HSFF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

[2022] AATA 3100

HSFF and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3100 (31 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5024

Re:HSFF

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:31 August 2022

Date of written reasons:        20 September 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Migration Act 1958 (Cth).

..................[Sgnd]..........................................

Senior Member Dr N A Manetta

MIGRATION – refusal of protection visa on character grounds – applicant most recently commits serious offence of manslaughter – applicant may not be lawfully refouled to his birth country of Sierra Leone – applicant facing prospect of indefinite immigration detention – applicant has already been in detention for some years after making application for protection visa – WKMZ applied – decision under review set aside and substituted

Legislation

Migration Act, 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463

Secondary Materials

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

20 September 2022

1. After I delivered my oral reasons, I received a request for written reasons, which I now publish.  These are substantially the reasons I read out, with some amendments.

2. This is an application by HSFF, whose name has been anonymised as there is a confidentiality order in place, and to whom I shall simply refer as “the applicant”. The applicant seeks to have a decision of the respondent’s delegate dated 7 June 2022 set aside. The delegate had decided, in the exercise of his or her discretion, to refuse the applicant’s application for a protection visa. The decision to refuse the visa was taken under section 501(1) of the Migration Act, 1958 (Cth) (‘the Act”). 

3. The delegate had first to decide whether the applicant failed the so-called “character” test. It was decided by the delegate – and conceded properly by the applicant on review before me – that he does not pass that test as he has a significant criminal record as that term is elaborated in s 501. In these circumstances, the delegate then had a discretion to exercise under s 501(1); namely, whether to refuse the visa. In reaching his or her decision as to the proper exercise of the discretion, the delegate was required to apply Direction 90, issued under section 499 of the Act.[1]  I, too, am obliged to apply the Direction as part of my review.

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

4. In matters like this, the Tribunal proceeds de novo to use the Latin expression.  That is, the Tribunal determines the matter afresh: it hears oral evidence, receives written documentation and reports, draws its own inferences, and makes its own final conclusions of fact.  It does not merely review the delegate’s decision for error.

5. It follows that the Tribunal may affirm a decision under review, notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may set aside a decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision to make on the evidence.

6. At the hearing before me, Ms Finegan and Mr James appeared for the applicant; Ms Francois, for the respondent.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review and to substitute a decision that the applicant’s application for a protection visa not be refused under section 501(1) of the Act.

8. I set out now a summary of the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

9. The applicant first came to Australia in 2010 aged 19. He was born in Sierra Leone in 1991. When he was about seven, the applicant’s home was attacked by rebels.  They killed the applicant’s stepsister’s husband in front of him. He was beaten, kidnapped and taken to a rebel camp. The applicant’s stepsister was further brutally raped in front of him, and she lost the child she was carrying as a result of that assault. I accept, therefore, that in his youth the applicant witnessed extreme levels of violence.  The applicant eventually escaped the camp and travelled from Sierra Leone to Guinea. Members of the applicant’s family were eventually granted special humanitarian visas, which permitted their entry into Australia. As I have said, the applicant entered Australia in 2010 at the age of 19.

10. Very early on after his arrival in Australia, the applicant began to commit criminal offences.  His criminal record was before me in Exhibit R1, at pp 42-43.  There are two offences committed in May 2011 which were the subject of proceedings in the Beenleigh Magistrates Court and the Holland Park Magistrates Court, respectively, in June 2011. I note that no conviction was recorded in either case, but fines of $250 and $150, respectively, were imposed.  In my opinion, given their age and their disposition in the Court, these offences do not have any material bearing on my decision and may be put to one side.

11. In 2015, the applicant was sentenced to 12 months’ imprisonment in relation to each of a number of dishonesty offences and an assault occasioning bodily harm whilst armed in company.  All these offences had taken place in 2011 and are set out at page 48 of Exhibit R1, which contains the sentencing remarks from the Supreme Court of Queensland.  The two dishonesty charges involved the possession and misuse of a stolen SIM card (where a very large phone bill was run up, but how much of that was referable to the applicant’s misuse was not known to the Court).  The assault charge concerned the applicant’s presence where others, but not the applicant personally, assaulted the complainant in that case. These offences are serious and resulted in a 12-month sentence of imprisonment on each count, to be served concurrently. 

12. On 1 December 2012, the applicant committed the offence of manslaughter by the unlawful killing of a 17-year-old.  The killing occurred at a birthday party taking place in a house at Station Road Woodbridge.  The victim was only 17 years old, as I have said. 

13. The applicant accepted early on that he was guilty of manslaughter; and pleaded guilty to this alternative charge, but a charge of murder was also pursued.  In the event, the charge of murder was withdrawn after a prosecutorial review of the evidence that had been given at an aborted trial (where the jury had to be discharged).

14. The salient facts, which I take from the sentencing remarks, are as follows.  The applicant had parked his car on the street at the front of the house in Station Road, Woodbridge.  At about 10:00 pm, a street fight broke out among groups of African and Islander youths.  It was not suggested that the applicant took part in the fighting or rioting. The Court found, in circumstances where there was conflicting evidence, that it was likely that the applicant drove in a southerly direction away from the house and then drove back up Station Road in a northerly direction. He struck the victim with the vehicle on this return journey.  The victim suffered, amongst other things, massive head injuries and he eventually died. The sentencing Court found that the applicant did not have an intention to kill or to cause grievous bodily harm to anyone; but that he did make a conscious and deliberate decision to drive towards a group of people on the road.

15. The Court quoted from, and appeared to accept, a psychological report into the offending. In essence, the report suggested that it was likely that the street riots on this occasion were reminiscent of earlier traumatic situations that the applicant had faced in Sierra Leone and Guinea, triggering what is commonly referred to as a “flight or fight” response. I note that the author of the report suggests that “it is likely that [the applicant’s] reactions were largely automatic as the physiological response of the body during this kind of reaction can impair rational, composed thought processes, and in its place be more reactive and protective in nature (i.e. acting out of protection from danger, rather than weighing up the correct and logical sequence of responding).”[2]

    [2] See Exhibit R1, at p 48.

16. The Court found that this did not excuse the applicant’s criminal conduct, but it at least provided some explanation for the tragic event.

17. In the result, a sentence of nine years was imposed in respect of the manslaughter offence.  I note for the record that a summary offence of breaching one’s duties as a driver who has been involved in a road accident was also found to have occurred.  A conviction was recorded but no further sentence imposed.

18. The applicant was also disqualified for life from holding a driver’s licence. 

19. The material before me indicates that the applicant has been involved in a number of assaults and misbehaviour whilst in gaol. I need not go through these episodes, but I note them. They suggest he was involved as a perpetrator in 12 out of 18 incident reports. These are listed at page 54 of Exhibit R1. I have taken them into account.

20. I note that the applicant left jail and commenced immigration detention on 6 June 2017.  He has also been involved in a number of incidents in detention, which are also set out in Exhibit R1, at pp 56ff.   

21. To complete the procedural history of the matter, I would note that the applicant’s humanitarian visa was cancelled mandatorily on 7 February 2017 (as required under the Act) and that this decision was confirmed internally exactly one year later, on 7 February 2018.  It would appear that the latter decision was taken by the then-Assistant Minister for Home Affairs personally.  On 31 May 2018, the Federal Court of Australia dismissed the applicant’s application for judicial review.[3]  The applicant then applied for a protection (Class XA) visa.  This application is recorded as having been made on 7 November 2018,[4] some 3 years and nine months ago. On 5 December 2019, the Minister’s possible intention to refuse to grant the applicant a protection visa under s 501(1) was communicated to the applicant. That occurred thirteen months after the applicant had applied for the protection visa and while he was being held in detention.

    [3] Exhibit R1, at p 96.

    [4] Exhibit R1, at p 110.

22. There were ongoing delays in the decision-making process. I am not in a position to decide finally why these delays occurred, and they are not, as such, directly relevant to my decision[5]; but I note that, self-evidently, the applicant’s application for a protection visa (including any possible exercise of the s 501(1) power) needed to be finalised as promptly as possible given his ongoing detention. As matters have panned out, it is clear that the applicant satisfied, in the respondent’s view, the prescribed criteria for the grant of the visa he had requested. It was accepted by the respondent before me that Sierra Leone – the only country for which the applicant had a right of re-entry – was one where he faced the risk of serious harm or even death.

    [5] But his lengthy detention to date in immigration detention is in my opinion a matter I should take into account in conjunction with the prospect of future detention in the manner indicated at paragraph [50] below.

23. What prevented the grant of the visa in this case ended up being the respondent’s delegate’s exercise of the discretion to refuse the visa under s 501(1). The decision by the respondent’s delegate was taken on 7 June 2022 only, and so it is clear that, for one reason or another, it has taken from 7 November 2018 (when the protection visa application was first made) to 7 June 2022 to finalise the application and thereby enliven the applicant s right to approach this Tribunal for a merits review. I do not need to decide the rights and wrongs of that delay today, as I have said, but it is a matter I note with lively concern.

24. I turn now to consider the re-exercise by the Tribunal of the discretion under section 501(1).

    DIRECTION 90

25. Like the delegate, I must apply Direction 90.  I set out the background to the direction in a decision called Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119. It is my practice to reproduce certain paragraphs of that decision, from [32] onwards, in my decision, and I do so here. What I said there concerned a review of a visa cancellation, rather than a visa refusal, but the paragraphs apply mutatis mutandis to my review in this matter:

    “32 … It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7  directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

26. There are a number of primary considerations which I must consider. The first is the protection of the Australian community from criminal or other serious conduct.  Paragraph 8.1(1) requires me to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law abiding and will not, amongst other things, cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind.

27. I must have regard to the nature and seriousness of the applicant’s conduct to date.  For present purposes, it is, I believe, appropriate that I confine my analysis to a consideration of the offending that has received jail sentences.

28. There have been offences of dishonesty involving a SIM card, which is a serious matter.  I accept that the 12-month concurrent sentence which was imposed in respect of that offending marked out its seriousness in the Court’s view. I also regard the applicant’s passive assistance while others assaulted a victim as serious because it showed him willing to participate in a form of group, or gang, violence.  He had his role to play in the execution of the violence against the victim on that occasion, and that matter is serious because it involves deliberate and violent conduct of a highly anti-social type. Again, the sentence of 12 months marks the crime out as one that is to be taken seriously.  These are not light gaol sentences.  The Direction requires a crime of violence to be taken very seriously.

29. The offence of manslaughter is also required to be taken very seriously under the Direction, as it is a violent crime. It was also a crime against a child because the victim was just under the age of 18 (namely, 17).  The offending was clearly very serious. The sentence imposed by the Court for this crime is also a clear marker of its seriousness. The sentence of nine years is a long one.  A life, and a young one at that, was lost tragically as a result of the applicant’s actions. As has proved to be the case here, inappropriate and erratic driving can lead to death.

30. I must have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness. I believe there is some frequency disclosed by the record, and there is also a trend of increasing seriousness evident in the offences from 2011 involving dishonesty and assault. These marked an increasing seriousness. Clearly enough, the offence of manslaughter represents further seriousness in the offending.

31. I must have regard to the cumulative effect of repeated offending, and I do so.

32. I must have regard to the risks to the Australian community should the applicant commit further offences or engage in other serious conduct. I bear in mind the injunction in paragraph 8.1.2(1) that requires decision-makers to have regard to the Government’s view that the community’s tolerance for any risk becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that may be unacceptable. I bear the injunction in this paragraph carefully in mind.

33. In assessing risk to the Australian community, I am to have regard “cumulatively” to two matters listed in subparagraphs (a) and (b) of paragraph 8.1.2(2). I must have regard to the nature of the harm to individuals or the Australian community on the assumption engages in further criminal other serious conduct. Clearly, there would be some considerable harm were the applicant to engage (even as a passive member of a group) in acts of deliberate violence towards members of the community. I do not discount either the seriousness of the dishonestly offences. It is at least inconvenient, but also frequently a real hardship, when personal property is misappropriated and misused by others. Finally, I need hardly observe that any operation of a motor vehicle by the applicant is self-evidently fraught given what happened on the night of 1 December 2012.  If he were to drive again, there would be a serious risk of injury and death if events occurred which caused him to panic.  I accept that a post-traumatic stress disorder contributed to his offending.  It is, at the present time, an ongoing latent trigger for the applicant.  I bear in mind that this trigger may erupt in other contexts as well, not just behind the wheel of a car. So, all in all, I assess the nature of the harm to individuals and the Australian community as very serious.

1. I do not regard the risk that the applicant poses to individuals or the community as high, however.  The sentencing Court noted the applicant’s genuine remorse in respect of the manslaughter offence. The crime was not intentional in the sense that the car was not driven with the express intention of inflicting harm, although it was deliberately driven in the direction of a group.

2. I believe that both gaol and immigration detention have brought home to the applicant how his deliberate misconduct on earlier occasions involving the property and assault offences have led him to jail.  That is true also of the manslaughter offence.  There was found to be, overall, a culpable lack of care in the applicant’s behaviour insofar as the latter offence is concerned.  I regard the effect of gaol and immigration detention, which has been very long in this case, as offering both strong rehabilitative effects and a very powerful deterrent to the applicant. I accept that his self-view (namely, that he is a different person at 31 to the callow 21-year-old who committed the offences in 2011) is appropriate and balanced.  I accept that there were multiple occasions in gaol, and further occasions in immigration detention, where poor behaviour has been displayed by him; but I do regard these as very much in the past insofar as the present risk the applicant poses to society is concerned.

3. I also accept  the applicant’s motivation to play a meaningful part in his daughter’s life.  This evidence was given honestly, in my opinion, and persuasively.  The applicant gave evidence that he is strongly motivated by the best interests of his daughter, who lost her mother in tragic circumstances (she was killed by her new partner while the applicant was detained). The applicant is very interested in the upbringing of his daughter.  He made it clear that her interests – rather than his own – were paramount in his mind. Remaining at liberty in Australia will be key to the applicant building the most meaningful relationship he can with his daughter. Of course, given what appears to be a serious rift between the applicant and those having present  custody of the child, it may end up being the case that the applicant will not fulfil his ambition, or at least not as fully as he might wish. Nevertheless, it remains a powerful motivating factor in his life.

4. I also regard his immediate plans to settle in Western Australia as conducive to giving him the best opportunity he can have to lead a law-abiding life.

5. I bear in mind, however, that I must have regard to this lower level of risk “cumulatively” with the nature of the harm to individuals or the Australian community.  I do so.  The harm the applicant has caused in the past is serious.

6. The respondent did not suggest family violence is relevant as a primary consideration.

7. I turn now to the best interests of minor children. I note that I accept the submissions by the respondent that appear at paragraphs [32] to [33] of the respondent’s Statement of Facts, Issues and Contentions.  I shall not repeat them.  This consideration weights somewhat in the applicant’s favour.

8. I must have regard to the expectations of the Australian community. I note that paragraph 8.4(1) records that the Australian community would, “as a norm”, expect the applicant not to remain in Australia. Subparagraph (2) is also particularly relevant because the applicant has caused the death of a child by his act. I note that these expectations apply whether or not the applicant poses a measurable risk of causing physical harm. I also note that I am not to assess community expectations for myself. I accept that this consideration weighs against the applicant.

9. I must have regard to so-called “other” considerations under paragraph 9. I accept that non-refoulement obligations do not apply, given the recent amendments to the Act, which prevent refoulement when there has been a finding that protection obligations are owed.  The applicant is accepted by the respondent to satisfy the preconditions for the grant of a protection visa, and so I accept that he may not be refouled to Sierra Leone by law.  For the same reason, I do not believe that the “extent-of-impediments-if-removed” consideration applies either. I have no evidence before me concerning any impact of my decision on any victims and so this consideration counts neutrally.

10. The other considerations to which I may have regard are not listed exhaustively in paragraph 9.  I believe it is appropriate to engage with the likely consequences of a decision by me to affirm the decision under review.

11. The respondent accepted in its Statement of Facts, Issues and Contentions at [43], and I believe properly so, that the applicant will face most likely indeterminate or indefinite detention in an immigration detention centre as the legal consequence of any decision by me to affirm the decision under review.

12. This is a matter which the respondent concedes weighs heavily in the applicant’s favour. This concession is properly made in my view.  In this regard, I refer to the joint decision of the plurality in the full Federal Court’s decision in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463. There is a strong emphasis in the plurality’s judgment on the liberty of the subject as being a matter of very real concern.[6]  The prospect of “indefinite detention” as that term was expounded by the plurality is not a factor that automatically predominates in all cases ‒ that is quite clear.  But it is a matter that ought to be given very serious consideration where it does arise.

    [6] See, for example, at [123] of the plurality’s judgment.

13. In this case, it has not been put to me that the applicant’s ongoing confinement to immigration detention is likely to be broken any time soon, were I to affirm the decision under review. It could be broken by the grant of another visa to the applicant (for example under section 195A of the Act), but I have no evidence before me that suggests such a course would be followed by the Minister in this case if plans to resettle the applicant in a third country did not come to fruition after a reasonable period of time. That remains a matter of real concern to me. I note in this regard that the applicant has already had a protection visa application refused under s 501(1), and so the prospect of being granted another visa instead would appear uncertain to say the least. There is no evidence before me of the likelihood of the applicant being resettled in a third country within a reasonable period of time.[7] I cannot of course simply assume that that would occur.

    [7] The respondent did not take up the invitation to seek instructions in respect of the matter.

14. I decline to impute to the Minister an intention to confine the applicant on a quasi-permanent basis in immigration detention because that would be to impute to the Minister an intention that is not consistent with the respect of fundamental human rights. That said, the fact remains, as conceded by the respondent, that the indefinite detention of the applicant is likely if I affirm the decision under review.

15. As I have indicated, there has already been a considerable time, comprising some years now, that the applicant has spent in immigration detention following the date of his application for a protection visa. If I affirm the decision under review, there will be a further period of detention while third-country options are explored. 

    WEIGHING THE CONSIDERATIONS

16. I turn now to weigh the various considerations.  I accept that, under the Direction, primary considerations do “generally” carry greater weight than the so-called other considerations, but not inevitably so. I bear also in mind also that the decision I reach must have regard to the individual circumstances of each.  The applicant’s offences, where they have been deliberately committed, are very serious.  They involve the deliberate infliction of physical harm or economic loss on community members.  The offending involving manslaughter is very serious indeed because of the consequential loss of life, but it is also right to take into account the circumstances of its commission as found by the sentencing Court.  They were highly unusual.  The Court did not find any intent to deliberately harm the victim.   The risk of harm to be caused by the applicant in the community in this latter regard is to be measured by an assessment of risk that he will suffer another episode that causes him to behave in an entirely inappropriate way.  I accept that that risk is, at the present time, indeterminate, but the applicant is a more mature man than he was when the offences were committed, and I believe that he will do what he can to avoid situations where his PTSD is at risk of resurfacing.  Nevertheless, the consequences can be catastrophic, and the Direction requires me to have regard to that plain fact independently of risk.

17. I accept that the interests of minor children carries some weight in the applicant’s favour; but it is the prospect of indefinite detention that looms large in the evaluation exercise I must undertake in determining which way the discretion under section 501 should be exercised. I do not regard the prospect of indefinite detention as one that automatically overrides considerations favouring the continued detention of an applicant, as I have said.  However, in this case, I am clear that the liberty of the applicant must be given substantial consideration, particularly in circumstances where his application for a protection visa was made as long ago as late 2018 (from immigration detention and not gaol), and where the continued deprivation of his liberty on an indefinite basis is accepted to be a likely consequence of any decision to affirm the decision under review.

    DECISION

18. In my opinion, weighing all the considerations, I believe the correct or preferable decision, on balance, is to not refuse the applicant’s protection visa application under s 501(1) of the Act. Having reached that decision, I shall set aside the decision under review and substitute a decision that the applicant’s application not be refused under s 501(1) of the Act.

    I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta

    ………[Sgnd]……..……………

    Legal Associate

    Dated: 20 September 2022

Date of hearing:	11 and 12 August 2022
Advocate for the Applicant:	Mark James, Castan Chambers Shannon Finegan, Dawson Chambers
Advocate for the Respondent:	Rachel Francois, Level 22 Chambers