mother and sister alleging violent and threatening behaviour by the Applicant and a report by another of the Applicant’s former partners alleging violent behaviour, intimidation and sexual assault.[56] There is no evidence any charges were laid with respect to any of these reports and the Applicant submitted statements from the alleged victims declaring that the reports were incorrect and that the Applicant had not been violent toward them.[57]
[56] R3, pages 22, 25 and 28.
[57] A2, pages 17, 47-48, 65.
The Respondent submitted that the Tribunal is permitted to have regard to conduct for which there is evidence to support a factual finding that the conduct had occurred, whether or not there has been a conviction in respect of the conduct.[58] The Applicant did not dispute the capacity of the Tribunal to have regard to such evidence but submitted that the Tribunal is equally permitted to have regard to evidence that supports the factual finding that the conduct did not occur, which the Applicant contends is the case in this instance.
[58] R1, [32] citing Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90, [64] (Callaghan J; Katzmann J and Stewart J agreeing at [1] and [69] respectively) (Vu).
The Tribunal accepts that it can properly have regard to conduct which has not been the subject of a conviction.[59] However, where that evidence is contested by the Applicant and the alleged victim, the Tribunal regards that it must be mindful that the evidence has not been tested in a criminal court and in this instance did not result in charges being laid against the Applicant. In particular, the Tribunal notes that the reports were prepared by officers who did not give evidence as to their veracity, the circumstances in which the reports arose or the subsequent disposition of the complaints. This is relevant in this case because the victims contend their complaints were misrecorded or misconstrued. As Colvin J noted in HZCP FC at 165 [186]:
Nevertheless, in any decision‑making context (administrative or judicial) some modes of proof carry considerably more weight than others. Also, the weight to be afforded particular material depends upon the seriousness of the allegation the decision‑maker is asked to accept, any inherent unlikelihood of its occurrence and the gravity of the consequences that may flow from making the finding. In the classic exposition of this point by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363, his Honour captured its essence by saying “the nature of the issue necessarily affects the process by which reasonable satisfaction is attained”. If there is no conviction and a party makes a claim that a crime has been committed by another then due “weight is to be given to the presumption of innocence and exactness of proof is expected”. Likewise, if the claim made is that a person has been wrongly convicted or sentenced or the facts upon which that conviction or sentence were based were untrue then due weight must be given to the character of that claim and its seriousness.
(Emphasis added.)
[59] In addition to Vu see Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433 at 436 [11] (Bennett and Buchanan JJ, Moore J agreeing); SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 410 [92] per Katzmann J).
While the Respondent did not contend that a crime had been committed by the Applicant with respect to this conduct, in the Tribunal’s view weight should still be given to the presumption of innocence particularly in the instance where his victims deny the alleged conduct. The Tribunal is mindful that there may be reasons for family members or former partners who are victims of this kind of alleged conduct to deny or minimise its significance particularly given the serious consequences of the proceedings for the Applicant. However, having regard to all the evidence and particularly to the evidence of the Applicant’s sister and mother, the Tribunal considers that there is significant doubt that the police report of alleged conduct towards them is accurate to the extent it could support factual findings that the Applicant engaged in the conduct alleged. The Applicant’s sister denied she was present when the report was made.[60] The Applicant’s mother denied making a formal report at all but said she had attended the police station on the occasion in question to retrieve her car keys and had responded to questions asked of her. She did not deny complaining about the Applicant’s behaviour in general terms but denied violence towards herself and her daughter.[61] Her account was supported by her partner.[62]
[60] A2, page 65; Transcript, 21 October 2020, pages 81-85.
[61] Transcript, 21 October 2020, pages 99-101
[62] Transcript, 22 October 2020, pages 129-130.
Similarly, the Applicant’s former partner was not cross examined and her sworn statement indicates the report was a misunderstanding caused by the intervention of a friend. While the former partner had obtained a VRO against the Applicant, she stated she had done so to prevent him contacting her, which she says he has not done since the order was put in place (the order expired in January 2018).[63] She says this was not due to any violence by him towards her.[64]
[63] R3, pages 32-33.
[64] A2, pages 47-48.
The Tribunal observes that there were inconsistencies in the account of the family’s contact with police given by the Applicant’s mother, sister and stepfather. They separately mentioned occasions when the police had been contacted regarding the Applicant’s behaviour. Their evidence about when this occurred and what was said differed. However, their evidence was consistent with respect to the claim that they had contacted the police in a bid to curb the Applicant’s behaviour and scare him into changing his behaviour. However, they consistently denied that the behaviour involved any physical violence towards the Applicant’s mother or sister. On balance and in the absence of evidence to establish the veracity of the police reports, the Tribunal accepts their evidence that there was behaviour by the Applicant which they felt unable to control or curtail and which caused them to engage the police but this did not include violence towards them.
The Applicant did accept on cross-examination that there was one prior incident with his girlfriend where police had been called because he was preventing her from leaving the house because she would not help him search for their dogs who he said she had released from the yard. Police were called however the Detected Incident Report notes there was no violence or damage to property and that it was a verbal argument only. No further action was taken.[65] The Applicant agreed with the broad terms of the incident report and said he was being selfish at the time because he wanted his girlfriend to help find the dogs.[66]
[65] R3, page 24.
[66] Transcript, 21 October 2020, page 45.
In the Tribunal’s view the evidence established that the Applicant had a history of conduct which involved an inability to control his anger against family members and intimate partners. This extended to damage to property and verbal outbursts, with respect to which the Applicant’s family and former partners have sought police intervention to deter the Applicant for continuing this behaviour. However, while that conduct contributes to the assessment that the Applicant’s conduct during the period in which he was offending was unacceptable, the Tribunal does regard that it established he had a history of violent physical conduct towards women as asserted by the Respondent. In this respect the Tribunal places some weight on the material but does not regard that it contributed significantly to the assessment of the seriousness of the Applicant’s conduct or offending.
The Tribunal notes that some of the individual offences are not of a category of offence that Direction No 79 regards as being viewed very seriously regardless of the sentence imposed. However, paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. In the Tribunal’s view the Applicant’s history of repeat traffic offending should also be viewed as serious. The Applicant was convicted of driving while exceeding the blood alcohol limit while still on his provisional licence. Between 2014 and 2016 he was convicted several times of driving without a licence and in an unregistered vehicle. The seriousness and potential harm caused by driving offences and the cumulative effect of multiple traffic offences and repeated traffic offences are taken very seriously by this Tribunal.[67] The Applicant’s record of repeat driving offences tends to indicate a disregard for legal authority and an inability to appreciate the adverse consequences of this type of offending which places the safety of members of the public at risk. There are a range of implications and potential risks associated with such offending including insurance implications. However, while the Tribunal finds the totality and nature of the Applicant’s driving offences to be serious, given his young age at the time of that offending and the fact he was able to regain and not lose his licence while awaiting trial, the Tribunal regards this offending to be at the lower end of seriousness of offending of this kind.
[67] See, for example: RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437, [97]–[98], [106]; WSML and Minister for Home Affairs [2019] AATA 41, [63]–[64]; Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370, [54]; VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649, [178]–[183].
The Tribunal notes the Applicant has a number of other offences including damage to property and disorderly conduct, however the Tribunal does not regard those offences as contributing significantly to the overall assessment of the seriousness of the Applicant’s offending.
Looking at the other factors identified in paragraph 13.1.1(1), the Tribunal finds the following:
(i)The offences were not against vulnerable members of the community, government representatives or officials.[68]
(ii)There can be said to be an increasing trend in the seriousness of the Applicant’s offending as noted by His Honour on sentencing.[69] In the Tribunal’s view the frequency and trend of increasing seriousness of the Applicant’s offending contributes to the assessment of his offending as serious.
(iii)The Applicant has some 17 offences over a six-year period. This is not an insignificant number of offences given the Applicant’s young age. The Tribunal regards that the cumulative effect of repeated offending in the Applicant’s case, particularly with respect to his repeated traffic offences, contributes to the assessment of the seriousness of this offending.[70]
(iv)There is evidence the Applicant has provided false or misleading information to immigration officials on his incoming passenger card in March 2014 by not declaring his criminal convictions. However, the Tribunal notes that at that time, the Applicant only had a drink driving conviction and a disorderly behaviour conviction and the Tribunal does not place significant weight on his failure to declare these offences in the assessment of the seriousness of his offending.[71] The Respondent also notes the Applicant has a conviction for providing false details to the police. The Tribunal does not consider this to be relevant to paragraph 13.1.1(1)(g) but accepts that it does not reflect well on the Applicant and in the context of his traffic offences in particular contributes to disregard for lawful authority which is displayed by such offending.
(v)The Applicant has not received any prior warnings.[72]
(vi)There is no evidence the Applicant has committed offences in prison or immigration detention.[73] In this regard the Tribunal notes the evidence suggests that the Applicant has been a generally compliant inmate.[74] The Tribunal accepts on the evidence that the Applicant has been on generally good behaviour in prison which is to his credit.
[68] Direction No 79, para 13.1.1(1)(c).
[69] Direction No 79, para 13.1.1(1)(e); R2, G17, page 69.
[70] Direction No 79, para 13.1.1(1)(f).
[71] Direction No 79, para 13.1.1(1)(g); R2, G8, page 33; R1, [38].
[72] Direction No 79, para 13.1.1(1)(h).
[73] Direction No 79, para 13.1.1(1)(i).
[74]See for example R2, G38, page 216.
Having regard to all the circumstances of the Applicant’s conduct and offending, the Tribunal considers that the nature and seriousness of the Applicant’s offending and conduct is very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
Paragraph 13.1.2(1) of Direction No 79 provides:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[75] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[76]
[75] Nigro v Secretary to the Department of Justice (2013) 41 VR 359 cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124[42]-[43]. See also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[76] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
The Applicant accepts that the nature of harm to the Australian community should he commit similar offences is serious.[77] The Applicant’s main contention with respect to this consideration is that he presents a low risk of reoffending due to his current self-awareness and insight into his offending behaviour, his efforts at rehabilitation including his completion of the Medium Intensity Program in prison, his supporting family in Australia, his commitment to his family and his good prospects for employment. This contention is supported by the assessment of the Prisoners Review Board in granting the Applicant parole and by the assessment of Dr Watts.[78] The Applicant contends that the cumulative effect of these considerations is that the Applicant does not present an unacceptable risk to the community.
[77] A1, page 8, [56]-[59].
[78] A1, pages 8-12.
With respect to the risk to the Australian community should the Applicant re-offend, the Applicant submitted that he presents a low risk of re-offending. In particular, the Applicant cited the following in support of the low risk of reoffending he presents to the community:[79]
[79] A1, pages 8-9.
·the fact the offending took place when he was between 18 and 23 years old and that he now has increased maturity and insight into his offending;
·the fact that he has not committed any violent offending in almost seven years and the fact that he is extremely remorseful about the only violence offence for which he was convicted;
·the fact the Applicant was granted bail and abided by his reporting conditions while living in the community between January 2017 and November 2018;
·the fact that his driver’s licence was reinstated in 2018 and he did not commit any further driving offences before his incarceration;
·he had not been sentenced to imprisonment prior to the 2017 drug convictions and had not been charged with any drug related crimes prior to or since January 2017. He has not committed any other offences despite being in the Australian community for a further year and 10 months while awaiting trial;
·he engaged in voluntary rehabilitation programs while incarcerated and reported treatment gains;
·in July 2020 the Prisoners Review Board assessed that the Applicant would not pose an unacceptable rest of the safety of the community and granted him parole;
·the Applicant is aware of the consequences any further behaviour would have on his immigration status and his family;
·the Applicant has a positive employment history and good prospects of future employment. He also has accommodation plans which have been approved by the Prisoners Review Board and is aware of supports in the community;
·the Applicant has a significant change in his mindset and attitude including accepting responsibility for his offending and making significant changes to his lifestyle; and
·the Applicant’s relationship with his family has improved significantly since he was charged with the 2017 drug offences and his family are now equipped to support him to re-enter the community.
The Respondent contended that if the Applicant were to reoffend it would clearly cause ‘wide reaching’ harm to members of the Australian community. The Applicant presents a risk of reoffending and the protection of the Australian community weighs against revocation.[80]
[80] R1, pages 13-18.
In particular, the Respondent contended that the Tribunal should have significant concerns in respect of the risk of re-offending having regard to the following:[81]
·there is no independent evidence to support a conclusion that the Applicant is of no risk of reoffending in the Australian community;
·the Applicant has a history of long-standing drug use and there is insufficient evidence to demonstrate that he has rehabilitated. His current commitment to claimed sobriety has not been tested in an unsupervised environment where he has not been subject to any Court orders and there is no independent evidence to confirm that the Applicant has remained drug-free over the period when he was on bail. His evidence is that he continued to use cannabis for at least part of that period;
·while the Applicant claims to be remorseful, his claim should be given limited weight in circumstances where he pleaded not guilty to the 2017 drug offences and has attempted to minimise his offending including with respect to the assault charge;
·the Applicant has a history of non-compliance with orders and has failed to attend group counselling sessions with respect to the violence offending;
·the Applicant has demonstrated a lack of insight into his offending, particularly with respect to the domestic violence against his former partner; and
·the fact that the Applicant’s family and social network have not acted as a protective factor against offending for the Applicant in the past and there is no evidence that they will prove effective in curbing his offending behaviour in the future.
[81] R1, pages 13-18.
The Applicant has committed serious offences including drug offences and an offence of violence against his partner. He has also committed a number of traffic offences which is conduct the Tribunal regards as serious.
As noted above the sentencing judge commented on the serious impact the distribution of methylamphetamine (in particular) has not only for those who take drugs but also for their families and for the community more broadly by contributing to crime.[82] The Respondent cited the Final Report of the National Ice Task Force noting that:[83]
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long-term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
The Respondent also cited the health, social and economic harm caused by illicit drug use contained in the National Drug Strategy.[84]
[82] R2, G17, page 71.
[83] R1, page 14 citing the report reproduced at R3, page 149.
[84] R1, page 14 citing the report reproduced at R3, page 155-162.
In the Tribunal’s view there can be no doubt that the effects of the sale and supply of illicit drugs, particularly methamphetamine, on the community are very serious. Such offending presents a significant risk of harm not only to those who consume and are dependent upon illicit drugs but on the community as a whole which bears the cost of the health and criminal justice repercussions of drug use and sale in the community. Should the Applicant reoffend, serious harm could be caused to members of the Australian community who use drugs and to their families. It could also cause harm to the community more broadly through increased crime and concomitant social, health and economic costs to the community.
Similarly, there can be little doubt that serious harm could be caused to a victim if the Applicant were to offend in a violent way against a past or future domestic partner. In this instance his partner did not require medical treatment for her injuries, however there is a real risk that physical violence can result in serious injuries to a victim. The Tribunal finds that if the Applicant were to reoffend in a manner consistent with his past violent offending, this would likely cause significant harm to members of the community including physical injury to victims including the Applicant’s past or future partners.
As noted above, repeated traffic offences also present a risk of serious injury to the community through motor vehicle accidents and impacts on insurance systems designed to protect victims of traffic accidents.
Accordingly, the Tribunal finds that the nature of harm that could result if the Applicant were to reoffend in a similar manner is very serious.
The Tribunal has also considered the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[85]
[85] Direction No 79, para 13.1.2(1)(b).
The sentencing judge noted that the Applicant showed no remorse with respect to the 2017 drug offences.[86] Further, there were observations in the Medium Intensity Program completion report that during the early stages of the program the Applicant had ‘minimised his substance use and initially reported that he did not consider his drug use to be problematic.’[87] The report also noted that the Applicant ‘minimised his offending and maintained that his sentence was unfair as he was not involved in drug dealing…’.[88] The report notes that ‘[t]o this end [the Applicant] presented with pro criminal attitudes and one who had adopted a victim stance in relation to his offending.’[89]
[86] R2, G17, page 70.
[87] R2, G59, page 257.
[88] R2, G59, page 256.
[89] Ibid.
When the Tribunal put to the Applicant that the fact he and his mother had been able to return to Myanmar on a number of occasions might suggest that the Burmese authorities were not interested in his previous activities or that he would not face adverse attention from them because of those activities if he returned again to Myanmar, he said:[133]
There is - even there is no interest in me about the, what, with the political thing, my mum - I mean, it’s like, reminds the place that where I can have - it’s really hard for me to get a good future over there. And plus, the time that I’ve been here for 11 - over 11 - almost 11 years which really call Australia as a home where I have my family in hope and the future.
[133] Transcript, 21 October 2020, page 54.
When his mother was asked whether she had any concerns about the Applicant returning to Myanmar, she stated:[134]
Yes, I am very concerned about my son. He left Burma quite young, didn’t really finish the study either. Quite a few years in Australia and a lot of things happened and that he also is very incomplete in many sense and no place to stay when he go back there. It will be very difficult for him to continue life in Burma because no father, no place to stay and sister and mother are here, the only relatives in that sense, so it will be a lot of concern. I don’t know what to expect, what difficulties are unknown. I believe he will be taken into gaol and that would be very difficult with gaol and all these things because drug cases and things like that here he has (indistinct) and that could be a reason that they would take him into gaol and it would be quite harsh dealing with drugs and things with the history, like from here in complete sentencing and things like that. And Burmese - gaol in Burma from what I know, is a lot of sexual harassment, even as a guy - a guy could, you know, do sexual bullyness [sic] and things like that - very different, so I believe it would be very difficult.
[134] Transcript, 21 October 2020, page 89.
When the Applicant’s stepfather was asked if he had concerns regarding the Applicant’s return to Myanmar, he stated:[135]
Yes, like as I just tell you before, the same thing that I also can see that even in my – for me, as I say, adult, over 40 person, going back and – someone is telling me, “Go back to your country, and then try to start your life.” I don’t even know how to start my life, because most of my time in Australia seem to GNLS, he just – we brought him at the age of around 15 or 16 at a teenage. He just didn’t know. He would just start touching to the outer society, and then we brought him to Australia, and then – and then we couldn’t treat him, we couldn’t raise him well. So these all 10 years GNLS been got trouble and so and so, and then when he had to go back to Burma at the age of over 20, I can’t even think that how GNLS is going to start his own life. I can’t imagine that.
[135] Transcript, 22 October 2020, page 123.
His sister expressed concerns in similar terms stating:[136]
Because he’s going back with his conviction here, so they’re probably might going to ask why he has to come back there and then if they find out that he’s related with the drugs, Myanmar is very harsh for the drugs things, and also the - Myanmar have no, like, in here, like, no Centrelink, no, like, housing, home giving that, whatever, so he has nowhere to stay and he probably going to be in the homeless, or either way they’re going to ask him for, because of his drug case, they can continue because he stayed into Burma so it could be continue his sentence maybe, that’s why.
[136] Transcript, 21 October 2020, page 75.
While there was some confusion over the documentation the Applicant had travelled on from Myanmar and what he had used for his return visits, this was largely resolved by the testimony of his stepfather who testified that the Applicant had travelled to Australia on a travel document issued by the Australian Government.[137] The Applicant’s stepfather had later applied for and obtained Burmese passports from the Burmese embassy in Australia for the Applicant and his sister prior to the family’s return trip to Myanmar in 2012. He said he explained the circumstances to the Embassy and they issued passports and provided a letter saying that the requisite fees had been paid. He said they had no issues with the Burmese authorities on their return visits.[138]
[137] R2, G30, page 139.
[138] Transcript, 22 October 2020, pages 136-137.
Following evidence at the hearing, the Applicant’s representative conceded that with respect to non-refoulement claims ‘the evidence towards those is essentially anecdotal and so perhaps some of those concerns might be best considered when the tribunal is looking at the impediment his return to Burma’.[139] She went on to submit that while he had made ‘clearly articulated claims seeking to engage those obligations’, the Applicant accepted that insufficient external evidence had been provided to demonstrate that he would face some of those concerns or that ‘those concerns would come to fruition’.[140] This included a concession that there was no external evidence to demonstrate that he would face further prison time if he returned to Myanmar and that ‘a lot of the concerns and the evidence before the Tribunal is anecdotal and was provided essentially through word of mouth through the Burmese community.’[141]
[139] Transcript, 22 October 2020, page 141.
[140] Transcript, 22 October 2020, page 148.
[141] Transcript, 22 October 2020, page 149.
The Tribunal queried the extent to which it was necessary for the Applicant to identify the non-refoulement obligations on which he was seeking to rely, noting that the Applicant had suggested in submissions this was broader than those provided for under the protection visa provisions of the Migration Act but had not identified in what way they were broader in the Applicant’s case. The Applicant’s representative stated that the Applicant was asserting essentially what was in the submissions but that ‘while the Applicant has asserted these and while he has given clear examples, it may be more appropriate for the Tribunal to consider these as impediments to return’.[142] She went on state that the Applicant was not intending to ‘press this factor as one of the absolute factors that outweighs other factors’.[143]
[142] Transcript, 22 October 2020, page 149.
[143] Transcript, 22 October 2020, page 150.
The Tribunal accepts the Applicant’s written submissions articulated claims the Australia’s non-refoulment obligations were engaged in the Applicant’s case by the cancellation of his visa and consequential return to Myanmar. However. having considered the submissions and evidence of the Applicant, the Tribunal is not satisfied that the Applicant presented to the Tribunal ‘a serious and substantive basis in fact and in law’ for his claims that his return to Myanmar would breach Australia’s non-refoulement obligations.[144] The Tribunal was concerned that the nature of those obligations were not identified by the Applicant, and to the extent claims were made to fear harm on return to Myanmar, there was insufficient evidence to establish such fears were well-founded.
[144] Omar [82].
The Tribunal has considered the evidence provided by the Applicant in support of his claim to fear imprisonment on return to Myanmar because of his drug convictions, because he does not hold a current Burmese passport, as a returnee from Australia who ‘abandoned’ Myanmar, due to his mother’s political activity and refugee status or as a practicing Christian. The Tribunal accepts the Respondent’s submission that the evidence provided to support the claim that non-refoulement obligations arise with respect to the Applicant was not sufficiently probative for the Tribunal to make a finding in the Applicant’s favour. In this regard the Tribunal notes her Honour’s comments in Omar suggesting that a ‘substantive basis in fact and in law’ must be provided to support the assertion that non-refoulement obligations arise. In the Tribunal’s opinion, the Applicant failed to provide any evidence other than assertions by himself and by members of his family and friends that he would face harm in Myanmar due to his convictions. Further, even if the evidence was to be accepted on its own, in the Tribunal’s view there is a real question as to whether the harm identified would meet the threshold or be of the kind required for a non-refoulement obligation to arise. In this regard the Tribunal notes that the Applicant’s evidence at the hearing appeared to focus on harm associated with reintegrating and resettling in Myanmar, rather than a fear of persecution or significant harm of the type which might give rise to a non-refoulement obligation.
In this regard the Tribunal notes that the Applicant has also voluntarily returned to Myanmar on at least two occasions since settling in Australia. His mother, sister and stepfather testified they have also made multiple return trips to Myanmar since 2012. The Applicant’s stepfather confirmed that none of the family members had experienced adverse attention from the authorities on these return visits. The Tribunal places weight on the return visits as indicating that the Applicant and his family do not have genuine fears about returning to Myanmar on a repeat, if short term, basis. Further these visits suggest that the Burmese authorities have no adverse interest in the Applicant, his mother or any other member of the family for the reasons claimed, with the exception of the drug conviction which arose after the applicant’s last visit.
With respect to the Applicant’s status as a convicted drug trafficker in Australia the Tribunal notes that there is no evidence to suggest that the Applicant’s offences are connected to Myanmar. Further, there is no country information to support the claim that he would be imprisoned to serve the rest of his term in Myanmar, or the claim he would be imprisoned generally due to his Australian convictions. In this regard the Tribunal notes that the DFAT report indicates that the Burmese Constitution contains protections against double-jeopardy though the information appears to relate to prosecution in Myanmar.[145]
[145] R2, G33, page 193.
The Tribunal accepts that the Applicant may face some societal discrimination on the basis of his convictions. While the Applicant did not provide any independent evidence to support these claims, giving him the benefit of the doubt and having regard to the seriousness with which drug offences are regarded in Myanmar the Tribunal is prepared to accept that those with such offences may face social sanction there. This may include employers requesting evidence of his criminal convictions and may result in him having employment opportunities limited in a way which would not have occurred had he not been convicted of drug offences.
With respect to the Applicant’s claim that he will be imprisoned because he lacks a valid Burmese passport, the Tribunal finds this claim is not supported on the evidence. The Applicant has held a Burmese passport which on the evidence was issued without incident. He has used the passport to travel to Myanmar. While it is not clear if this remains valid there is no reason on the evidence to conclude that he would be denied a passport should he apply to have his renewed. The Tribunal does not accept he faces a real chance of harm on this basis.
While the Applicant raised a claim to fear discrimination on return to Myanmar due to his Christian faith, the Tribunal notes this was not raised by the Applicant or any of his family as a concern at the hearing. The Tribunal accepts the Applicant is a member of the Burmese Catholic Community in Western Australia. The Applicant did not provide any evidence of how he would plan to practice his faith in Myanmar however based on the evidence of his practice in Australia the Tribunal accepts he would be a member of the Catholic community and a practising Catholic in Myanmar. Country information suggests that he may face a moderate risk of social and official discrimination on this basis. There is no information before the Tribunal to suggest such treatment is sufficiently serious to give rise to a non-refoulement obligation. In this regard the Tribunal notes that the Applicant was previously a member Christian community in Myanmar where he was baptised and there was no evidence that he suffered harm on this basis while living in Myanmar. This suggests he would be able to return and practice his faith without suffering harm of the kind which might give rise to a non-refoulement obligation.
With respect to the Applicant’s mother’s background, the fact she has returned repeatedly to Myanmar without adverse attention from authorities suggests she is no longer of interest to authorities. The Tribunal finds on the evidence that the Applicant does not face a real chance of harm on this basis.
With respect to the Applicant’s claim he will be harmed for abandoning Myanmar, there is no country information or other evidence to support this claim and the Tribunal does not accept it.
The Tribunal finds the Applicant’s claims differed significantly as articulated in the hearing to those made in submissions, suggesting some of those fears were not genuinely held by the Applicant. There was little evidence provided to establish that the Applicant has a genuine or well-found fear of harm on return to Myanmar on the claimed bases, that there was a real chance the claimed harm would eventuate on return to Myanmar or that any feared harm was of a type which would give rise to a non-refoulement obligation. The evidence does not establish that there is a real chance that the Applicant will be persecuted for a convention related reason on his return to Myanmar or that the circumstances of his removal to Myanmar would engage Australia’s non-refoulement obligations for any other reason.
The Tribunal notes that the Applicant recognised that it was open to him to put in evidence to support his claims that a non-refoulement obligation arose with respect to his return to Myanmar as a result of a decision not to revoke his visa cancellation. The only evidence before the Tribunal was the DFAT report and the oral and written evidence given by the witnesses. As noted above, the Tribunal found their evidence in this regard to be in anecdotal terms.
The Tribunal notes, and the Applicant accepted, that it is open to the Applicant to make a protection visa application and if he chooses to do so to provide further evidence which may satisfy a different decision-maker that a protection obligation is owed to him. In the event that such a determination is made on evidence not currently available to the Tribunal it is possible that a non-refoulement obligation may arise. However, the Tribunal is not satisfied that there is sufficient evidence to make such a finding on this application.
The Tribunal notes the Applicant raised his claims to fear harm more generally on return to Myanmar as ‘another reason’ in the context of impediments to his removal. The Tribunal has considered those issues further below.
On the basis of the evidence before it, the Tribunal is not satisfied that an issue of
non-refoulement obligations arise with respect to the Applicant’s return to Myanmar. The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa, but that weight is not substantial both because of the Applicant’s voluntary return to Myanmar since coming to Australia, the country information provided and because there was insufficient material to support the elements of the claims.
Strength, nature and duration of ties
In considering whether to revoke the mandatory cancellation of the Applicant’s visa the Tribunal must consider the strength, nature and duration of the Applicant’s ties to Australia
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of
non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).The Applicant described his connection to Australia as follows:[146]
Australia is my country I call home, where I have my family and a place where I can have a better future. I truly apologise for taking the time that I have spent in Australia and the opportunities that been given to me for granted in my past. I am so excited and feel blessed if I am given the chance to repay my family and loved ones from the hurt I have caused and also to give back to the community. It will mean the world to me and my family, if I am given the chance to go back home to reunite with my family which I have not seen them since March due to Covid19 pandemic. I am really looking forward to showing them the changed man that I am today and include them in my bright future.
[146] A2, page 15.
The Applicant arrived in Australia when he was 15 and has lived in Australia for almost 12 years. He commenced offending when he was 18 years old.
The Applicant submitted a large number of third-party supporting statements including from family, friends and church members evidencing strong social connections to Australia.[147] These statements spoke of the Applicant’s connection to his family and their desire to remain together in Australia given their long separation prior to the Applicant’s arrival in Australia with his sister.
[147] See A2; R2, G40-G41, G43-G56.
The Respondent conceded that the Applicant has ties to Australia but contended that the Tribunal should not place significant weight on this factor given the Applicant commenced offending shortly after arriving in Australia.[148]
[148] R1, [76].
The Tribunal notes the Applicant commenced offending around three years after arriving in Australia, albeit with a relatively minor offence of disorderly conduct. The Tribunal considers that the Applicant did commence offending relatively shortly after he arrived in Australia. However, having regard to his young age at the time, the Tribunal does not place significant weight on this in the assessment of his ties to Australia.
While it appeared on the evidence that the Applicant has some remaining family in Myanmar, including a grandparent, aunt and his estranged father, his immediate family is in Australia.[149] The evidence indicated that there have been periods where due to the Applicant’s behaviour he has been estranged from his family in Australia, but he has since maintained consistent contact with them and has reconnected with them following the 2017 drug offences. Indeed, the evidence suggests that the Applicant’s issues associated with his early separation from his mother and his relocation to Australia to live with her and his stepfather as a teenager were an underlying cause of him commencing offending. The Applicant testified that he regrets the estrangement from his family caused by his drug use and offending and is seeking to make amends for this.
[149] Transcript, 21 October 2020, page 24.
The Tribunal accepts that the Applicant and his family have a close relationship and are committed to making a life in Australia. It was clear from his mother’s evidence that the family’s initial separation has taken a toll on the family and that they would suffer emotional hardship if his visa cancellation is not revoked. The Applicant’s mother and sister also testified that as they are now Australian citizens and as Myanmar does not allow dual citizenship they do not have the option of relocating with the Applicant if he is removed.
The Tribunal notes that the Applicant’s mother, stepfather and sister have made a number of return trips to Myanmar and the Tribunal considers that they would be able to continue to visit if the Applicant were removed. This would lessen the emotional hardship that they are likely to suffer from separation. However, the Tribunal accepts that their capacity to do so would depend on their financial circumstances and may also be impacted by COVID-19 travel restrictions (considered further below). The Tribunal also considers that the Applicant and his family would be able to maintain contact in other ways, such as by phone or videocalls.
The Tribunal accepts that the Applicant has held regular employment while in Australia, though this has been impacted by his drug use and later imprisonment. The Tribunal also accepts he has positive prospects for employment if released into the community including through assistance from the ReSet program. He has also been a member of the Burmese Catholic Community in Western Australia and has made a positive contribution through volunteering and engaging with the community.[150]
[150] See R2, G53 - G56, pages 248-251.
The Applicant submitted many supportive statements from family members, and friends. These speak to the community support for the Applicant and his rehabilitation. In addition, there was evidence that several people frequently visited the Applicant while he was in prison, evidencing the strength of his support network and community in Australia.[151]
[151] R2, G36.
The Tribunal accepts that the Applicant has strong family and social ties in Australia. The Tribunal also acknowledges that his family members and his close friends will suffer emotional hardship if he is removed.
Having regard to all of the Applicant’s circumstances, the Tribunal considers that his ties to Australia weigh in favour of revocation of the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant has been in regular employment while he has been in Australia neither the Applicant nor the Respondent made any submissions on this consideration and there was no evidence regarding the impact of non-revocation on business interests in Australia. The Tribunal finds that this consideration has no application in the present matter.
Accordingly, the Tribunal finds this consideration to be neutral in the Applicant’s case.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of the victims.
There is no evidence as to how victims of the Applicant’s offending would be impacted, and based on the material available, by a decision not to revoke cancellation of the Applicant’s visa. There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community of which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa.
Accordingly, the Tribunal finds this consideration to be neutral in the Applicant’s case.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider the:
(1)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.
As noted above, the Applicant raised concerns regarding his return to Myanmar both in the context of potential non-refoulement obligations and in the context of impediments if he is removed to Myanmar.
The Applicant contended that there are significant impediments if he is removed from Australia including: his lack of social supports due to his lack of family support in Myanmar including his long term separation from his father and his young age when he left that country, difficulty finding employment particularly having regard to his history of drug convictions and the social discrimination he would suffer in Myanmar as a result of his drug convictions and religious beliefs.
Of the circumstances facing the Applicant in Myanmar he contended:[152]
·He may face difficulties due to a lack of social support and social discrimination given his drug convictions in Australia.
·He has no work experience in Myanmar and may experience employment discrimination due to his drug convictions. This may impact his ability to establish himself and maintain basic living standards if returned to Myanmar.
·His family members are Australian citizens and as Myanmar does not allow dual citizenship they will be unable to relocate to Myanmar should they wish to support him there.
·The Applicant would not be able to access social welfare support for 36 months and would not be eligible for welfare while looking for a job.
·There are concerns for his safety as DFAT advises travellers to avoid some areas of the country due to conflict between armed groups and security forces.
[152] A1, [92]-[104].
In Submissions in Reply, the Applicant also contended that if he was still on parole on return to Myanmar he will be incarcerated until the full sentence is served. As noted earlier, there is nothing but anecdotal evidence before the Tribunal to support that contention and the Tribunal does to accept it.
The Respondent acknowledges that the Applicant would face some difficulty establishing himself in Myanmar but this would only be short term and would not preclude resettlement. He has engaged in employment and training in Australia which would improve his prospects of employment on return. There are no substantial language or cultural barriers given the Applicant lived in Myanmar for the first 15 years of his life. The Respondent also contended that the Applicant would have the same access to social, medical and economic support generally available to other citizens of that country.
With respect to the submissions regarding social security and welfare payments, it is clear that Direction no. 79 refers to the context of services available to citizens generally in the country to which the person is being returned. While this would not preclude the Tribunal from having regard to particular impediments the Applicant may face in that context, it does, in the Tribunal’s view mean that the lack of equivalent social welfare or other services in a country will not of itself amount to an impediment if removed.
The Tribunal notes that the Applicant lived in Myanmar until he was 15. Though the Applicant now speaks fluent English, his family members all speak Burmese and he is an active member of the Burmese Catholic community in Australia. As the Applicant largely grew up in Myanmar and was educated there until his mid-teens, the Tribunal considers that he is unlikely to face substantial language or cultural barriers upon returning to Myanmar. While the Tribunal accepts he has spent significant time in Australia and is accustomed to the environment in this country, the Tribunal notes he grew up in Myanmar and has visited the country at least twice since leaving.
The evidence of Dr Watts suggests that the Applicant does not suffer from any mental health issues and there is no evidence of any other health issues which might impede his return to Myanmar.
As discussed above, the Applicant raised a concern that he will face social ostracisation and discrimination, particularly in employment in Myanmar, due to his status as a convicted drug offender. The Applicant and his sister testified as to their belief the Applicant would suffer discrimination in Myanmar because of his offences. The Tribunal accepts that there is likely to be a social stigma and discrimination attached to a history of drug offending and that the Applicant may face some discrimination in social interaction and employment as a result. Further, as noted above, there is no country information or other independent evidence before the Tribunal to support a claim that the Applicant would suffer imprisonment or significant harm, and in particular physical harm, as a result of the stigma attached to his drug convictions.
Having regard to the evidence, the Tribunal finds that the Applicant would suffer some hardship including social stigma and potential employment discrimination as a result of his drug convictions if returned to Myanmar. Based on the country information available, the Tribunal also accepts that the Applicant may face a moderate level of social and official discrimination due to his Christian faith. The Tribunal accepts this may extend to discrimination in employment and may result is some social isolation from the non-Christian community in Myanmar.
On the evidence before the Tribunal it is likely the Applicant has some family remaining in Myanmar including his aunt with whom it appears his mother has some ongoing contact based on the family’s return to Myanmar for her wedding and an elderly grandfather.[153] However, the Tribunal also accepts that the Applicant will largely be without family support in Myanmar as his mother, sister and stepfather will remain in Australia. This will make it more difficult for him to reintegrate in Myanmar including in finding employment and establishing himself in suitable housing. This may also put at risk his efforts at rehabilitation and abstinence. In this regard the Tribunal considers that should the Applicant recommence illicit drug use in Myanmar the consequences for him would be significant, including potential imprisonment and exposure to a risk of the death penalty.
[153] Transcript, 21 October 2020, page 52.
On balance, the Tribunal finds that the Applicant faces impediments to removal which weigh in favour of revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
The Tribunal sought submissions on the impact, if any, the COVID-19 pandemic would have on the Applicant in the context of the matters before the Tribunal.
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to Myanmar as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to Myanmar. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] ‘[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides’.[154]
[154] See also Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002, [118].
The Applicant submitted that he may face a substantial period in immigration detention due to the current lack of international flights.[155] The Respondent accepted that this was the case but that the timeframe for removal is ‘not presently expected to be of any substantial duration’.[156]
[155] A3, [24]-[25].
[156] R1, [86]–[87].
The Tribunal accepts that current flight restrictions will result in the Applicant spending additional time in immigration detention pending his removal. The Tribunal also accepts that the prospect of further time in immigration detention may cause additional stress to the Applicant while he remains in detention. The Tribunal notes that this currently includes separation from his family. The Tribunal also accepts that public health responses to COVID-19 may impact the Applicant’s capacity to access services or seek employment on return to Myanmar and on his family’s capacity to visit him there. This may extend the time it takes the Applicant to resettle in Myanmar, increasing the stress of relocation.
This consideration weighs slightly in favour of revocation of the Cancellation Decision.
CONCLUSION
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction No 65, the same considerations apply to the exercise required by Direction No 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[157] where Justice Colvin noted at [40]:
There is no hierarchy of considerations expressed within the state of satisfaction required by s 501CA(4). Therefore, it would be contrary to s 501CA(4) to approach the matter on the basis that certain considerations were inherently less important in forming the state of satisfaction required by the Act.
[157] [2018] FCA 594; See also Minister for Home Affairs v HSKJ (2018) 266 FCR 591.
Looking at the first primary consideration, the protection of the Australian community,
the Tribunal has considered the nature and seriousness of the Applicant’s conduct and the risk to the Australian community should he reoffend. For the reasons set out above, the Tribunal finds the Applicant’s offending to be very serious. Likewise, the harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is very serious. However, the Tribunal has found that there is a low likelihood of him engaging in further criminal or other serious conduct. On balance, the Tribunal finds that this consideration weighs against the revocation of the cancellation of the Applicant’s visa, though less weight is given to this consideration given the low risk of the Applicant reoffending.
The Tribunal finds that the second primary consideration, the best interests of minor children, does not apply in this case and the Tribunal places no weight on this consideration.
With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against the revocation of the Cancellation Decision, however, the Tribunal considers in all the circumstances less weight should be given to this consideration.
In relation to the ‘other considerations’ identified in Direction No 79, the consideration of non-refoulement obligations weighs only slightly in favour of revoking the cancellation decision. The strength, nature and duration of the ties that the Applicant has to Australia weighs in favour of the revocation of the cancellation of the visa. The impediments to removal also weigh in favour of revocation of the cancellation decision. The other consideration of the impacts of COVID19 Pandemic weighs slightly in favour of revocation of the cancellation of the Applicant’s visa.
Both the impact on Australian businesses and the impact on victims is neutral in the Applicant’s case.
Having undertaken the weighing of the consideration for and against the revocation of the cancellation of the Applicant’s visa, the Tribunal finds that, while none of the considerations weighs particularly strongly, the considerations which weigh in favour of the revocation of the cancellation of the visa, outweigh the considerations which weigh against the revocation of the cancellation of the Applicant’s visa.
Accordingly, the Tribunal finds that there is another reason why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 12 August 2020 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 238 (two hundred and thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
.........[Sgd]...............................................................
Associate
Dated: 4 November 2020
Dates of hearing: 21 and 22 October 2020 Solicitors for the Applicant: Estrin Saul Lawyers Solicitors for the Respondent: Sparke Helmore Lawyers
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