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

Case [2020] AATA 1434

HJBL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1434 (22 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/1239

Re:HJBL

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:22 May 2020

Place:Sydney

The Reviewable Decision dated 18 February 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class XE, Subclass 790 Safe Haven Enterprise visa.

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – Class XE, Subclass 790 Safe Haven Enterprise visa – citizen of Iran – failure to pass character test – driving offences – whether discretion to revoke mandatory visa cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – non-refoulement obligations – likelihood of indefinite period of detention – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197AB, 197C, 198, 499, 500, 501, 501E 501CA

Migration Regulations 1994 (Cth) reg 2.12AA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

CWGF v Minister for Home Affairs [2019] FCA 1802
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Pavey and Minister for Home Affairs [2019] AATA 4198
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

Ministerial Guideline – The ministerial intervention power under s48B of the Migration Act 1958

REASONS FOR DECISION

Senior Member Linda Kirk

22 May 2020

  1. HJBL (‘the Applicant’), a citizen of Iran, was born in 1990.  He arrived at Christmas Island as an unauthorised maritime arrival on 13 June 2013.[1]  On 12 October 2016, the Applicant applied for a Class XE, Subclass 790 Safe Haven Enterprise visa (‘the protection visa’).[2] On 15 September 2017, the Applicant was granted the visa.[3]

    [1] Exhibit R1, G12 124-125, G14 135.

    [2] Exhibit R1, G12 75-130.

    [3] Exhibit R1, G15 137.

  2. On 3 July 2019, the Applicant…

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Details
AGLC
HJBL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1434
Case
[2020] AATA 1434
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a mandatory visa cancellation decision made under section 501CA of the *Migration Act 1958* (Cth). The applicant, a citizen of Iran, had been granted a protection visa in 2017, but this visa was subsequently cancelled due to the applicant failing to pass the character test, stemming from driving offences. The applicant sought revocation of this cancellation decision.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act*. In determining this, the Tribunal was required to consider the relevant considerations outlined in Direction No. 79, particularly the primary considerations of protecting the Australian community and the best interests of minor children, as well as other considerations including non-refoulement obligations and the likelihood of indefinite detention.

The Tribunal reasoned that while the applicant's criminal offending was serious, and the protection of the Australian community was a significant consideration, the applicant had demonstrated a degree of rehabilitation. This was evidenced by his engagement with a clinical psychologist, his stated remorse for his past behaviour, and his commitment to changing his lifestyle. Crucially, the Tribunal also considered the applicant's well-founded fear of persecution upon return to Iran, which engaged Australia's non-refoulement obligations. The Tribunal found that the risk of indefinite detention in Australia, coupled with the risk of persecution in Iran, constituted "another reason" for revocation.

Consequently, the Tribunal set aside the mandatory visa cancellation decision and substituted it with a decision to revoke the cancellation. This meant the applicant's visa was reinstated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.EVIDENCE BEFORE THE TRIBUNALBackground and protection claims The Applicant was born in Tehran, Iran.[12] He completed high school in Tehran in 2008[13] and then worked as a sales person selling clothes until 2010.[14] He undertook military training in Tabriz, Azerbayejan for three months from November 2010 to February 2011.[15] Following this training, the Applicant worked as an accountant in his father’s wholesale trade timber business in Tehran from February 2011 to 2013.[16] During this period, he also would tattoo people from his home on a part-time basis. [17] [12] Exhibit R1, G8 55[13] Exhibit R1, G12 117.[14] Exhibit R1, G12 116.[15] Exhibit R1, G12 116.[16] Exhibit R1, G12 116; Transcript, 21.[17] Exhibit R1, G12 116. The Applicant left Iran at the age of 22 years to travel to Australia.[18] He arrived at Christmas Island as an unauthorised maritime arrival on 13 June 2013.[19] He was transferred to Wickham Point Immigration Detention Centre in Darwin and remained there until September 2013.[20] The Applicant told the Tribunal he left Iran because his life was at risk, and his father helped him to leave the country.[21][18] Exhibit R1 G12, 116; Transcript, 20. [19] Exhibit R1, G14 135.[20] Transcript, 67.[21] Transcript, 21-23. On 15 September 2017, the Applicant was granted a protection visa. The delegate’s file note in relation to the Applicant’s claims for protection provides as follows:I have found that the applicant was a tattoo artist in Iran and that when he left Iran he was a person of interest to the Iranian authorities. Being a tattoo artist is an illegal occupation in Iran as it is deemed to breach Islamic law (CX318213) and in recent times the regime has been taking a harder line against this profession. As discussed above, in 2014 a person received one hundred lashes and six months in gaol for being a tattoo artist (CX320655). This tattoo artist’s penalty was particularly harsh due to his prominent clients. While the applicant did not have the clientele that this person had, he was from a social and economically affluent background. His father currently owned a successful business and his father had previously held the position of Colonel with the Police Force. The applicant stated that he was mostly tattooing friends and friends of friends. So it is likely that his clients would have been people from a similar socioeconomic status as the applicant. The Iranian government sees tattoos as an action that is anti the regime as they see it as a western trait (CIS26056). There is limited information on the treatment of tattoo artists in Iran (CIS38A8012677) but there is information demonstrating that being a tattoo artist is a crime against morality (CIS26056) (CX320655). The applicant claimed that his family has been harassed since he has departed Iran and this is consistent with country information that indicates that the authorities will target family members of persons of interest (OGD95BE926964) (CX264514) (CIS38A80122742). I have found the applicant’s claims to be credible and I am satisfied that the Iranian regime will see his previous actions as anti the Iranian regime and a moral crime. When this is considered in conjunction with the applicant’s family’s position in society and that the authorities have shown an ongoing interest in the applicant and his family, I am satisfied that the cumulative effect will be that on return to Iran, there is a real chance that the applicant will be persecuted due to his imputed political opinion. I am therefore satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country. The essential and significant reason for the systematic and discriminatory persecution is the applicant’s imputed political opinion. (s5J(4)(a), (b), (c)). As the agent of persecution is the Iranian State I am satisfied this real chance of persecution relate to all areas of Iran (s5J(1)(c)) and that effective protection measures are not available (s5J(2)). I am also satisfied that the applicant has not engaged in conduct in Australia for the purpose of strengthening their claim to be a refugee (s5J(6)). I am therefore satisfied the applicant is a refugee as defined by section 5H(1) of the Act. I am also satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in paragraph 36(2)(a) of the Act. I am satisfied that the exclusion clauses in paragraphs 5H(2)(a), (b) or (c) of the Act do not apply to the applicant.[22][22] File note, Department of Home Affairs, 12 July 2017.Work in Australia

Decision

Reasons for decision

For these reasons, the Applicant cannot rely on subsection 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked? In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.PRIMARY CONSIDERATIONSPrimary Consideration A – Protection of the Australian community Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:When considering protection of the Australian community, decision-­makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Paragraph 13.1(2) directs that decision-makers should also give consideration to: a) the nature and seriousness of the non-citizen's conduct to date; andb) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(f)The cumulative effect of repeated offending;(g)…(h)…(i)…(a) Nature and seriousness of the Applicant’s conduct to date For the reasons that follow, and as required by paragraph 13.1(2)(a) of the Direction, the Tribunal finds that the Applicant’s criminal offending is serious. In making this finding the Tribunal has had regard to the factors listed in paragraph 13.1.1(1).

Ratio Decidendi

Legal Principle Established

In his written submissions dated 15 May 2020, the Applicant stated:I acknowledge that I have committed offences of a serious nature. My criminal record is relatively long and it includes some offences, which are “serious” offences, and some, which also have some aspect of violence. Before coming to Australia, I had never been convicted of any offences connected somehow to any types of driving, drug or alcohol dependence. These offences are clearly related to my previous personal and political problems that have come about because of my own background. I now feel ashamed about the way I have behaved in the past and deeply regret the hurt I have caused to my friends, my family as well as the various victims of my crimes.…Since sentenced to prison I had time to think about my life. I haven’t been a good child to my family and not a good friend to others and also not a pleasant character into (sic) the Australian community. Now I am clean and I am in a different place in my head. I no longer want to live the life I was living. I put my transformation down to the access I have had to professional help, which helped me realise the mistakes I was making. Now I realise this I am doing everything I can to straighten up my life. Time in custody and immigration detention The Applicant did not engage in any misconduct or behavioural breaches whilst incarcerated.[62][62] Exhibit R1, G13 131-134.Mental health and psychological assessment The Applicant provided to the Tribunal a letter dated 17 April 2020 from Dr Reza Pishyar, clinical psychologist. Dr Pishyar confirmed that the Applicant is under his clinical care and is receiving ‘ongoing supportive counselling to improve his coping strategies to manage his day to day living challenges after his nine months incarceration.’ He stated that, in his opinion, the Applicant’s symptoms are of ‘adequately frequency and severity to warrant a clinical diagnosis of adjustment disorder’ (emphasis in original) as defined by DSM-IV.[63][63] Exhibit A3. The Applicant told the Tribunal that he has seen Dr Pishyar once and is seeing him again following the hearing.[64] Dr Pishyar is going to arrange classes to assist the Applicant to change his behaviour and lifestyle. At their first session Dr Pishyar told him in general terms what these classes will involve, and at their second session he will give the Applicant further details of the program.[65][64] Transcript, 61.[65] Transcript, 62. The Applicant was asked whether he saw a psychologist when he was in gaol. He said that he visited by a psychologist twice and the total duration of both visits was half an hour.[66][66] Transcript, 63.Rehabilitation and risk of re-offending In his statement in support of his request for revocation, the Applicant stated:I now understand the seriousness of the offence (sic) I am in gaol. I will not do this again. I will also just work as a labourer and catch public transport. I can also hire another worker to do the driving for me until I get my licence again.[67][67] Exhibit R1, G9 66.