Gutierrez Martinez and Minister for Home Affairs (Migration)
[2019] AATA 955
•20 May 2019
Gutierrez Martinez and Minister for Home Affairs (Migration) [2019] AATA 955 (20 May 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1111
Re:Cesar Gutierrez Martinez
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member C Puplick AM
Date:20 May 2019
Place:Sydney
The Delegate’s reviewable decision of 22 February 2019 is set aside, and in substitution the 31 August 2017 decision to cancel the applicant’s Class BO, Subclass 115 (Remaining Relative) visa is revoked on the basis that there is “another reason” to do so.
..............................[sgd].................................
Senior Member C Puplick AM
CATCHWORDS
MIGRATION – whether to revoke the mandatory cancellation of a visa – applicant does not pass the character test – other reason to revoke cancellation – Ministerial Direction No. 79 – protection of the Australian community – risk of reoffending – expectation of the Australian community – best interests of minor children – when to consider non-refoulement obligations – Honduras – impediments to removal – genuine fear of consequences of return – strength of ties – impact on victims – domestic violence – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501 and 501CA
Crimes Act 1900 (NSW) s 61AA
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ahori v Minister for Immigration and Border Protection [2017] AATA 601
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68
CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
DFW18 v Minister for Home Affairs [2019] FCA 599
DKXY v Minister for Home Affairs [2019] FCA 495
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Mendoza v Minister for Immigration and Border Protection [2018] AATA 686
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Murphy and Minister for Immigration and Border Protection [2018] AATA 750
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Omar v Minister for Home Affairs [2019] FCA 279
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Sharma v Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Williams v Minister for Immigration and Border Protection [2014] FCA 674YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Honduras', Smartraveller.gov.au (Web Page, 27 March 2019) < align="left">Honduras | Data', The World Bank Data (Web Page) < Direction 79
Ministerial Direction 65
Terrence Heath: “America’s Border Crisis of Conscience”, 22 July 2014
The Association for a More Just Society' (Web Page) < States Department of State Country Reports on Human Rights Practice 2018US Department of the Treasury Press Centre: Treasury Sanctions Latin American Criminal Organisations, 10/11/2012.
REASONS FOR DECISION
Senior Member C Puplick AM
22 May 2019
Mr Cesar Roberto Guiterrez Martinez (the Applicant) appeals to this Tribunal to review a decision made by a Delegate of the Minister for Home Affairs (the Respondent), on 22 February 2019, not to revoke the mandatory cancellation of the Applicant’s visa under the provisions of the Migration Act 1958 (Cth) (the Act).
LEGISLATIVE FRAMEWORK
The Act provides (section 501(3A)) that the Minister must cancel a person’s visa where that person has failed the character test set out in section 501(6) of the Act. That test is automatically failed if the person has a “substantial criminal record” (s 501(6)(a)) which itself is defined in the Act (section 501(7)) as including where “the person has been sentenced to a term of imprisonment for 12 months or more” (s 501(7)(c)).
It is not in dispute that the Applicant fails the character test as he has been so sentenced.
As a result, the cancellation of his visa was mandatory and there was no option open to the Minister to do otherwise.
However, section 501CA(4) provides that such a mandatory cancellation may be revoked.
(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.
Since the Applicant clearly does not pass the character test, the issue for the Tribunal (in the shoes of the decision-maker) is whether or not there exists “another reason” why the cancellation decision should be revoked.
In making such a decision, the Tribunal is bound to have regard to guidance on this matter which has been provided by a statement of ministerial (government) policy which has been issued under section 499 of the Act:
(1)The Minister may give written directions to a person or body having functions or powers under this Act (other than the panel established under section 199A) if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Such directions have been given via Ministerial Direction 79 (MD79) which came into effect on 28 February 2019.[1]
[1] The Direction itself was made on 20 December 2018.
It should be noted that the original decision made by the Minister’s delegate (22 February 2019) was made when Ministerial Direction 65 (MD65) was still in effect. MD65 had come into effect on 23 December 2014 and remained effective until 27 February 2019.
Although the Delegate’s decision was made under MD65, the Tribunal must consider it under the provisions of MD79 as it is obliged to consider matters as they are at the time of the Tribunal’s hearing rather than at the date of the reviewable decision.[2]
[2] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at page 11; AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Because some of the changes made between MD65 and MD79 are relevant to the Tribunal’s considerations in this particular case, the Tribunal has set out some of the revised sections of MD79 highlighting the changes from the previous Direction.
The first of these occurs in Paragraph 6.3 which states the “Principles” underlying the Direction. Subclause (3) now reads:[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
minors,the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.[3] Words in bold indicate text added to and strike through indicates words deleted from MD65.
The second relevant change is in Part C, section 13 of the Direction, which is headed “Primary consideration – revocation requests”.
13.1.1 The nature and seriousness of the conduct
(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
minors,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 noncitizen'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;
The relevance in this instance is to the effect that the Direction places particular emphasis upon the need to protect women and children and requires the Tribunal to have particular regard to cases where women have been the victims of crimes of violence, regardless of any decisions of, or penalties imposed by, the courts.
THE APPLICANT’S VISA HISTORY
The Applicant arrived in Australia on 26 March 2003 holding a Remaining Relative (Subclass 115) visa. His mother and sister arrived with him at the same time, all of them having been sponsored by a number of his uncles and aunts who the Applicant said were Australian citizens[4] and who have been resident in Australia for approximately 38 years.
[4] The Applicant’s Personal Circumstances Form lists them as citizens of Honduras. Tribunal G Documents at [71].
On 19 September 2017 the Department advised the Applicant that his visa had been cancelled and invited him to make representations as to why this decision should be revoked.
Such representations were made by the Applicant on 29 September 2017 but on 22 February 2019 the Minister’s delegate made a decision not to revoke the cancellation. That decision was appealed to this Tribunal on 27 February 2019 and heard on 6 May 2019. The Applicant was assisted by an interpreter in the Spanish language although his command of English was more than sufficient for him to follow proceedings and when he chose, to reply to questions in English.
Under the provisions of section 500(6L)(c) of the Act a decision must be made within a prescribed period of 84 days from the date upon which the Applicant was notified of the decision under review. In this instance that date is 22 May 2019.
THE APPLICANT’S PERSONAL HISTORY
The Applicant was born in February 1987 and is a citizen of Honduras.
His claimed personal situation and history is an exceptionally complex and challenging one. He asserts:
“I was on the right track for a long time but I have trouble with my family. My mother has anger issues. She has hit me from when I was a young child. My current incarceration is because of an argument I had at home with my mother and relatives. I argued with my family because my sister is in a sexual relationship with my uncle. She has two children, my nephews, who are my uncle’s children. My Mum told me my uncle is not my uncle but he is my brother and he is my twin. We do look very much alike. I am also not sure whether my mother is my biological mother or whether my sister is really my sister. My grandmother says my uncle is her son, so if he is my twin brother then my grandmother is really my mother.
My aunts and uncles won’t tell me about my family. I am reasonably sure my sister was born to the woman I currently consider to be my mother – the mother who hurts me. My mother was raped – maybe our father is the rapist.”
In further evidence before the Tribunal, the following information was given under oath (but not subject to independent verification) by the Applicant:
(a)His mother is now elderly and frail. She lives in a two bedroom unit in Carramar which she shares with a man (both paying rent) and where she has care and effective custody of the Applicant’s nephews aged 3 and 2 years;
(b)His sister lives with her boyfriend (also in Carramar) but does not take immediate care of her two children and he does not know the identity of the father. In any case the father of these two children has no role in their care or support;
(c)Although he has numerous uncles, aunts and cousins in Australia they do not appear to be providing support either for him or his mother;
(d)His step-father and his grandfather appear to live somewhere else – unspecified – and again do not apparently play any constructive role in his life;
(e)At times when the Applicant was “homeless” or prevented from living in the family home due to the operations of an Apprehended Violence Order, he either lived on the streets or couch-surfed or stayed with friends who were not related to him.
The Applicant also told the Tribunal and made submissions to the effect that when living in Honduras he had been pressured into joining one of the criminal gangs for which that country is notorious (see below). He described his role, he then being aged 15 to 16, as being to collect money, run messages and act as a lookout.
He said that he started smoking and sniffing glue at age 12. He had a period of some 6 to 7 years without using drugs but then, at about age 19 years graduated to the use of “weed”, “crack”, “ice” and ecstasy.[5] He admits to having had a serious drug addiction problem but told the Tribunal that he was now “clean”, largely due to his prison experience and had even stopped smoking cigarettes.[6]
[5] Marijuana/cannabis; cocaine; methamphetamine; methylenedioxymethamphetamine (MDMA).
[6] Cigarettes also banned in NSW correctional facilities.
The Applicant has held a series of causal jobs (working with scrap metal, doing form work on construction sites) but has not been in the productive workforce since about 2013. He suffered some form of strain/injury which prevents him from lifting heavy objects. He has been in receipt of the Newstart Allowance from Centrelink.
THE APPLICANT’S CRIMINAL HISTORY
The Applicant has a long criminal history which began in November 2006 (just three years after his arrival in Australia) when he was convicted of “robbery in company” and given a sentence of periodic detention for one year and 51 weeks. It appears that the victim was an “older” person who was robbed after they withdrew money from an ATM and in the process was “hit” by the Applicant.[7]
[7] Oral evidence of the Applicant at Tribunal hearing. G Documents at [32].
In all the Applicant has some 42 offences listed against him and has appeared in court 21 times. The largest number of these offences relate to the possession or cultivation of prohibited drugs. He has received s. 9 bonds on at least nine occasions and also been subject to an Apprehended Violence (domestic violence) order.
On 1 December 2016 the Applicant appeared before the Fairfield Local Court on charges of common assault (domestic violence) and assaulting a police officer in the execution of duty. These offences took place on 10 October 2016 and the victim of the assault was the Applicant’s sister.[8] He was convicted but given a section 9 bond for a 12 month period.[9]
[8] Respondent’s Evidence at [72]-[75].
[9] G Documents at [30].
On 21 July 2017 the Applicant was again before the Fairfield Local Court on exactly the same charges, common assault (domestic violence) and assaulting police. The former was on a call-up from the 1 December 2016 sentence as a result of the breach of the section 9 bond and the latter related to a further incident on 15 January 2017.[10]
[10] Respondent’s Evidence at [282]-[287].
On this occasion the Applicant was sentenced to terms of imprisonment of 12 and 18 months respectively for the common assault (on call-up) and assaulting police. In his sentencing remarks the Magistrate commented that the Applicant should have been sent to jail for the 2016 offence not given a bond.[11] The Applicant appealed the severity of the sentence but this appeal was dismissed and the sentence confirmed.[12]
[11] G Documents at [40].
[12] Ibid at [28], [42]-[43].
The Respondent in their Statement of Facts, Issues and Contentions (at 27) make something of this comment by the Sentencing Magistrate regarding the perceived leniency of the initial sentence imposed on the Applicant.
The Tribunal does not accept this. Judicial minds may differ about the appropriateness of sentences, but they are imposed by the judicial officers who hear the individual cases and hear the specific evidence in each case. In the absence of any information, details about, or transcript of, the initial sentencing, it is impossible to know what factors the first Magistrate took into account – whether or not s/he accepted the differing version of events given by the Applicant as distinct from the Police report, the extent of remorse shown by the Applicant or any other relevant factors. Obviously the sentence was what the judicial officer in question thought appropriate on the evidence before him/her.
Indeed, it should be noted that on appeal the sentence of Magistrate Bugden was varied by Appeal Judge Bennett SC who, while confirming the head sentence actually reduced the non-parole period from 12 months to nine months.[13]
[13] Ibid at [43].
Regardless of these considerations as to sentencing however, the Tribunal recognises that MD79 requires it to have regard to the seriousness of crimes against women “regardless of the sentence imposed.”[14]
[14] Ministerial Direction 79 at 13.1.1 (b).
It is, however, necessary to say something about each of the offences for which the Applicant received a custodial sentence, noting that the Applicant pleaded guilty on each occasion. This is not in order to “go behind” or challenge the court’s findings in its sentencing decision(s), which itself is impermissible on the part of the Tribunal,[15] but rather to seek guidance in its later determination of the potential risk of the Applicant reoffending and thus posing a risk to the Australian community. It is also not inappropriate to consider issues related to why an applicant may have entered a guilty plea if this has any relevance to, or assists in, the decision-making process.[16]
[15] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78].
[16] Minister for Home Affairs v Sharma [2019] FCA 597 at [24]-[26] per Anastassiou J.
The incident in October 2016 took place in the (then) family home and according to the Police Statement[17] involved the Applicant slapping his sister, “pushing her face” causing her to fall to the floor, pulling her hair and grabbing her by the throat. The Police Statement reports that the cause of this assault was that his sister, who had recently returned from hospital after a Caesarean section delivery of her younger child, was unable to stop that child crying and that this disturbed the Applicant sufficient to precipitate this act of violence. The report also states that the 13 day old child was in the room at the time and the other child may well have been in the house.
[17] Respondent’s Evidence at [72]-[75].
The Applicant reports the incident differently. He says that he intervened with his sister because she was neglectful of the child. The child was crying because the child needed a nappy change and his mother was unresponsive to the child’s distress. He admitted to assaulting his sister and also reported that on the morning in question he had been smoking “ice”.
The “assault police” charge resulted from the Applicant attempting to leave the premises by his bedroom window, being pulled back from there by a police officer and when told to “Get on the ground” replying “Don’t touch me”. The Police report continues:
“A physical struggle between Constable [M] and the accused has commenced as the police officer attempted to effect the arrest. The accused continued to struggle and thrash around violently until additional police entered the bedroom. The accused was handcuffed, cautioned and placed in the rear of a police caged vehicle.”[18]
[18] Ibid at [74].
The second incident occurred on 15 January 2017. The setting was again the (then) family home. Following the previous incident the Police had taken out an Apprehended Violence Order (AVO) against the Applicant on 14 October 2016, with effect for 12 months. The AVO prevented the Applicant from entering his home, but he did so and in the process attempted to remove a television set. On this occasion there was a struggle of some sort with the Applicant’s mother which resulted in the police being called.
When they arrived, according to the Police Report, the Applicant was in his bedroom, and, while initially hesitant to come out, did so and was “escorted into the lounge room.” Thereupon:
“Using both hands the accused has pushed Constable [W] on the left upper arm and ran through the front door where the accused had attempted to close the door. The wooden door connected with the left arm of Constable [O] causing two small laceration and bruising to the inner arm.
The accused has released his hand from the door; Constable [W] grabbed the accused by the shirt. The accused pulled back causing his shirt to come off. Constable [W] stumbled down two flights of stairs grappling with the accused, in attempts to apprehend him. The accused has escaped this grip and ran down one flight of stair and out the main door. During this altercation, Constable [W] sustained a laceration to his right forearm.
A foot pursuit ensued with the accused jumping two fences in attempts to avoid police. The accused attempted to throw a trolley and other items found on the side of the road at police during the foot pursuit. Police caught up with the accused where he surrendered and proceeded to lay on the floor before being handcuffed.”[19]
[19] Ibid at [283]-[285].
Again the Applicant has a different understanding of this matter. In the first instance he claims that he was invited back into the home by his family. It was his normal place of residence and the AVO prohibiting his entry was taken out by the Police and not by his family. He claims that one reason for returning to the home was to give money to his mother for her support. He claims that the television in question, which he was attempting to take off its stand was his. He does not deny the nature of the confrontation with the Police but does not regard it as being an assault.
It is against this background that the Tribunal must consider if there is “another reason” for the cancellation decision to be revoked.
MINISTERIAL DIRECTION 79: STATUS
Ministerial Direction 79 became operational on 28 February 2019 and follows a series of such Directions dating back to 1999.[20] The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the Tribunal into jurisdictional error.
[34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
[35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[21]
[20] Direction 17 (1999); Direction 21 (2001); Direction 41 (2009); Direction 55 (2012); Direction 65 (2014).
[21] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.
However this is not entirely a black and white or automatic process.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[22]
[22] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420. This statement was repeated by the Federal Court in Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at 651-652. See also Frank J at [642] and Deane J at 646.
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[23]
[23] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 640.
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[24]
[24] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[25]
[25] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at 28.
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[26]
[26] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
A decision by Senior Member P W Taylor SC in Aciek,[27] states the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal as follows:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[27] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
By contrast a decision of the Full Federal Court in Bochenski outlines a far more restrictive approach to the Tribunal’s discretion:
[65] It should be noted that directions under s 499(1) are confined to written directions, whereas directions under s 496(1A) are not so confined. Further, written directions under s 499(1) are required to be tabled in Parliament: s 499(3). It follows that directions under s 499(1) are both public and formal, as well as clearly binding on delegates and Tribunal members as an overt fetter on discretion.[28]
[28] Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68.
MINISTERIAL DIRECTION 79: PROVISIONS
Direction 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 of the Direction.
Guided by these Principles, the decision-maker must take into account the “primary considerations” in Part C of Direction 79, in deciding whether to revoke a mandatory cancellation.
The primary considerations are listed as:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account “other considerations” some of which may be relevant and others potentially not. These 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; and
(e)extent of impediments if removed.
DISCUSSION
Primary Considerations
Protection of the Australian Community
Section 13.1.2 of the Direction is also in a form somewhat different from that in the previous Direction. It provides specifically that:
(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).
Section 13.1.1 of the Direction (see paragraph 13 above) sets out a total of nine factors, which should be taken into account when assessing the nature and seriousness of the offence. In this instance the relevant factors include (inter alia):
·Violent crimes are to be regarded as very serious
·Crimes committed against women (or children) are to be viewed as being very serious regardless of the sentence imposed by the courts
·Crimes committed against vulnerable people “or government representatives or officials due to the position they hold” are serious
·The sentences imposed by the courts
·The frequency of the offences and any trend of increasing seriousness.
In relation to this particular case, the Tribunal has to take note of the fact that the victim in the domestic violence offence was a woman and that the assault on police is an assault on “government representatives.”
It is hard to assess how “violent” crimes are in the absence of relevant evidence. What may appear prima facie as “violent” may appear less so when all the evidence is taken into account. The extent to which a slap is characterised as violent may vary between those which are intended to cause serious hurt or harm, or where it results from an outburst of anger, compared for example, with a state-sanctioned slap administered to a child as a form of (loving) parental “reasonable chastisement”.[29]
[29] See Crimes Act 1900 (NSW) s. 61AA (Defence of lawful correction).
Similarly, an assault on Police may vary from a mere struggle to resist arrest as appears to be the case in the October 2016 incident (see Police report quoted above) to a genuine attempt to cause hurt, harm or injury to an officer going about their ordinary duties. However the Tribunal does accept the Sentencing Magistrate’s stricture that, “Any assault on police is serious.”[30]
[30] G Documents at [38].
Domestic violence offences must always be taken seriously. In Mendoza this Tribunal said:
“The Australian community, rightly, professes zero tolerance for violence against women, there is zero tolerance for domestic violence perpetrated against any women, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.”[31]
[31] Mendoza v Minister for Immigration and Border Protection [2018] AATA 686 at [48]. See also Ahori v Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Sharma v Minister for Immigration and Border Protection(Citizenship) [2015] AATA 608 at [37].
The Applicant also has a long and sorry criminal record, the majority of offences being connected with his problems with drugs or else with his habit of riding his bicycle without lights or helmet. His offences have been frequent in the period from 2006 to 2017 although they do not show a discernible pattern of increasing seriousness.
What counts against the Applicant, however, is his lack of co-operation with the authorities administering the conditions of his bonds, which, as noted above, have been numerous. There are repeated reports from Community Corrections which show the Applicant to have either failed to meet the conditions of his bond(s) or to fail to co-operate with the authorities or to participate fully in programmes which were designed to assist with his drug offending. He did participate in the EQUIPS Foundation programme (although only on a “borderline” level) but did not engage with Drug Arm as part of the terms and conditions of his bond.[32]
[32] Respondent’s Evidence at [106]-[115].
The Applicant also does appear to have a limited appreciation of the nature of his extensive offending record, for example in his Personal Circumstances Form submitted to the Department on 16 September 2017 he referred to the October 2016 incident as “my first time in trauble (sic)”[33] when clearly this was not the case. Nor does he appear to appreciate the need to deal more systematically with his drug problems[34], although he claims now to have stopped using. He refers occasionally to having “mental health issues” but again has not sought professional treatment and indeed, on one occasion when prescribed Avanza to manage his depression, he stopped taking the medication.
[33] G Documents at [73]. At [62] he states that it was “my second time I’ve been in trouble.”
[34] Before the Fairfield Court on 21 July 2017 his lawyer made comments to the effect that the Applicant had unresolved drug and alcohol problems and “definitely needs some help.” G Documents at [35].
On the other hand, it does not appear to the Tribunal that there is any appreciable risk of the Applicant reoffending, “taking into account available information and evidence on the risk”, at least in terms of committing any further acts of domestic violence. The Tribunal accepts that the incidents involving members of his family were one-off matters and that the Applicant does not have a record of otherwise acting violently towards other members of the community.
It is clear that the Applicant has problems dealing with the Police. He sees them as inherently hostile towards him. He reports that they frequently stop and search him, he says for no reason and he regards their charging him with offences related to the way he rides his bicycle as unfair and discriminatory. It is likely that any further interactions between the Applicant and the Police will be coloured by these perceptions on his part.
Best Interests of Minor Children
The Tribunal accepts that the Applicant has a close avuncular relationship with his nephews now aged 3 and 2 years. Their circumstances attract some degree of sympathy from the Tribunal if, as the Applicant alleges, they live with their ailing grandmother (and another unrelated adult) in a two bedroom unit without obvious or direct support from either of their biological parents.
The Applicant has not been able to provide significant financial support for them as his only income is the Newstart Allowance and since July 2017 has either been in custodial care or immigration detention.
The Direction once again provides a list of some 8 factors which a decision-maker needs to take into account when assessing this claim. In this instance it is unclear exactly what sort of on-going supportive role the Applicant could play in the lives of his two small nephews nor the extent to which he would be able to provide financial support and assistance. There is also no evidence of the impact which his absence might have upon the children who have obviously had limited contact with him to date, although he says they have visited him in the Villawood Detention Centre on a number of occasions (being brought there by their grandmother).
Nevertheless, despite the fact that the children are receiving some form of “parental” care from their grandmother, the Tribunal accepts that the Applicant is deeply committed to the welfare of his nephews, that he loves them and wants to provide a male role-model for them (there being no other males involved in their care and custody) and to try and guide them in a positive fashion.
The Tribunal notes that the Delegate, in their original decision, concluded that the best interests of the minor children favoured revocation of the visa cancellation.[35]
[35] G Documents at [19].
Expectations of the Australian Community
Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
Section 13.3 of MD79 establishes the tests to be applied to make a determination of what the expectations of the Australian community might be in relation to applications such as this. It states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The Government’s views are, in large part, set out in the Principles which underpin the Ministerial Direction and which are articulated in section 6.3 of the Direction. The Respondent draws attention to two of these Principles:
(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.
(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.
The Respondent argues that the Applicant has committed a serious crime against a woman and that there is little or no evidence that he has made anything of a positive contribution to the Australian community during his time here since 2003. All that the Applicant can claim in his Personal Circumstances Form when asked to list his “positive contributions to the Australian community” is to say: “Volunteer, cleaning Australia, Example Takeng trolleys out of the River and rabbish”.[36]
[36] Ibid at [72] reproduced exactly as written.
None of the other Principles appear, prima facie, to weigh significantly one way or the other in relation to this application.
There is a clear divergence of judicial views as to whether or not the expectations of the Australian community always weight against Applicants for cancellation revocations.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[37] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[37] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[38]
[38] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7(m)].
Similarly Deputy President McCabe has stated:
“The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[39]
[39] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].
In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:
“In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[40]
[40] Ibid at [58].
In Murphy v Minister for Immigration and Border Protection[41], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[41] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[42] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal or cancellation revocation cases should be considered.
[42] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[43] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[43] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes”[44] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[44] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
Two cases decided this year reveal these differing, indeed almost contradictory, approaches.
In FYBR v Minister for Home Affairs, Perry J stated:
“… it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11 (3) which will of its nature weight in favour of refusal, at least in most cases.”[45]
[45] [2019] FCA 500 at [42]. The reference to cl 11(3) was to that section of MD65 relating to visa applications couched in similar wording to section 13.3 of MD79.
By contrast in DKXY v Minister for Home Affairs[46], Griffiths J stated:
[30] In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant. The difficulty with the Minister’s submission is that the language in YNQY at [76] and [77] is not in its terms confined to the circumstances of the particular applicant there and, on one view, appears to have been intended to have a more general application. The ambiguity of the language is reflected in the division of opinion in the large number of decisions of the AAT in which the language has been viewed inconsistently and as supporting either a broad or a narrow approach to cl 13.1.
[31] As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
[32] I also respectfully disagree with the primary judge’s reference at [77] of YNQY that Robertson J’s reasons for judgment in Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 (Uelese) at [64]–[66] supported her Honour’s view that it was “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation because that is what this primary consideration is intended to do……
[33] ……… There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[46] [2019] FCA 495.
Other Considerations
The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[47] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[48].
[47] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[48] Ibid at [26].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[49]
[49] CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858 at [88].
Were the Tribunal to accord the “other” considerations less weight than the “primary” considerations, it would fall into error.
[24] The primary judge accepted that the Tribunal considered the different considerations relevant to Direction 65 and conducted a balancing exercise, but found that the Tribunal erred by starting from a stated position that the relevant “other” considerations were “secondary”. The Tribunal having found in its reasons that the respondent faced some risk of harm if deported, her Honour considered that this was a consideration to be weighed not from the starting point for being of secondary importance, but from a position that allowed the potential for such a consideration to be afforded equal or greater weight than a primary consideration. Having approached the review on the basis that “other” considerations were secondary, the Tribunal fell into error.[50]
[50] Minister for Home Affairs v HSKJ [2018] FCAFC 217 per Greenwood, Mckerracher and Burley JJ.
International Non-refoulement obligations
The Applicant has claimed, explicitly, that he would face a serious threat to his wellbeing and indeed to his life were he deported to Honduras.
The Respondent characterises these claims as follows:
The applicant claims that he cannot return to Honduras as he would be tortured and killed by the international criminal gang, MS-13, which he was "forced to engage in" prior to his relocation to Australia. He was "a big part" of the gang, and would be seen as a traitor for leaving without explanation and for providing information to the police about their leaders. He would draw unwanted attention to himself by speaking Spanish interspersed with English words due to the period of time he has spent in Australia. He would be faced with hardship arising from generalised violence and poverty.[51]
[51] Respondent’s Statement of Facts, Issues and Contentions at [37] footnotes omitted.
In his Personal Circumstances Statement the Applicant writes:
“The short time I lived in Honduras I experienced many deaths and murders between gangs.”[52]
[52] G Documents at [75].
In other parts of his Submission he states:
“I’m at risk of getting kidnapped from the gangs because my broken Spanish. They will know I’m from a (sic) English country. Also before I left I was in danger wirh a gang for not joining them. If I go back it will only be worse and I will have no support at all. Its’ a very dangeras (sic) place.”[53]
“Would like to take this opportunity to advise you of my existing gang life in Honduras at the age of 15 years old I was forced to engage in activities of the gang MS13, I thank god that i wasn’t required to any missions yo prove my loyalty to the gang. But nevertheless I was still a big part of it, the problem now is that while I left Honduras to scape that lifestyle, if I was to return to Honduras I would be seen as a traitor for leaving them without any explanation, and because of this would like to ask for clemency, so i can reform my life and start over.”[54]
“I face torture and death by the criminal gangs in Honduras because they are people who I grew up with and I was meant to become one of them. Instead I gave information to the police about their leaders.”[55]
[53] Ibid at [59].
[54] Ibid at [119].
[55] Ibid at [91].
In support of his application, the Applicant submitted to the Tribunal numerous newspaper and news reports drawing attention to the gross level of violence which characterises Honduran society and the prevalence of gangs and gang-related killings.
He asserts, further, that members of his family have been killed by gangs[56] and that gangs consider anyone to have lived overseas as being likely to be “rich” and hence a target for extortion or kidnapping.[57]
[56] Ibid at [63].
[57] Ibid at [87].
The Tribunal has examined material as reported by The Association for a More Just Society[58]; the Australian Department of Foreign Affairs and Trade’s smartraveller website[59]; the United States Department of State Country Reports on Human Rights Practice 2018 for Honduras and statements by the United States Treasury Department relating to gangs in Honduras.[60]
[58] The Association for a More Just Society is a Honduran non-governmental organization working on human rights and government transparency in Honduras, where it serves as Transparency International's local chapter. Smartraveller.gov.au/countries/Americas/central/Honduras.aspx
[60] US Department of the Treasury Press Centre: Treasury Sanctions Latin American Criminal Organisations, 10/11/2012.
From these sources, the Tribunal accepts that:
·Honduras has one of the highest rates of violence and murder in the world at between 86 and 90 per 100,000 people. The murder rate in San Pedro Sula (which is the Applicant’s home town) at 169 per 100,000 characterises it as “the most violent city in the world”[61]. The DFAT advice is for Australians to reconsider the need to travel to this town, “due to the very high levels of violent crime”;
·75% of homicide cases are not investigated, 88% never reach any form of judicial resolution and the courts have a backlog of 180,000 cases;
·There are as many as 40,000 active gang members in the country and the US government has designated the MS13 gang for its “involvement in serious transnational criminal activities, including drug trafficking, kidnapping, human smuggling, sex trafficking, murder, assassinations, racketeering, blackmail, extortion and immigration offences.”[62]
·“Children are extremely vulnerable. Gangs pressure them into service as drug mules or even assassins. Sexual violence is common…. The gangs give boys an ultimatum. Join or die.”[63]
·According to World Bank data about 64% of the Honduran population live in poverty and 16% in extreme poverty.[64]
[61] Terrence Heath: “America’s Border Crisis of Conscience”, 22 July 2014
[62] G Documents at [118].
[63] Terrence Heath: “America’s Border Crisis of Conscience”, 22 July 2014.
[64] ‘Honduras | Data’, The World Bank Data (Web Page) <>
The Respondent, rightly, pointed out that the Applicant had provided no probative evidence of either his involvement in gangs while a child/young man in Honduras nor the likelihood of his encountering threats from gangs on his return. What exactly such probative evidence may or could have been was not made clear to the Tribunal. The Tribunal itself is prepared to give some credibility to the claims.
In response to this material, in part advanced by the Applicant, the Respondent put to the Tribunal:[65]
38. To the extent that the applicant's representations as to why he fears returning to Honduras advance non-refoulement obligations as a reason for why the cancellation decision should be revoked, given that the applicant's visa is not a protection visa as defined by s 35A of the Act, the Minister notes that it is open to the applicant to make an application for a Protection visa, which would then compel the Minister to assess and determine his non-refoulement claims.32 However, having regard to the decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, the Tribunal is required to turn its mind to the applicant's claims to fear harm if returned to Honduras.
39. Ali v Minister for Immigration and Border Protection [2018] FCA 650, including at [28] and [34], stand for the proposition that, to the extent that the applicant raises non-refoulement claims to this Tribunal, that submission is properly addressed by the Tribunal finding it unnecessary to determine whether non-refoulement obligations are owed because the applicant has the ability to make a valid application for a Protection visa. Such a finding is consistent with paragraph 14.1(4) of Direction 79.
40. The Minister however notes the recent decision of Omar v Minister for Home Affairs [2019] FCA 279. In that case Justice Mortimer found that the Assistant Minister had failed to carry out the statutory task under s 501CA(4) of the Act by failing to consider the applicant’s representations going to “another reason” why the cancellation of the visa should be revoked and, in particular, failing to consider the applicant’s representations to be owed non-refoulement obligations.
41. The Minister appealed the decision of Omar to the Full Federal Court on 28 March 2019, being of the position that the matter was wrongly decided.
42. However, in light of the above, the Minister submits, having regard to the circumstances of this case, that to the extent that the Tribunal is required to consider and weigh the applicant’s claimed fear of harm as part of its consideration of the factors for or against revocation, it remains highly relevant to the Tribunal’s weighing exercise that the applicant is able to make an application for a Protection visa and to have his claims assessed and tested under the protection visa regime. If such an application is made, his non-refoulement claims would be considered.
[65] Respondent’s Statement of Facts, Issues and Contentions.
Omar is a decision based squarely on the principles laid down by the Full Federal Court in BCR16, which is not unexpected given that Omar is a decision of Justice Mortimer who was part of the majority in BCR16. Furthermore, in Omar, the Court distinguished its findings from those of Flick J in Ali holding them not to be inconsistent.[66] Even more to the point, special leave to appeal BCR16 to the High Court was refused[67] and the Minister’s initial assault upon its determination was rejected by the Full Court in BHA17[68] where it said:
[87] However we reject the contention of the Minister that the decision of the Full Court in BCR16 was plainly wrong. We consider that the approach taken by the majority in BCR16 was one that was open to be taken, for the reasons expressed by the majority.
[66] Omar v Minister for Home Affairs [2019] FCA 279 at [71].
[67] Minister for Immigration and Border Protection v BCR16 [2017] HCATrans 240 (17 November 2017)
[68] Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
It follows that, unless a further decision overturns BCR16 or Omar is disapproved, this Tribunal is obliged to consider the non-refoulement claims made by the Applicant and to come to a conclusion about them, rather than to allow that they be “hived off”[69] to some other process.
[69] Omar v Minister for Home Affairs [2019] FCA 279 at [34].
Relevantly, in BCR16 the Court said:
We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.[70]
[70] [2017] FCAFC 96 at [48].
Once the non-refoulement issue is raised, the Tribunal must consider it and decide if its determination constitutes “another reason” why the cancellation decision should be revoked.[71] Moreover BCR16 refers to “the universe of harm which could be suffered by a person on return to her or his country of nationality”[72] thus not confining the scope of potential harm merely to reasons specifically set forth in relevant international conventions.
[71] Ibid at [63].
[72] Ibid at [71].
Indeed, in Goundar (which was quoted extensively with approval in BCR16), Robertson J identified a failure by the Minister to “consider that part of the representations made by the applicant which concern the risk of retribution”[73] which is the essence of this Applicant’s claim.
[73] Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [53].
As Mortimer J put it in Omar, in relation to the Assistant Minister’s responsibilities (devolved upon the Tribunal as the current decision-maker):
In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.[74]
[74] Omar v Minister for Home Affairs [2019] FCA 279 at [81].
Similarly, in DFWB[75] decided just a few days ago, Steward J said:
It was not disputed that when a Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, there can be both a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: As already mentioned, the Tribunal must have regard to the representations put, as a matter of substance.
[75] DFW18 v Minister for Home Affairs [2019] FCA 599 at [46]. Footnotes and reference omitted.
Strength, Nature and Duration of Ties
The Applicant has lived almost exactly half his life in Honduras and half his life in Australia, although his entire adult life has been spent here. All of the members of his family: mother, sister, nephews, aunts, uncles, grandparents and cousins are Australian residents.
The Tribunal did not form the opinion from any of the written or oral evidence that the family itself was a particularly coherent unit with the Applicant making almost no reference to family members other than his mother, sister and nephews.
This set of ties is somewhat balanced by the requirement in section 14.2 of the Direction that requires the Tribunal to consider an application less favourably where an applicant has started a course of offending within a relatively short period of time after arrival in Australia and more favourably where an applicant has made a positive contribution to the Australian community. The Applicant first offended within 3 years of arrival (a serious offence of robbery of an older person who was hit during the robbery) and cannot claim to have made any serious contribution to any aspect of Australian community life.
Although the Applicant provided a letter of support for his application from his mother and absolutely anodyne references from two prison Chaplains,[76] he did not put to the Tribunal any other form of supporting reference or attestation which might have helped the Tribunal form a more positive impression of his ties to the community.
[76] G Documents at [96] and [97].
Impact on Australian Business Interests
There is nothing here for Tribunal consideration.
Impact on Victims
Leaving aside the members of the Police Force, in relation to whom no material was put before the Tribunal, the Applicant’s victims have been members of his immediate family, specifically his sister and his mother.
The Applicant told the Tribunal that his sister, somewhat accepting of her failure as a parent, was often in contact with him, and, when she was, frequently apologised to him for her failings and for being the cause of his current predicament. However it must be somewhat telling that his sister provided no written reference in support of her brother’s application.
His mother has submitted letters to various authorities in support of her son, writing that he is “a good son, a good brother, good friend and excellent uncle.”[77]
[77] Ibid at [100].
Extent of Impediments if Removed
In this regard, the Direction requires the Tribunal to consider (section 14.5):
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.
The Applicant, by all accounts, is in good physical health, although he claims that there are unresolved issues of depression and anxiety, although he has not apparently sought appropriate treatment for these. He speaks fluent Spanish and has a strong command of English. He spent most of his formative years in Honduras and is not unaware of the culture and mores of that country.
On the other hand, social, medical and economic conditions in that country are less than optimal. It is a poor country with little opportunity for employment and with a crime rates such that each year thousands of Hondurans leave, often at great risk, to try to gain (predominantly illegal) entry into the United States.
The Applicant has no relatives in the country, no home to which he might return, limited employment prospects, no support or social network to draw upon and has expressed his real fear of harm to himself should he be made to return. Being a citizen of Honduras is not exactly a status to which people aspire. The Respondent concedes this to the point of agreeing that, if returned, “he would face difficulties”.[78]
[78] Respondent’s statement of Facts, Issues and Contentions at [51].
CONSIDERATIONS
Consideration must be given to each of the factors which the Tribunal is required to consider, and thereafter perform what the Federal Court has described as a “calculus” [79] in relation to the various elements.
(a)In relation to the protection of the Australian community the Tribunal believes that while the domestic violence incident was serious and reprehensible, it was a one-off event which has not, and is not likely to be repeated. It was an unforgiveable action on the part of the Applicant for which the Tribunal believes him to be remorseful and contrite. The Tribunal does not believe that his continuing presence in Australia would constitute a risk to the community in terms of the possibility of his reoffending. It accepts that this element must, on balance, given the express concerns about domestic violence and offenses against women highlighted in the Direction, count against the Applicant.
(b)In relation to the best interests of the minor children, the Applicant should have this counted in his favour. However since his involvement has been minimal to date and there must be serious concerns about the general welfare of those children and their lack of serious parental care, this again should not be regarded as an overwhelming or determinative factor.
(c)In relation the to the expectations of the Australian community, the Tribunal accepts that it would be difficult to determine with any degree of confidence whether or not the community would take the view that while the offences may be serious and may well result in the cancellation of a visa, that would be their position given that the result of this might be that the Applicant was deported to Honduras, one of the most violent places on earth and one where the Applicant might be at genuine physical risk. To the extent that the Tribunal does have to make a finding in this regard, it comes to the conclusion that the Australian community, in this instance would be more likely (perhaps albeit, reluctantly) to support revocation than not.
(d)In relation to non-refoulement obligations the Tribunal believes, on balance, that the Applicant has a well-founded fear of what might happen to him were he to be returned to Honduras. It does not place great weight on the Respondent’s claims that the Applicant has advanced no probative evidence in support of this claim as it is not sure what any such (acceptable) evidence might be. Such material as is to hand suggests that the fears expressed by the Applicant are not unreasonable or without some grounds. This element of the calculus should be counted as weighing in the Applicant’s favour.
(e)In relation to the strength, nature and duration of ties, the Tribunal believes that while the Applicant’s family and relatives appear to all be in Australia, he himself has been less than a “model citizen”[80] with a poor record of offending, serious disregard for the laws of Australia and without any record of contributing to community welfare. To that extent, this factor counts for the Applicant, but only to a relatively slight degree and certainly not with any degree of determinative force.
(f)In relation to the impact on victims, the Tribunal does not believe that there is anything which counts one way or the other. The Applicant may have affected some sort of reconciliation or modus vivendi with his sister, but this is not apparent and clearly not something which could count favourably on his behalf.
(g)In relation to the impediments if removed, the Tribunal has no difficulty in coming to the conclusion that they would be severe. Honduras is a poor, violent country and while the Applicant speaks Spanish and is familiar with the country, he has no family or support there, no home or immediate prospects of employment and would suffer disadvantages as he has outlined, as indeed the Respondent accepts. It is also possible that the Applicant’s disadvantages may well go to the point of them constituting a danger to his physical wellbeing.
[79] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
[80] The Applicant is not actually a citizen of Australia.
This application has been particularly difficult for the Tribunal to determine in terms of weighing all the competing elements of the calculus and bearing in mind its duty to give due consideration to the newly enacted provisions of the Ministerial Direction.
However, on balance, the Tribunal concludes that the factors which weigh in favour of revocation of the cancellation decision – in particular the genuine fears of the Applicant about the consequences of being returned to Honduras and the impediments therein involved – outweigh the factors against, even taking into account the seriousness of the Applicant’s conduct and the strictures of the Ministerial Direction.
DECISION
The Delegate’s reviewable decision of 22 February 2019 is set aside, and in substitution the 31 August 2017 decision to cancel the applicant’s Class BO, Subclass 115 (Remaining Relative) visa is revoked on the basis that there is “another reason” to do so.
I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C Puplick AM
.................................[sgd]................................
Associate
Dated: 22 May 2019
Date(s) of hearing: 6 May 2019 Date final submissions received: 25 April 2019 Applicant: In person Advocate for the Respondent: Ms C Campbell Solicitors for the Respondent: MinterEllison
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