GXNY and Minister for Immigration and Border Protection (Migration)

[2018] AATA 17

GXNY and Minister for Immigration and Border Protection (Migration) [2018] AATA 17 (16 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6484

Re:GXNY

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:16 January 2018  

Place:Sydney

The reviewable decision will be set aside and the Tribunal decides in substitution that the applicant passes the character test under s.501(6)(d)(i) of the Migration Act 1958 (Cth).

.............................[sgd]...........................................

Deputy President B W Rayment

Catchwords
MIGRATION – visa refusal – application for protection visa – character test – applicant convicted of possessing a traffickable quantity of cannabis leaf – risk of engaging in criminal conduct – decision set aside and substituted

Legislation
Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 29 and Sch 1
Migration Act 1958 (Cth) ss 501(1), (6)(d)

REASONS FOR DECISION

Deputy President B W Rayment

16 January 2018

1. This applicant for a protection visa was born in January 1983 in Baghdad in the Republic of Iraq. He is now 35 years of age and has worked in Iraq and Australia as a barber. On 1 November 2016 his application for a visa was deemed to be an application for a Temporary Protection (Class XD) visa.

2. On 25 October 2017, a delegate refused the application for a protection visa and that refusal is the decision which comes before me for review.

3. The issues before me are first, whether the applicant passes the character test in s.501 of the Migration Act 1958 (Cth), and, second, if not, whether the discretion in s.501(1) of the Migration Act should be exercised in his favour (so that his application for a visa may be further processed) or against him (in which case he will be removed as soon as practicable to Iraq).

4. In 2016 he pleaded guilty and was convicted of the offence of supplying a prohibited drug, contrary to s.25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA Act). The drug was cannabis leaf and the quantity was 464 grams, which was described in Schedule 1 to the DMTA Act as a traffickable quantity, that is, less than an indictable quantity, and less than a commercial quantity or large commercial quantity. The Magistrate sentenced him to 10 months imprisonment with a non-parole period of seven months and two weeks.

5. The applicant brought an appeal against sentence to the District Court. Judge Bennett said that he was surprised that the Magistrate did not consider an option other than full time custody. The Judge reduced the non-parole period so that he was released forthwith upon the hearing of the appeal.  He also expressed surprise that the applicant had not been given bail.  It is apparent from the remarks of Judge Bennett that the facts of the offence, for a man such as the applicant, with no prior convictions, were regarded by him as low range, perhaps justifying a bond rather than imprisonment.

6. I have heard the evidence of the applicant given through an interpreter.

7. The applicant suggested that he pleaded guilty to the charge to get rid of the matter, he having already been in custody for some six months and was fearful that if the matter dragged on he would remain in custody longer still. When the Magistrate dealt with the matter he had already been in custody for six months and when Judge Bennett dealt with the matter, he had spent a further two weeks in custody.

8. With the quantity of drugs involved, s.29 of the DMTA Act provided that he was deemed to have the drugs for supply unless he proved the contrary. No step was taken on his behalf to prove the circumstances in which he had possession of the cannabis leaf.

9. He had driven with another person from Adelaide to Sydney. He intended to spend two days in Sydney and then return to Adelaide. On the second day the police pulled over the vehicle and found in the bag of the other person some 17 kilograms of cannabis leaf, and 464 grams in the applicant’s luggage.

10. The evidence of the applicant was that he did not know there was any cannabis leaf in his bag, and assumed that it was placed there by his companion. I asked him why he thought that the companion had put it there and he could advance no explanation.

11. That does not suggest to me that his case was that the companion intended to give the cannabis leaf to him from his supply. The companion would, one imagines, have told him that he was giving the cannabis leaf to the applicant if that was the case. To make the applicant a courier of a small portion of the drugs makes no sense when the companion kept 17 kilograms in his possession. It is otherwise unlikely, in my opinion, that the version of the facts asserted by the applicant is correct, because one cannot understand why the companion would have stored 464 grams of the drug in the applicant’s bag.

12. On the other hand, it is possible that the plea of guilty was motivated, at least in part, as was said by the applicant, by a desire to get the matter over with.

13. Section 501 of the Migration Act provides that if the non-citizen has a “substantial criminal record”, one example of which is that he or she been sentenced to a term of imprisonment of 12 months or more, then he or she does not pass the character test. That provision is not engaged.

14. Instead the delegate found that the applicant did not pass the character test because there was a risk that the applicant would engage in criminal conduct in Australia. That would cause the applicant to fail to pass the character test under s.501(6)(d)(i) of the Migration Act. It is desirable to set out the whole of s.501(6)(d). It is as follows:

    (6) For the purposes of this section, a person does not pass the character test if:

    …

    (d)  in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

    (i)  engage in criminal conduct in Australia; or

    (ii)  harass, molest, intimidate or stalk another person in Australia; or

    (iii)  vilify a segment of the Australian community; or

    (iv)  incite discord in the Australian community or in a segment of that community; or

    (v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;…

15. It is part of the duty of this Tribunal to review the factual findings involved in the reviewable decision.  It is appropriate to do so at the date of the hearing and in the light of the evidence as it stands at the date of the hearing. The circumstances of the applicant revealed in the evidence are that he has lived in Australia since 11 May 2012.  He was then aged 29 years. He had worked as a barber in Iraq and temporarily in his father’s hardware store.  He left Iraq because his employer was murdered by Sunni militants.  He feared that he was the next target. Extremist Islamist groups apparently believe that it is against Sharia law for men to shave their face.

16. He arrived as an illegal maritime arrival and was initially detained. On 31 January 2013 he was released from detention and in the period of time prior to 2016 he had no brushes with the law. He obtained employment with a barber in South Australia, who still wishes to re-employ him if he is released from detention.

17. He has not been at liberty since 29 February 2016. That was the date on which he was arrested in New South Wales. Bail not having been applied for on his behalf, he remained in custody until the Magistrate imposed the sentence which Judge Bennett found surprising. The Judge appears to have thought both that he should have been granted bail before conviction and dealt with without imposition of a term of imprisonment. That no doubt reflected the Judge’s view that the offending was of a low range and also that the applicant had no criminal record.  Judge Bennett ordered him to be released forthwith on 8 September 2016.   At this time, the applicant had spent some seven months behind bars. He was then taken into immigration detention, and remains there today, having been moved from a centre in New South Wales to one in Western Australia. So, aggregating the time spent in gaol with that spent in detention, he has so far been deprived of his liberty for almost two years.

18. His behavior appears to have been exemplary throughout that period. Judge Bennett ordered his immediate release and referred to no reason why he should not have been released on parole forthwith.

19. No adverse report has been made about him by those who conduct the detention facility. On the contrary, he has been given a certificate of appreciation for his assistance with hairdressing in the barber shop at Yongah Hill Immigration Detention Centre, and in August, September, October and November 2017 he has been accorded privileges by Serco, the contractor which operates the Yongah Hill facility.

20. In September and November he received invitations to a barbecue “as a result of [his] positive, cooperative and compliant behavior within Yongah Hill IDC”.

21. The evidence suggests to me that he has been, before and after the offending of 2016, a law-abiding person.  The offending involved a deemed supply, but is not shown to have actually involved any proposed supply. It certainly involved no actual supply.

22. Is there a risk that the applicant will engage in criminal conduct in Australia if released back into the community? In my opinion, any such risk is theoretical rather than real. There is a theoretical risk that any person convicted on one occasion of a petty crime might re-offend, but such a risk is not what seems to be involved in s.501(6)(d). One must also bear in mind that the 10 month term of imprisonment was criticised by Judge Bennett, who ordered his immediate release.

23. If, which may be doubted on the evidence before me, he had a propensity to engage in criminal behavior in the future in 2016, it can be seen that he has, after being deprived of his liberty at first in the New South Wales prison system, and later by immigration detention, for one year and 10 months, one would have to conclude that he has learned his lesson in all likelihood.

24. His history also indicates that he values his liberty. That can be seen from his explanation for pleading guilty before the Magistrate, and from his having appealed to the District Court in order to seek earlier release. He is awaiting employment and it is apparent from the tenor of his evidence before me that he strongly desires to return to the community, for the purpose of leading an ordinary and law-abiding existence.

25. I am satisfied that there is not a risk that the applicant would engage in criminal conduct in Australia if allowed to remain in Australia.

    DECISION

26. The reviewable decision will be set aside and the Tribunal decides in substitution that the applicant passes the character test under s.501(6)(d)(i) of the Migration Act 1958 (Cth), with the consequence that it is not necessary to consider how the discretion to refuse the application for a visa under s.501(1) of the Migration Act should be exercised.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

.............................[sgd]...........................................

Associate

Dated: 16 January 2018

Date(s) of hearing:	8 & 9 January 2018
Counsel for the Applicant:	Mr D Blades
Solicitors for the Applicant:	Cathal Smith Legal Pty Ltd
Solicitors for the Respondent:	Clayton Utz