HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4377
•8 November 2022
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4377 (8 November 2022)
Division:GENERAL DIVISION
File Number: 2022/6879
Re:HSRN
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:8 November 2022
Place:Sydney
The decision under review is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s visa.
..................................[SGD].....................................
The Hon. Dennis Cowdroy AO KC, Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – applicants long period of residence in Australia – strength, nature and duration of ties to Australia – impediments to removal – decision set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Minister of Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234Cotterill v Minister for Immigration and Border Protection [2016] FCAFC
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
8 November 2022
The applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 15 August 2022 not to exercise the power under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the mandatory cancellation of the applicant’s Transitional (Permanent) (Class BF) visa under s 501(3A) of the Act.
On 15 August 2018, a delegate of the Minister cancelled the applicant’s visa because the delegate was satisfied that the applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: s 501(3A)(a)(i) of the Act.
The applicant sought review of such decision. By the notification dated 16 August 2022 a delegate of the respondent made a decision not to revoke the mandatory cancellation.
On 25 August 2022, the Applicant applied to the Tribunal for review of that decision (“the decision under review”). The hearing before the Tribunal was held on [REDACTED].
The applicant has also applied for a Protection Visa. The application was founded upon the contention that the applicant would suffer if returned to Portugal because of his homosexuality and because he has been diagnosed with Human Immunodeficiency Virus (“HIV”). On 18 July 2019, the delegate of the Minister found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in section 36(2)(aa) of the Act. The applicant sought review of such decision before the Tribunal, but by decision record dated [REDACTED], the Tribunal affirmed the decision of the Minister not to grant the applicant a protection visa. However, proceedings were then instituted before the Federal Circuit and Family Court of Australia. The Tribunal has no details of the current status of those proceedings.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
Facts
The Applicant, who is 57 years of age, was born in Santa Cruz, in a region that has since become the Autonomous Region of Madeira. The Applicant is a citizen of Portugal by birth and is a non-citizen of Australia. On 28 April 1971 the applicant was granted a Transitional (Permanent) (Class BF) Visa.
EVIDENCE
The Tribunal has had regard to the following statements:
(a) the applicant’s Statement of Facts, Issues and Contentions dated 23 September 2022
(b) statement of the applicant dated 11 October 2022
(c) statement of Ms FF, the applicant’s sister dated 12 October 2022
(d) the applicant’s Reply dated 19 October 2022
(e) letters of support contained in the G-Documents at F1 to F20.
Oral evidence
The Tribunal heard oral evidence from the Applicant and from the applicant’s elder sister, Ms FF.
Medical evidence
A statement in the form of a letter from the applicant’s lawyers addressed to the National Character Consideration Centre dated 15 July 2022 together with annexures has been provided. Incorporated in the annexures is a letter of Dr PF dated 3 April 2019 relating to the applicant’s mother and report of Dr A, Forensic Psychiatrist, dated 1 June 2022 relating to a clinical evaluation conducted with the applicant through audio-visual connection on 22 April 2022.
Records of the International Health and Medical Services (IHMS) relating to the treatment provided to the applicant during his period of detention have also been provided to the Tribunal.
APPLICANT’S BACKGROUND
The applicant was born in what has since become the autonomous region of Madeira in 1965 and came to Australia at approximately 10 years of age. He is a citizen of Portugal by birth and a non-citizen of Australia. The Applicant attended school in New South Wales and had experienced difficulties with the English language. He arrived in Australia with his parents and five siblings, of which the applicant was the fourth eldest. The applicant’s parents remained together but his father died four years ago. After leaving school, the applicant worked at a bakery for a year and then went into the construction industry as a labourer and continued that occupation for approximately 15 years. Such employment continued sporadically thereafter, interspersed with periods of imprisonment. The applicant was taken into detention on 24 March 2019 following completion of the non-parole period of his custodial sentence.
The applicant has never married but has had a relationship with a same-sex partner which extended over several years. In 2007 he committed the most serious offence namely sexual intercourse without consent. The Applicant was sentenced to a period of six years imprisonment with a non-parole period of three years for this offence. In 2017 the applicant was charged with causing or set fire to land of another or the Crown (“the fire offence”). In the same year he was convicted and given a s 9 bond for larceny and goods in personal custody suspected being stolen namely a dog tag and earrings. In 2018 the applicant was sentenced to imprisonment for a period of six months for the offence of “remaining on land with intent to commit indictable offence". An assault charge accompanied such charge and was taken into account in the sentencing. The applicant's other offending is referred to in the schedule below.
A chronology of the applicant’s offending follows:
Date of offending
Offence
Sentence
Date of conviction
1.
Unknown
Unlicensed Driver
$150 fine
15.5.1990
2.
Unknown
Supply false information
$150 fine
15.5.1990
3.
[REDACTED]
Sexual intercourse without consent
6 years imprisonment
[REDACTED]
4.
4.8.2006
Stalk/intimidate with intent to cause fear
physical/mental harm
$500 fine
26.4.2007
Enters custody 1.2.2007 / Leaves custody 27.7.2010
5.
25.09.2017
Possess prohibited drug
2 year - s 9 bond
2.7.2018
6.
October 2017
Cause or set fire to the property of another, or Crown
12 months imprisonment
25.6.2018
7.
16.10.2017
Larceny
2 year - s 9 bond
2.7.2018
8.
16.10.2017
Goods in personal custody suspected
being stolen
2 year - s 9 bond
2.7.2018
Enters custody 21.10.2017 / Leaves custody 20.4.2018
9.
20.10.2018
Common assault
Taken into account with below sentence
20.4.2018
10.
20.10.2018
Remain in building/land with intent to commit
indictable offence
6 months imprisonment
20.4.2018
Enters custody 26.5.2018 / Leaves custody and enters immigration detention 24.3.2019
As a consequence of the applicant’s sexual assault offence, the applicant was tried by jury in 2006 but the jury was unable to reach a majority verdict. At the second trial which commenced on [REDACTED], a verdict of guilty was returned on [REDACTED]. The Applicant received a sentence of six years imprisonment with a non-parole period of three years. At the conclusion of such sentence, the applicant received a warning letter that the commission of any future offences could place his visa at risk.
Sentencing observations
The Tribunal has considered sentencing observations which have been made available to the Tribunal relating to the most serious offences committed by the applicant.
Sexual intercourse without consent:
On [REDACTED], before the District Court of New South Wales, Criminal Jurisdiction at [REDACTED], Judge [REDACTED] referred to the circumstances leading to the offence. The transcript records that both the applicant and the victim, who were known to each other, had ingested alcohol and smoked marijuana and “speed” prior to the offence occurring. Having considered the evidence, his Honour stated that he regarded the conduct as falling below the middle range of the range of objective seriousness for such an offence. He noted that the applicant was 41 years of age and that he had become aware of his homosexuality at 14 years of age but did not disclose his sexual preference. He had lived in a relationship for several years with a same sex partner. He noted that the applicant had hitherto been of good character and that he had good prospects of rehabilitation. Accordingly he was sentenced to six years imprisonment with a non-parole period of three years commencing on [REDACTED] 2007 which expired on [REDACTED] 2010. His honour referred to the inordinate time which had elapsed between the date of the offence namely 31 December 2004 until the matter came before the Court for sentencing.
Setting fire to Crown Property (Fire offence)
In the [REDACTED], on [REDACTED], [REDACTED] the applicant was sentenced to the offence of causing or setting fire to the property of another or the Crown by Magistrate [REDACTED]. The applicant was unable to provide any explanation for his conduct other than the fact that he had lost his employment and began consuming the drug ice at the age of 51 or 52. The applicant claimed he was under the influence of ice when he set the fire and had no recollection of committing the offence. Magistrate [REDACTED] recorded that no person was injured. The Magistrate recorded that the applicant did not have a lengthy record and that there were some pending serious matters. For this reason, a custodial sentence was imposed namely 12 months imprisonment with a non-parole period of nine months.
Records have been provided to the Tribunal which suggest that there may have been incidents involving altercations involving the applicant whilst serving his sentences or whilst in detention. However, the material available to the Tribunal does not lead to the conclusion that the applicant has been responsible for any untoward conduct during these periods.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
primary consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community, decision makers should keep in mind 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. In this respect, decision-makers should also have particular regard to the principle that entering or 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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were serious, one being a sexual crime committed against a male. The other serious offence is the fire offence. There is no doubt that the applicant’s conduct in each case is serious.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the danger which the applicant might pose because of his inability to prevent himself from committing the offence of sexual intercourse without consent in 2004.
(b)The danger that the applicant might pose because of his conduct in lighting a fire in a public place which could have had catastrophic consequences, even if applicant was affected by drugs at the time of the offence
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Finding on Primary Consideration B
The Tribunal finds that this consideration is not relevant as there is no evidence of family violence committed by the applicant.
primary consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Finding on Primary Consideration C
The applicant has no children and there is no children in respect of which the applicant is in in loco parentis. The applicant has nieces and nephews, all of whom are now adult. He has three grandnieces or nephews but does not know their names. However, photographs have been produced Tribunal. Although there is no explanation of the identity of the children, it appears that the applicant has been in various family functions with the grandnieces or nephews have been present and such photographs depict a happy relationship between the applicant and such children. Accordingly, this consideration is relevant only to the extent that it might be inferred that if the applicant were removed from Australia, the grandnieces and there is good be deprived of another person who might be of benefit in their upbringing. Such consideration weighs slightly in favour of revocation.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Finding on Primary Consideration D
The applicant gave evidence which at times was inconsistent. For example, he stated that he had not taken drugs for the past seven years. However, the records of International Health and Medical Services (“IHMS”) recorded that the applicant had been using drugs until April 2020. Further, the applicant claimed that with respect to his conviction for the sexual assault, he believed that the victim was consenting to the sexual act. He did not agree with the jury verdict. In an interview with senior specialist psychologist with the Corrective Services NSW made on 8 October 2010, it was recorded that the applicant initially denied responsibility for his offending but during the course of treatment he accepted some responsibility and then recognised that consent of the victim for one type of sexual activity did not imply consent for a different type of sexual activity which led to his conviction. The applicant's realisation arises from the fact that it appears shortly before the offence was committed, the victim had acquiesced to one kind of sexual activity but not sexual intercourse.
It is not permissible for the Tribunal to impugn the conviction on which a deportation order is based: see Minister of Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at [25]. However, the task of the Tribunal in determining whether to exercise the discretion to refuse the visa is to determine and weigh up all the circumstances both for and against. As referred to in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 29 at [91], no legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved.
In respect of the fire offence, the applicant claimed that the grass in the park where the fire was lit was untidy and he wanted to clean up the area. However, before the Local Court he claimed to have no memory of the events leading up the lighting of the fire.
With respect to the offence of break and enter and remain on property the applicant provided an explanation that he had left his bicycle in the yard of the house of a friend. He went to retrieve his bicycle a fortnight later and could not find it and believed that his friend had sold it. When the applicant was found in a shed at the rear of the property, he resisted apprehension and picked up a washing machine lid which he proposed to use in the event he was assaulted.
In fact there was no physical injury caused to the person apprehending the applicant.
Report of Dr A
The report of Dr A dated 1 June 2022 provides an insight into the applicant’s medical condition.
From the history elicited by Dr A from the applicant, the applicant first had a mental health professional assessment when he was in detention. He had commenced to use alcohol about 18 years of age and tended to drink on weekends to the point of intoxication and blackouts. Prior to his gaol sentence, the applicant was taking methamphetamines. He commenced cannabis when approximately 20 years of age, then cocaine for a period of two years before resuming methamphetamines at about age 25 to age 40. He stated that he used drugs because he was “gay” and could not accept it having realised at about 15 years of age that he was homosexual. He hid his drug use and homosexuality from his family but when he was 30 years of age, he made his preferences known. The applicant was found to have [HIV] at the age of 31 or 32 and became socially withdrawn and depressed. He commenced using cannabis to relieve his burden. The applicant continued to drink. The applicant’s sexual offence occurred in 2004 in circumstances where the sentencing remarks record that the applicant and the victim had been drinking and consuming drugs for some period prior to the offence occurring.
The applicant informed Dr A that he threw a match into a paddock of dry grass near a shopping centre and was sentenced for such offence. In respect of the break and enter offence, the applicant stated that he was using cocaine at that time. The applicant has not been diagnosed with any other major health issues.
Dr A noted that the IHMS report records that the applicant was suffering from depression following feelings of persecution, bullying from other detainees because of his sexuality and his fear for his personal safety. In May 2020 an IHMS psychiatrist reported that the applicant was suffering a stress and anxiety reaction due to certain situational circumstances. On 4 June 2020 another IHMS counsellor reported that the applicant threatened self-harm and he was then transferred to [REDACTED] Hospital for assessment and later discharged. On 18 June 2020 the applicant was reviewed by and IHMS psychiatrist who recorded that the applicant displayed depressive symptoms. On 18 June 2020 the applicant was admitted to [REDACTED] Hospital for a mental health assessment and remained until 19 October 2020 where he was diagnosed with a major depressive disorder and was treated under the Mental Health Act 2007 (NSW).
Throughout the period from November 2020 to 2021 the applicant has continued to receive psychiatric treatment including admissions to [REDACTED] Hospital on 27 March 2021 where he received 18 sessions of ECT treatment.
Dr A noted that several letters of support establish that the applicant has “no family or friends or job opportunities overseas”; that he has lived with his mother with whom he is a close bond and that she was now struggling without him. The applicant lost his close brother-in-law suddenly which brought back memories of the passing of his father. One letter stated that the applicant did not know how to deal with his homosexuality and tended to be the type of person “that put on a brave face”.
Mental diagnosis
Significantly, Dr A concluded that the applicant manifested a mood disorder – a chronic major depressive order or a persistent depressive disorder. Dr A stated relevantly:
“My impression is that he likely has had a relatively persistent depressive condition, with periods of more significant depression, meeting criteria for a diagnosis of a major depressive episode (this is most evident on his more recent admission to a psychiatric hospital requiring ECT for treatment).”
If the applicant were relocated to another country, Dr A opined:
Your client would be at a significant disadvantage as compared to a person of normal mind given his recurrent and/or persistent depressive condition. His disadvantage is further compounded by what appears to be cognitive difficulties as well is his HIV, which is at risk of impacting on his mental state going forward. Your client has not lived in Madeira since age 10, he has limited command of the language, he has no significant social supports that can be necessarily relied upon (even if assumptions can be made), his prospect of employment in my view are limited, he would move into an environment already as a person who tends to have difficulties with interpersonal relationships and is anxious about mixing with people and anxiety and he is likely to become relatively reclusive and unsupported, all of which will aggravate his mental state and is at risk with aggravation of depression. There would also be the risk of harm to self. All the above factors are associated with increasing risks for deterioration in mental state and aggravation of mental conditions. In my view if this man is deported, he is likely to experience a deterioration in his mental state with aggravation of his mental condition.
Based upon these factors, the community expectation, whilst deploring the offences with which the applicant has been convicted, would balance such feelings with the fact that the applicant is, and it appears has been for a considerable time, mentally unwell. Accordingly, this factor would weigh in favour of revocation of the decision to cancel a visa
Other considerations
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
On the present application, the issue of non-refoulment would not appear to arise. However, the applicant has drawn the Tribunal’s attention to the grounds relied upon in his protection visa application. In such application, the applicant claimed that if he were returned to Portugal or Madeira, he would be substantially disadvantaged because of his homosexuality and also that there would be inadequate facilities available for treatment for his HIV and his mental condition.
The evidence satisfied the Tribunal when hearing the Protection Visa Application that Portugal was one of the pioneer countries who in the WHO European Region was moving towards ending AIDS by 2030.
Research in 2013 provided to the Refugee Review Tribunal in earlier proceedings found that there was no information to indicate that the lesbian, gay, bisexual, transgender and intersex (LGBTI) community in Portugal was subject to adverse treatment on the grounds of their sexuality.
The applicant’s Counsel submitted that the conditions prevailing in Portugal may not necessarily be those prevailing in Madeira which is an autonomous region, and referred to a publication entitled Health Systems in Transition; Portugal; Health System Review 2017 (‘Article 1’). In such a publication a sentence provides:
“The Azores and Madeira, as autonomous regions, have broad powers for their own health care planning and management.”
Another article filed by the applicant and titled SER+ Associação Portuguesa para a Prevenção e Desafio à Sida, The People Living with HIV Stigma Index, Portugal 2013 (‘Article 2’) also referred to discrimination in health care services in that 79 respondents reported being denied health care due to their HIV status.
In Article 1 another sentence reads:
“Although there is a strong legal and political commitment to social rights, the impact of social determinants is not equitable in Portugal and health inequalities remain one of the key problems for the NHS. These inequities are determined by geography (people from the interior regions have more difficulties in accessing health services); income (individuals with low income face a greater challenge when paying for pharmaceuticals and when accessing health services not covered by the NHS, such as oral health); and health literacy (access to the internet and, consequently to a lot of health - related information available online, is more difficult for the older populations and for those with a low educational level).
The Conclusions in article 2 stated inter alia
“1062 respondents in the study reported 1403 incidents of discrimination during the previous 12 months. More than 60% of these (857) with slander, insult or coercion. An additional 22% (312) were for aggravated assault and 17% (234) for family, social or religious exclusion.”
However, the information provided on the applicant’s protection visa application indicated that access to health benefits applied throughout Portugal including Madeira: as referred to in a publication entitled Health Care in Portugal, including Madeira”, National Health Service (United Kingdom) 28 January 2019, 20190416105251 which specifically includes Madeira.
The Tribunal has recorded the above in view of the claims made by the applicant concerning non-refoulement. The Tribunal, on this application, is not satisfied that there is sufficient material to form any finding that return to the applicant’s country of origin would pose a serious impediment.
Extent of impediments to the applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen 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, being 57 years of age, and being in poor mental health, would experience difficulty in settling in a country which is essentially foreign to him. In addition to the above HIV illness, there is evidence that the applicant is suffering from Diverticula Disease, as identified by Dr R when performing a colonoscopy upon the applicant. A CT scan has shown the presence of cysts on his liver and kidney as reported in an IHMS report dated 14 August 2019.
The applicant is a Portuguese citizen, there is no evidence concerning any substantial language or cultural barriers, although it should be noted that Dr A reported that the applicant has “limited command of the language” with the language of Madeira. Nor is there any evidence of any social, medical and/or economic support available to him if he were returned to his home country. Furthermore, the applicant has not visited his home country since he arrived in Australia aged 10 years.
The Tribunal finds that this consideration weighs in favour of revocation.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no specific evidence of any harm caused as result of the applicant’s criminal conduct. His Honour [REDACTED] observed, when sentencing the applicant for such offence, that in the absence of evidence, it would be unfair to take into account psychological injury of emotional harm as an aggravating factor under section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), however the court presumed that victims of sexual assault would be likely to suffer psychological injury and emotional harm.
There is no evidence that any harm was caused to any person as a result of the fire lighting offence.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for more than 40 years and has never returned to Portugal. His brothers and sisters and mother reside in Australia. There is no evidence of any links with any close family members in Portugal.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia weigh strongly in favour of the revocation.
Impact on Australian business interests
This consideration is not relevant in this matter.
Is there “Another Reason”? SECTION 501ca(4)(B)(II)
The Tribunal considers that there are significant impediments to the applicant’s visa the remaining cancelled. They are:
(a)The applicant has never left Australia since arriving here at age 10 years; he has always lived in the [REDACTED] area; then a period of living alone. Most recently he has resided with his mother.
(b)All the applicant’s sisters and brothers and mother live in Australia together with his nieces and nephews and grand nieces and nephews. That is, the whole family unit is in Australia and there is no evidence of any close connection with any other family member in Portugal.
(c)The applicant has very significant health issues, the most serious of which is his HIV and his mental illness in respect of which he is receiving ongoing treatment;
(d)The Tribunal has considered the nature of the offences with which he was charged. Whilst the evidence is unclear, there is evidence to suggest that the offence of sexual intercourse was associated with the prior consumption of drugs. The trial judge also referred to references provided in support of the applicant and stated:
Generally they confirm that the offender was a civic minded person who cared for others and assisted local charities, it appears he was well regarded and respected in the local community.
(e)The trial judge also noted that the applicant’s former partner had been killed in a car accident and that he had been devastated by his loss;
(f)With respect to the fire lighting conviction, Magistrate [REDACTED] observed in his sentencing remarks:
“It is a serious case but it is one where he was at a very, very low point in his life and at the end of the day he does accept his guilt and has assisted the prosecution by telling them with good notice that the matter won’t proceed to hearing today”.
(g)The remaining offences were, as evidenced by the penalties imposed, relatively minor, as evidenced by the sentences or penalties imposed.
(h)If returned to either Portugal or Madeira, it is not known whether there will be continuity of medical treatment which is currently available to the applicant both in relation to his psychiatric condition and his HIV;
(i)The applicant, throughout his approximate 47 years in Australia, experienced his first gaol sentence in [REDACTED]. Thereafter he is record shows that he was relatively crime free for a period of almost 10 years. In evidence, his sister considered that his relapse into crime resulted from the fact that he had found out that he was HIV positive and subsequently, both his father and his brother-in-law, with whom the applicant was very close, passed away and thereby the applicant was deprived of his two major support networks;
(j)The applicant has paid his debt to society by virtue of his prison sentences.
(k)The question for the Tribunal is whether he is likely to pose a danger to the community in the future. Whilst there is no medical evidence available, it has not been suggested that the applicant does pose such a threat. In 2010 the applicant was assessed at the low – medium risk category but because the nature of the offence (sexual assault) he was assessed as medium – high level in accordance with the Service guidelines regarding the management of sex offenders. In 2018 the applicant was assessed in a pre-sentence report as being at medium risk of reoffending.
(l)The many letters of support indicate that the applicant is not a violent person. None of the applicant’s offending has been directed at strangers, and there is no evidence of any physical harm being occasioned to any strangers to the applicant;
(m)generally the applicant has been in gainful employment whilst in Australia as a labourer on construction sites in New South Wales and in the Australian Capital Territory for a period of approximately three years;
(n)cancellation of the visa, take into account each the above considerations, could be construed as punishment: the Tribunal does not consider that, taking into account the offences for which the applicant has been convicted, and the circumstances surrounding them, that cancellation of his visa is justified;
Conclusion
In weighing the competing considerations and the weight to be given to all relevant considerations, primary consideration A supports non-revocation; primary consideration B is not relevant; primary consideration C is slightly in favour of revocation and primary consideration D is strongly in favour of revocation.
The Tribunal considers that the applicant is a person who requires care and mental health treatment. There is evidence that the applicant’s mental health is likely deteriorate if he is deported and could lead to his suicide.
For these reasons, the Tribunal is satisfied that there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
decision
The Tribunal finds that the correct and preferable decision is that the decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO KC, Deputy President
.................................[SGD].......................................
Associate
Dated: 8 November 2022
Date of hearing: 25 October 2022 Date final submissions received: 26 October 2022 Counsel for the Applicant: Mr R Chia Solicitors for the Applicant: Mr J Alfaro, Alfaro Law Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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