GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4362

GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4362 (25 November 2021)

Division:GENERAL DIVISION

File Number:          2021/6233

Re:GPDZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:25 November 2021

Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 3 September 2021 not to revoke the mandatory cancellation of the Applicant's Permanent (Class BF) (subclass 111) visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Permanent (Class BF) (subclass 111) visa is revoked.

..........................SGD..............................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION- mandatory cancellation of visa- Class BF (Permanent) visa- where visa was cancelled under s 501 because applicant did not pass the character test- substantial criminal record- Ministerial Direction No. 90- primary considerations- protection of the Australian community- seriousness of offending and future risk- family violence- best interests of minor children in Australia- expectations of the Australian community- other considerations- international non-refoulment obligation- extent of impediments if removed- impact on victims- strength, nature and duration of ties to Australia- appropriate, fair and just consideration to be given to factors behind past criminal conduct- reviewable decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth): s 499, 500, 501, 501CA, 501E

CASES

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

25 November 2021

1.       The Applicant seeks review of the decision of the Respondent by the Delegate dated 3 September 2021 not to revoke the Permanent (Class BF) (subclass 111) visa (visa) cancellation decision made pursuant to section 501 of the Migration Act 1958 (Cth) (the Act).

FACTS

2.       The Applicant is a citizen of Turkey, was born on 23 September 1963, and came to Australia at 10 years of age with his parents. He is currently 58 years of age.

3.       The Applicant has a lengthy criminal history running to some 15 pages, although it is necessary to analyse that history in order to determine issues relating to seriousness of safety and risk of future offending amongst other relevant matters. Apart from the issue of the Applicant’s criminal history and its consequences, there are other relevant matters put forward by the Applicant, and which the Respondent has addressed in the hearing, including mental health issues suffered by the Applicant, abuse and trauma which have relevance to mental health issues, and the Applicant’s history of drug addiction from a very early age and which appears to be at the heart of his offending.

4.       The Applicant has some history of pursuing work in Australia as a painter and in other areas, however that history of work has largely been affected by his continuous drug use which was resort to cannabis and methamphetamine.

ISSUES

5. The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

6. The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

7. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

8. Section 501CA(4) provides that:

(4)       The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or          (ii) that there is another reason why the original decision should be revoked.

9.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

10. Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

11.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

12. Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

13. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(1)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter and/or remain in Australia. Being able to come 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; (paragraph 5.2(1));

(2)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; (paragraph 5.2(2));

(3)the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community; (paragraph  5.2(3));

(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age; (paragraph 5.2(4));

(5)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. (paragraph 5.2(5)).

14.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

15.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2); and

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

16.     These principles are, of course, dependent upon the facts and circumstances of each case.

17.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

18.     The Tribunal must also take into account other considerations insofar as they are relevant.

19.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:

i)   strength, nature and duration of ties to Australia; and

ii)  impact on Australian business interests.

THE CHARACTER TEST

20. As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

21. For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

22. In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

EXERCISING THE DISCRETION

23. In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

24.     Paragraph 8.1 of Direction No. 90 provides:

When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

25.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

(a)the nature and seriousness of the non-citizen's conduct to date; and

(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

26.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)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;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

27.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should  have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

28.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

29.     The Applicant’s offending history discloses offending from a young age and most of that offending, in the Tribunals view, discloses petty criminal activity including dishonesty, theft, use of illicit drugs, and more serious offences including common assault and occasions of threatening violence in public places to persons in circumstances where the members of the public observed that behaviour. There were offences of stalking and intimidation and a serious offence of stealing a motorbike, valued at approximately $6000.

30.     For the last offence of stealing a motorbike, the Applicant was sentenced to an effective term of 14 months imprisonment which engaged the operation of the Act.

31.     The Applicant has been given numerous chances in the past of rehabilitative sentences including probation and community-based orders. None of these sentences or orders appear to have had any salutary effect on stopping the Applicant’s continued criminal conduct.

32.     Apart from the offences in 2020, it cannot, however, be said that the Applicant’s offending realistically has escalated.

33.     In February 2017, the Applicant verbally abused bank staff and applied force by physically pushing staff in circumstances where his bank account had been suspended. It is unsurprising that someone in the Applicant’s circumstances may feel aggrieved by that behaviour but his conduct on two occasions within a week at that particular bank was quite inexcusable. On the second occasion the Applicant threw, in anger and frustration, a plastic card container which hit the wall and which was thrown in the direction but not at, a member of the public. This is very much an example of the sort of behaviour which typifies the Applicant’s ensuing criminal conduct.

34.     The Applicant was convicted whilst on a train brandishing a knife and threatening a member of the public who required him to stop smoking. On another occasion, after an altercation with a shop owner, the Applicant returned to the locked shop and threatened the shop owner, whilst at the same time brandishing a knife. On none of these occasions was it suggested, or has the Tribunal concluded, that the Applicant actually attempted to use physical violence to any person. Rather, it was the Applicant’s uncontrolled and threatening, angry behaviour which was central to his offensive conduct.

35.     The Applicant behaved in a rough and aggressive way to both his sister and his female friend, Ms F. Those witnesses who provided statements also gave evidence in these proceedings as well as the husband of the Applicant’s sister.

36.     The Tribunal is satisfied that the description of the events provided by those witnesses add some proper and comprehensible context to the otherwise bald statements provided within police reports. Their evidence illuminates the Applicant’s behaviour and on that account, the Tribunal forms the view that the Applicant is not ostensibly, nor was he on those occasions, a person of violent disposition. The behaviour suggests someone who has been in the past affected by drugs but who is, even in those circumstances, capable of controlling his aggressive behaviour to the extent of not perpetrating any real violence on members of the Australian public or indeed his family.

37.     All three witnesses speak well of the Applicant in terms of his ability to control himself and allegations of violent behaviour. None of those witnesses says that the Applicant was someone whom they actually feared on account of his behaviour.

38.     The entirety of the Applicant’s criminal conduct, the Tribunal finds, is related to his drug habit. Furthermore, on the evidence, the Tribunal finds that the Applicant has in the past, been able to control his drug taking and thereby eliminate that factor which it seems contributed to his criminal conduct.

39.     The Tribunal accepts that since incarceration and immigration detention, the Applicant has undertaken a variety of courses and has, according to his family, demonstrated a remarkable change which the Tribunal accepts, is both genuine and a real change in the Applicant’s attitude and behaviour.

40.     Analysed in this way, the Applicant’s entire criminal history, although lengthy, is of concern. It is, however, at the lower end of the scale of seriousness and certainly at the lower end of the scale of classification of violence. The Tribunal finds that since incarceration and criminal detention, on this occasion, there has been a real change to the Applicant’s behaviour through rehabilitative processes.

41.     Although it is impossible to predict the likelihood of future conduct, in this case it is more likely that the Applicant will behave more responsibly and he is at a low risk, in the Tribunal’s opinion, of re-offending. That is so also because of his present realisation of the likelihood of deportation, although he had been warned of this possibility in the past.

42.     Support for rehabilitation of the Applicant is to be found in the fact that drug tests conducted whilst both in custody and immigration detention demonstrate that the Applicant has been on those occasions, free from drugs. That lends valuable support to the proposition that the Applicant has both undergone real rehabilitation and is, therefore, less likely to offend in the future.

43.     Furthermore, the Tribunal accepts the appropriately professional and balanced report of the psychologist, Mr J, as to the causes which relate to the Applicant’s past offending conduct. The Tribunal is of the view, in accepting that opinion, that allowance must fairly and properly be made for those factors which contributed, so the Tribunal finds, to the Applicant’s offending conduct. That is to say, the Tribunal considers that the Applicant should be regarded as less criminally responsible on account of those factors. Those factors must be weighed together with all other matters in reducing the weight to be given to the extent of the Applicant’s criminal conduct and taken into account in the Applicant’s favour when assessing the risk of future offending.

44.     The Tribunal regards this consideration, therefore, as weighing against the Applicant but because of those factors referred to, and in particular the mitigating factor of reduction of criminal responsibility, this consideration, overall, weighs somewhat but not strongly against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

45.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

46.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.

47.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

48.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

49.     There are two incidents that relate to this consideration, both of which involve the Applicant’s sister. On one occasion, during a time when the Applicant had been admitted to hospital for a serious heart attack and during which time he was affected by both illicit drugs and hospital ordered medication, the Applicant became agitated and aggressive according to his sister, demanding to be released and be taken home by his family. During the course of his conduct, it is alleged that the Applicant perpetrated family violence on his sister, although having heard the sister’s evidence in this case, that conduct was both slight, attributable to the medication both legal and otherwise that the Applicant had taken and not, in the sister’s view, in any way serious or threatening. However, such conduct may be properly regarded objectively as threatening conduct.

50.     The second occasion occurred also about the same time when the Applicant presented at his sister’s apartment and demanded entry to the apartment. He again was agitated and damage was done to a balcony door.

51.     On neither occasion, the Tribunal accepts, was the Applicant’s sister actually scared or frightened of her brother. In fact, both the sister and Ms F have said, which the Tribunal accepts, that they have never actually been put in fear of the Applicant’s conduct to them.

52.     Mention should also be made of two occasions when the Applicant behaved in a physically violent manner to Ms F, by grabbing her hair at the place where they resided in Randwick, Sydney, and on another occasion when they together visited the dental hospital and the appointment was rescheduled. On that last occasion, the Applicant became angry and agitated and it appears that that anger was directed at Ms F although objectively from the circumstances as reported by the police, the Applicant’s behaviour may have been regarded as family violence, Ms F swore in evidence that she did not regard the behaviour as particularly worrying. The Tribunal is prepared to accept her evidence of this topic.

53.     Although these two last matters against Ms F do not conform to the definition of family violence, they have been referred to in Primary Consideration 1, dealing with the Applicant’s offending behaviour.

54.     On this topic, the Tribunal is satisfied that there is limited evidence of family violence against the Applicant’s sister. The dimensions of that violence is limited and unexceptionable to the extent that it is family violence. It is of course to be abhorred but in the circumstances of this case, it figures little in terms of degree or prominence and this consideration carries limited weight against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

55.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

56.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

57.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

58.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

59.     There is no evidence in this case to engage the operation of this consideration.

Primary Consideration 4 – Expectations of the Australian community

60.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

61.     Paragraph 8.4(2) also provides that visa cancellation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

62.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

63.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

64.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

65.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J.

66.     The Australian community would no doubt be concerned about the extent of the Applicant’s continuous poor conduct which has led to numerous convictions. Furthermore, what is particularly concerning is the Applicant’s display of threatening violence in public, amongst his other offensive behaviour. Although allowance should be made for the period the Applicant has lived in Australia and other extenuating circumstances, in weighing this consideration, nonetheless, it must weigh, in the Tribunal’s view, properly against the Applicant in the overall consideration of this matter.

OTHER CONSIDERATIONS

67.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia; and

(ii)impact on Australian business interests.

International non-refoulement obligations

68.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

69.     The Applicant’s representative made submissions to the effect that the Applicant would be discriminated against in terms of available medical and mental health assistance, amongst other things, should the Applicant be returned to Turkey. It was further submitted that the non-refoulement obligations of Australia would be engaged in those circumstances and the Tribunal was required to consider that matter.

70.     In the Tribunal’s opinion, those matters are properly the subject of consideration as impediments to removal under that specific consideration. There is no proper or sufficient evidence before the Tribunal in this matter which engages this specific particular consideration.

Extent of impediments if removed

71.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

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.

72.     The Respondent accepts that the Applicant will face impediments should he be removed from Australia. The Tribunal accepts this submission which is a submission promoted by the Applicant himself.

73.     The Applicant is 58 years of age and has lived in Australia for 48 years and has had no formal connection with his country of birth, although his sister has travelled to Turkey and speaks the language. The Applicant has had contact relatively frequently with his sister during the period while he has lived in Australia.

74.     The Applicant has not worked in Australia in recent times and has no formal qualifications.

75.     On the evidence, it appears that the Applicant would be able to access some form of Minimum Resources Scheme, a system of social assistance in Turkey, although it appears it is not as comprehensive as Australia’s Social Security system.

76.     It is accepted by the Tribunal that the Applicant has mental health issues, including depression, and there is some evidence which the Tribunal accepts that Turkey is able to provide some form of assistance, in this regard, in the form of a National Mental Health Action Plan implemented in 2011. The Respondent accepts that the level of health care may be of a standard less than that of Australia although on the evidence, the Applicant would still be able to access that scheme as a Turkish citizen.

77.     It is of particular relevance, however, that there will no doubt likely be a language barrier between the Applicant and those who would render him such mental health assistance. That evidence is based, in part, on evidence which the Tribunal accepts given by the psychologist, Mr J. The Tribunal further accepts the opinion offered by Mr J that the likely language barrier would make proper treatment of mental health issues difficult for the Applicant should he be returned to Turkey.

78.     The Tribunal is of the view that the Applicant has some facility with the Turkish language although the level is relatively basic. This view has been formed by reference to the evidence of the Applicant’s sister which the Tribunal accepts in that regard.

79.     On the evidence, the Tribunal considers that the Applicant’s sister and her husband would be able to render some limited assistance to the Applicant should he be returned to Turkey, although both the sister and brother-in-law said that financial assistance would be virtually impossible. The Tribunal does not accept that level of impossibility.

80.     Furthermore, the Tribunal is of the view that because of the time the Applicant has spent in Australia, it would be very difficult, at least initially, for the Applicant to resettle in a new country, in this case, Turkey. He has not lived there for 48 years and would, the Tribunal infers, experience difficulties resettling in terms of emotional, financial and economic considerations.

81.     A submission was made by the Applicant’s representative that the difficulties in the Applicant accessing, in particular, medical and mental health facilities, was a feature which enlivened non-refoulement obligations by Australia. Although the Tribunal does not accept that non-refoulement consideration is enlivened on the evidence in this case, nonetheless, that submission is accepted by the Tribunal as a factor to be taken into account in this consideration which relates to the impediments concerning removal of the Applicant from Australia.

82.     Although there are family members in Turkey described by the Applicant’s sister as being two cousins, there has been relatively little contact between those persons and the Applicant and his family in Australia. Furthermore, removal of the Applicant from Australia would be, the Tribunal finds, distressing both to his family members who live in Australia and his friends, including Ms F. Likewise, the Applicant would, the Tribunal concludes, find it emotionally stressful to be removed from those persons with whom he has had contact over the many years as described in the evidence.

83.     This consideration, therefore overall, weighs in the Applicant’s favour and particular weight is given to that aspect referred to above of the Applicant’s ability to access suitable and effective mental health assistance.

Impact on victims

84.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

85.     No specific submissions were directed by either party to this consideration, except insofar as there was evidence from the Applicant’s sister, brother-in-law and Ms F. That evidence, in respect of all three persons who might broadly be regarded as victims, is a positive attitude to the Applicant, acceptance expressly or impliedly that he has undergone rehabilitation and that all three persons expressly or impliedly now have no concerns in relation to the Applicant’s future conduct, particularly in respect of their own safety.

86.     The Tribunal has some reservations about the evidence given by Ms F in relation to the Applicant’s past conduct to her. However, the Tribunal is satisfied to accept the basic tenor of her evidence, in this regard, having heard her oral evidence.

87.     The Tribunal found the evidence of the Applicant’s sister and brother-in-law particularly impressive and accepts that evidence in its entirety.

88.     All three witnesses have a close association with the Applicant and although the Tribunal accepts the evidence of those witnesses because of the relationship with the Applicant in each case, overall, this consideration carries limited weight in the Applicant’s favour.

Links to the Australian community

89.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

The strength, nature and duration of ties to Australia (Paragraph 9.4.1)

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

90.     Some of these matters have been referred to above including the presence in Australia of the Applicant’s immediate family, his sister, brother-in-law and a friend, Ms F, with whom he has a longstanding relationship. The Tribunal, however, recognises that there is some ability to mitigate this loss should the Applicant be removed via electronic communication. This is, the Tribunal considers, a poor substitute for the sort of contact envisaged by the Applicant and his sister should he remain in Australia.

91.     Even though the Applicant has spent periods in custody during the past 48 years, the Tribunal accepts that the Applicant has had meaningful personal contact with his sister and her husband and this is a substantial link to Australia, in the Tribunal’s opinion. The Applicant also has a strong connection, the Tribunal accepts, in his friendship with Ms F and that that relationship, although not now an emotional relationship, is nonetheless powerful and considerable in the connection between the Applicant and Ms F.

92.     Although the Respondent submits that there has been considerable cost to the Australian community by virtue of the Applicant’s offending in terms of court costs and law-related matters, nonetheless, in the Tribunal’s opinion, this does not significantly diminish the power of this consideration in the Applicant’s favour.

93.     The Applicant’s legal representative submitted that Australia owed the Applicant a duty of care and had responsibility for the Applicant, particularly in this case, where it was submitted the Applicant had been abused sexually and where a State Government Authority had been responsible in the circumstances for the Applicant’s care and safety.

94.     The Tribunal is prepared to accept evidence which suggests that the Applicant was abused at a young age and indeed has referred to this evidence which it accepts as a feature which diminishes the criminal responsibility of the Applicant for the entirety of his offending. This is in accordance with the report of the psychologist, Mr J. The Tribunal is not, however, prepared to accept that that submission adds a separate ingredient to the consideration of any other of the considerations required to be assessed pursuant to Direction No. 90.

95.     Assessment of the relevant evidence and factors relating to this consideration leads to the conclusion that this consideration weighs in the Applicant’s favour.

Impact on Australian business interests (Paragraph 9.4.2)

96.     Direction No. 90 at paragraphs 9.4.2 provides:

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

97.     There is no evidence to indicate that this consideration is relevant to this review.

CONCLUSION

98.     Despite the Applicant’s considerable criminal history, the seriousness of which has been analysed above, there are compelling reasons which lead to the conclusion that there is another reason why this decision should be overturned. Those factors include the Applicant’s lengthy life experienced in Australia, of some 48 years, and more importantly, the appropriate, fair and just consideration given to the abuse which he suffered and which the Tribunal has concluded was, and has continued to be, the factor which drove him to commit all his criminal offences.

99.     These factors neutralise all those matters which the Respondent has referred to in seeking to maintain the non-revocation of the Applicant’s visa cancellation

100.    The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 3 September 2021 not to revoke the mandatory cancellation of the Applicant’s Permanent (Class BF) (subclass 111) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Permanent (Class BF) (subclass 111) visa is revoked.

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

...............................SGD.........................................

Associate

Dated: 25 November 2021

Date of hearing:	17 November 2021
Solicitors for the Applicant:	Mr R Turner, Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Mr S Valliappan, Minter Ellison