GYTW and Minister for Home Affairs (Migration)

Case [2019] AATA 4149

GYTW and Minister for Home Affairs (Migration) [2019] AATA 4149 (9 October 2019)

Division:GENERAL DIVISION

File Number:           2019/4416

Re:GYTW

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:9 October 2019

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of Iraq – Class XA Subclass 866 Protection visa – failure to pass good character test – multiple convictions between 2011 and 2016 – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)

Migration Regulations 1994 (Cth)

CASES

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 104
DGBK v Minister for Home Affairs [2019] FCA 1479
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Puni v Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 915
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Vargas v Minister for Home Affairs [2019] AATA 3409

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

9 October 2019

INTRODUCTION

  1. The applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class XA Subclass 866 Protection visa (“protection visa”).

    APPLICANT’S IDENTITY

  2. Section 501K of the Act provides that the Administrative Appeals Tribunal must not publish (in electronic form or otherwise) any information that may identify a person who has applied for a protection visa, a protection-related bridging visa, or who has had a protection visa cancelled. As this matter relates to the cancellation of the applicant’s protection visa, the Tribunal will refer to him by the anonym “GYTW”. Certain details that might tend to identify GYTW have been redacted, including the identity of witnesses and the names and information of other persons who might identify him.   

  3. The initial hearing was held in Melbourne on 25 and 26 September 2019. The applicant appeared in person and was represented by…

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AGLC
GYTW and Minister for Home Affairs (Migration) [2019] AATA 4149
Case
[2019] AATA 4149
Decision Date

CaseChat Overview and Summary

This matter concerned an application by GYTW, a citizen of Iraq, for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of his protection visa. GYTW arrived in Australia in 2010 and was granted a protection visa due to his fear of harm in Iraq. He has since been convicted of numerous criminal offences, including two counts of armed robbery in 2016, for which he remains imprisoned. The visa was mandatorily cancelled in October 2017.

The Tribunal was required to determine if there was "another reason" why the mandatory cancellation of GYTW's visa should be revoked, as contemplated by s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved assessing whether any identified reason carried sufficient weight or significance to satisfy the decision-maker that the cancellation should be revoked, drawing on the principles established in *Viane v Minister for Immigration and Border Protection*. The Tribunal considered various factors, including the protection of the Australian community, the expectations of the Australian community, the best interests of minor children, Australia's non-refoulement obligations, the strength and nature of GYTW's ties to Australia, and the impediments he would face if removed.

The Tribunal found that GYTW's offending was objectively very serious, had caused harm to the community, and presented an unacceptable future risk. While acknowledging sympathy for his early life circumstances and the basis of his protection visa, the Tribunal noted his offending began soon after arrival and escalated in seriousness. Despite some rehabilitative steps and limited ties to Australia, primarily through his cousin's family, the Tribunal concluded that the primary considerations of community protection and expectations weighed very strongly against revocation. Although Australia's non-refoulement obligations and impediments to return to Iraq weighed strongly in favour of revocation, and the best interests of minor children weighed slightly, these were outweighed by the factors against revocation. Consequently, the Tribunal found there was not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the Tribunal affirms the decision under review. BACKGROUND The factual background to this matter is as follows:(a)GYTW is a 27-year old citizen of Iraq. He lived in Iraq until 2009 and then travelled through Dubai and Indonesia[1] before arriving in Australia by boat in early 2010.[2] He was subsequently granted a protection visa as a result of his claimed fear of harm in Iraq, which he continues to rely on:‘The Australian government determined that I was owed protection from Iraq. My fear of returning to Iraq is as great now as it was when I first arrived here – if not greater.’[3]‘My major concern is that I will be killed if I return to Iraq.’[4](b)During almost a decade in Australia, GYTW has been convicted of multiple criminal offences, the most serious of which were two counts of ‘Armed robbery’ in March 2016, for which he remains imprisoned;(c)GYTW’s visa was mandatorily cancelled on 20 October 2017 by a delegate of the then Minister for Immigration and Border Protection.[5] He was invited to make representations to have the cancellation decision revoked, and did so within the period and in the manner specified under the Act;[6] (d)On 17 July 2019, a delegate of the Minister decided not to revoke the visa cancellation decision;[7] and(e)On 23 July 2019 GYTW asked the Tribunal to review the delegate’s non-revocation decision, stating:‘…the Department of Home Affairs fell into error by failing to give proper, genuine and realistic consideration of a representation made by the applicant with regards to why the s501 mandatory cancellation of the applicant’s visa should be revoked.’[8][1] Exhibit R2, 407[2] Exhibit R1, 68.[3] Ibid, 117 [29].[4] Ibid, 63.[5] Ibid, 153-158[6] Ibid, 49-65; 67-112.[7] Ibid, 8-9.[8] Ibid, 6. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 10 October 2019.STATUTORY FRAMEWORK A person who is not an Australia citizen, and is in the migration zone while holding a visa that is in effect, is a ‘lawful non-citizen’ (s 13(1) of the Act). Any other non-citizen in the migration zone is an ‘unlawful non-citizen’ (s 14(1) of the Act). Section 189(1) of the Act requires that an ‘officer,’ as defined in s 5(1), ‘must’ detain a person the officer knows or reasonably suspects is an unlawful non-citizen. Except in some circumstances, like when the Minister personally makes a decision under s 501 of the Act,[9] the officer must ensure that a detained person is made aware of the provisions of ss 195 and 196 of the Act as soon as reasonably practicable (s 194(a)). Section 195 enables a detainee to apply for a visa within a short period of time. If they do not do so within that time, they may only for a bridging visa or a protection visa. A detained person may also be granted a visa of a particular class if the Minister considers it is in the public interest to do so. For example, s 195A of the Act allows the Minister to grant a visa to a person who is in detention, whether or not the person has applied for the visa. The power must be exercised by the Minister personally (s 195A(5)). The Minister is not obliged to consider whether to exercise the power (s 195A(4)). Section 197AB allows the Minister, if the Minister thinks it is in the public interest to do so, to make a residence determination to the effect that a person reside at a specified place instead of being held in immigration detention. Again, the Minister is under no duty to make such a determination (s 197AE), and is obliged to exercise the power personally (s 197AF). [9] Migration Act, s 193(1)(a)(iv).

Evidence

Evidence Before The Court

It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of the applicant’s visa should be revoked. The task of identifying ‘another reason’ was recently elaborated upon by the Full Court of the Australian Federal Court in Viane:[12]‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’[12] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].EVIDENCE BEFORE THE TRIBUNAL The following materials were taken into evidence:(a)“G-Documents” numbering 222 pages;[13](b)Supplementary G-Documents numbering 558 pages;[14](c)Statutory Declaration of the applicant dated 25 September 2019;[15](d)A Risk Assessment and Report by Consultant Forensic and Clinical Psychologist, Dr Astrid Birgden dated 16 September 2019, commissioned by GYTW’s legal representatives;[16] and(e)GYTW’s outgoing and incoming passenger cards relating to his overseas travel in 2011, 2013, and 2014.[17][13] Exhibit R1;[14] Exhibit R2[15] Exhibit A1. The document was lodged with the Tribunal on 20 September 2019 and was signed by GYTW prior to his evidence in chief on the first day of the hearing. [16] Exhibit A2.[17] Exhibit T1. The following witnesses gave oral evidence at the hearing:(a)GYTW;(b)GYTW’s cousin;(c)the wife of GYTW’s cousin; and(d)Dr Birgden (by telephone).Convictions On 21 June 2011, GYTW was convicted in the Norseman Magistrates’ Court in Western Australia for: Unauthorised driving while holding a Probationary Motor Vehicle Licence; Reckless driving (155 km/h); and Fail to display P Plates, for which he was fined $1600 and had his licence disqualified for six months.[18][18] Exhibit R2, 451. GYTW’s National Police Certificate[19] discloses the following convictions:(a)17 February 2014: Unlawful assault; Criminal damage (intent damage/destroy); five counts of Drive whilst disqualified; State false name or address; two counts of State false name; Fail to answer bail; and Use unregistered motor vehicle – highway. GYTW was sentenced to a 15-month community correction order (“CCO”) and was ordered to perform 120 hours of unpaid community work;(b)23 June 2014: Breach re 17/02/2014. GYTW was found to have contravened his February 2014 CCO;(c)17 July 2014: Recklessly cause serious injury, for which GYTW was sentenced to a two-year CCO, and ordered to perform 200 hours of unpaid community work;(d)10 December 2015: Use controlled weapon without excuse and Behave in riotous manner in public place, for which GYTW was convicted and fined an aggregate of $1,500.00;(e)4 March 2016: Two counts of Armed Robbery, for which GYTW was sentenced to three years imprisonment on each count, with two years of the second count to be served concurrently. The court also found GYTW had breached his 17 July 2014 CCO and he was resentenced to six months imprisonment for the earlier Recklessly cause serious injury conviction. His total effective sentence was four and a half years, with a non-parole period of three years;(f)20 April 2016: Theft; Possess methylamphetamine (commonly known as ice); two counts of Contravene a conduct condition of Bail Granted; Commit indictable offence whilst on bail; four counts of Unlicensed driving; Drive whilst disqualified; two counts of Fail to answer Bail Granted; Careless driving of a motor vehicle; Enter place likely cause breach of peace. GYTW was sentenced to an aggregate of five months imprisonment. He was also found to have breached the CCO imposed on 23 June 2014 and was resentenced on those charges to an aggregate of two months’ imprisonment; and(g)4 May 2016: Fail to answer Bail granted. GYTW was convicted and fined $500.00 with $117.00 statutory costs.[19] Exhibit R1, 30-32.Sentencing Remarks

Decision

Reasons for decision

No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of the applicant’s case as provided for at paragraph 14(1) of the Direction. CONCLUSION GYTW’s offending is objectively very serious and has caused serious harm to members of the Australian community. The physical or psychological harm arising from any similar violent offending is so serious that any likelihood of repetition is considered unacceptable. The Australian community would be sympathetic to the circumstances of GYTW’s early life, the difficulties he encountered following arrival in Australia, and the basis on which he was granted a protection visa. His limited contribution through work would be noted, as would the rehabilitative steps he has taken. Balanced against that, however, the community would note GYTW’s offending began soon after arriving in Australia and encompasses multiple violent offences that have increased in seriousness. They would consider GYTW has not taken full advantage of the court’s lenient treatment or the rehabilitative opportunities afforded to him. The serious nature of his armed robbery offences in particular, and the unacceptable nature of the future risk he poses, is such that the community would expect GYTW should not hold a visa. GYTW’s ties to Australia are very limited and extend predominantly to his cousin, his cousin’s wife, and the couple’s two infant children. Based entirely on GYTW’s aspiration to play a more prominent future role in the lives of his cousin’s two infant children, the Tribunal finds it is in the children’s best interests that GYTW’s visa cancellation is revoked. But for the reasons previously adduced, only slightly so. Notwithstanding the Tribunal’s concerns about GYTW’s travel to Iraq in 2013 and 2014, GYTW’s specific circumstances engage Australia’s non-refoulement obligations, which weighs strongly in favour of revoking his visa cancellation. There are also considerable impediments confronting GYTW were he to be returned to Iraq, which also weigh strongly in his favour. Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason of sufficient weight or significance to enliven the statutory power to revoke the cancellation of GYTW’s visa. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These outweigh the primary consideration ‘Best interests of minor children in Australia,’ which weighs slightly in favour of revocation, and the other considerations of ‘Australia’s non-refoulement obligations,’ which weighs very strongly in favour of revocation, the ‘Strength, nature and duration of ties’ which weighs slightly in favour of revocation, and the ‘Extent of Impediments if removed,’ which weighs strongly in favour of revocation.

Ratio Decidendi

Legal Principle Established

The Australian community would be sympathetic about GYTW’s early life in Iraq, separation from his family, and difficulties in adjusting to life in Australia. The community would also have regard for the circumstances under which GYTW was granted a protection visa. Balanced against that, the community would note GYTW’s offending began very soon after his arrival in Australia and has continued throughout his stay. The community would consider GYTW has repeatedly breached their trust. The community would be concerned particularly concerned about the very serious nature of GYTW’s offending, particularly multiple violent offences of increasing seriousness since 2014. Given the unacceptable nature of the future risk GYTW poses, the community would expect GYTW should not hold a visa. This primary consideration weighs very strongly against revoking his mandatory visa cancellation.OTHER CONSIDERATIONSTribunal consideration: International non-refoulement obligations Paragraph 14.1 of the Direction provides:(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 non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non- refoulement obligation exists.(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).(4) Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also 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 – sections 48A and 48B of the Act refer).(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.