HYPR and Minister for Immigration and Border Protection (Migration)
[2016] AATA 864
•31 October 2016
HYPR and Minister for Immigration and Border Protection (Migration) [2016] AATA 864 (31 October 2016)
Division
GENERAL DIVISION
File Number(s)
[redacted]
Re
HYPR
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President S E Frost
Date 31 October 2016 Place Sydney The Tribunal affirms the decision to refuse to grant a visa to the Applicant.
.........................[sgd]...............................................
Deputy President S E Frost
Catchwords
IMMIGRATION AND CITIZENSHIP – visa refusal – application for Protection visa – failure to pass character test – substantial criminal record – discretion to refuse applicant's visa – Ministerial Direction No. 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – broad middle ground of Australian community – non-refoulement obligations – decision under review affirmed
Legislation
Migration Act 1958 (Cth), ss 499, 501(1), (6) & (7)
Cases
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Secondary Materials
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Deputy President S E Frost
31 October 2016
INTRODUCTION
The Applicant is a 32-year-old citizen of South Sudan. He came to Australia in October 2003 at the age of 19 with his mother, one sister and three brothers, on a subclass 202 Refugee and Humanitarian visa.
In April 2013 a delegate of the respondent Minister cancelled the Applicant’s visa on character grounds. An application to review that decision was made to the Tribunal but the application was out of time.
In January 2014 the Applicant lodged an application for a protection (Class XA subclass 866) visa but the application was refused. The Applicant applied to the then Refugee Review Tribunal (RRT) for review of that decision. The RRT found that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention[1]. Accordingly the application was remitted to the Department of Immigration and Border Protection with the direction that the Applicant satisfied s 36(2)(a) of the Migration Act 1958 (the Act).
[1] The 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol.
When the protection visa application was reconsidered, a delegate of the Minister refused the application, again on character grounds. The Applicant has applied to the Tribunal for review of that refusal decision.
THE LEGISLATION AND THE MINISTERIAL DIRECTION
It is not disputed that the Applicant, having been sentenced to a term of imprisonment of 12 months or more, has a ‘substantial criminal record’: s 501(7)(c) of the Act. It follows that he does not pass the ‘character test’: s 501(6)(a).
The grant of a visa may be refused if the Minister (or the Tribunal on review) is not satisfied that the person applying for the visa passes the character test: s 501(1) of the Act. Here, the Applicant concedes that he does not pass the character test. The question for the Tribunal is whether to exercise the discretion to refuse to grant the protection visa the Applicant applied for.
Section 499 of the Act empowers the Minister to give written directions about the exercise of powers under the Act, including the discretionary power to refuse to grant a visa on character grounds. The Minister has made written directions in an instrument entitled Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction). I must take the Direction into account in reviewing the delegate’s decision, since the Tribunal is a ‘decision-maker’ for the purposes of the Direction: Annex B – Interpretation.
THE APPLICANT’S HISTORY
The Applicant was born in 1984 in Juba, in what was then the state of Sudan but is now located in South Sudan.
In about 1996, when he was around 12 years old, the Applicant and his older brother were taken by rebel soldiers to a camp to be trained as child soldiers. They stayed and trained there for six weeks, during which time he claims to have been tortured, burnt and beaten, and to have endured emotional and physical torment and threats to his life. He and his brother eventually escaped. After their escape it took around two days for them to find their family again.
Prior to this, in 1992, when the Applicant was about 8 years old, his father was killed during the civil war.
In about 1994, the Applicant’s mother moved her family to Khartoum, where the Applicant started school. In about 2000, the family left Khartoum for Egypt, where the Applicant started working. While they were in Cairo the family members were granted subclass 202 visas by the Australian Embassy. They came to Australia, arriving in Sydney and then travelling on to a regional location, where they settled.
In 2004, the Applicant started attending high school in his local area, commencing in year 10 even though he was already 20 years old.
In about the middle of 2004 a neighbour, aged in his 50s, introduced the Applicant to alcohol. It was around this time that the Applicant started getting on the wrong side of the law.
His early offending was not particularly serious. He was charged with some property damage offences and they were dealt with under ss 9 and 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) with the Applicant entering into good behaviour bonds. On one of those occasions, in July 2004, the court imposed a condition that the Applicant attend a program, or undertake counselling, in relation to alcohol abuse.
The offending soon escalated. By October 2004 the Applicant appeared in court on charges of common assault, contravene apprehended domestic violence order, and resist or hinder police officer in the execution of duty. He was placed on another bond, which included 12 months of supervision by the NSW Probation Service.
In January 2005 the Applicant came before the Local Court again, charged with driving with high-range Prescribed Concentration of Alcohol (PCA), for which he was sentenced to imprisonment for seven months (suspended on entering a bond), fined $1,000, and had his licence disqualified for three years. In October the same year he was convicted of a number of further offences including assault occasioning actual bodily harm (12 months imprisonment, suspended).
Since then, in New South Wales and later in the Australian Capital Territory, he has been convicted of various offences, including larceny, use offensive weapon with intent to commit indictable offence, assault occasioning actual bodily harm, take and drive vehicle without consent of owner, common assault, drive while disqualified (multiple offences), mid-range PCA (multiple offences), drive unaccompanied on a learner licence, low-range PCA, drive uninsured vehicle, and high-range PCA (multiple offences). Over the period from 2006 to 2013, the Applicant has received prison sentences of 13 months, 12 months (multiple), 10 months, 8 months, 6 months, 4 months, 3 months, 2 months, 1 month, and been fined several thousand dollars.
Included in his criminal history is a particularly disturbing event, namely his assault on his infant daughter (then aged eight months), of which he was convicted in October 2009. Although he maintains his innocence, he was convicted of the offence and sentenced to 10 months imprisonment with no non-parole period.
The Applicant was released from criminal custody in May 2014 and immediately taken to Villawood Immigration Detention Centre (IDC) in Sydney. In 2015 he was transferred to Christmas Island and later that year he was transferred to Yongah Hill IDC in Perth. He participated in the hearing in this Tribunal by video link from Yongah Hill IDC. By the time of the hearing on [redacted], the Applicant had been in immigration detention for exactly 900 days.
OUTLINE OF THE DIRECTION
The purpose of the Direction is stated to be ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act …’. Its purpose is not, and cannot be, to direct decision-makers to exercise their powers in a particular way, either in favour of or against visa holders or visa applicants. The Direction can only tell decision-makers how they must go about exercising their powers. As is stated in clause 6.1(2):
Where the discretion [in section 501 to refuse to grant a visa] is enlivened, the decision-maker must consider whether to exercise the discretion … given the specific circumstances of the case.
The Principles set out in the Direction are said to ‘provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501 …’: clause 6.2(3). Those Principles are found in clause 6.3:
(1)Australia 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.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1) of the Direction explains that, ‘[i]nformed by the principles in paragraph 6.3 above’, a decision-maker ‘must take into account’ the considerations in the relevant Part of the Direction.
Clause 8 proceeds to explain how the considerations should be taken into account:
…
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part B of the Direction sets out the considerations to be taken into account in deciding whether to refuse a non-citizen’s visa. As foreshadowed, the considerations are separated into Primary considerations and Other considerations.
The Primary considerations (clause 11(1)) are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian Community.
Clause 12 deals with Other considerations. Although the clause is headed ‘Other considerations – visa applicants’, the text of subclause (1) contains an obvious error. It provides:
In deciding whether to cancel (sic) a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.
One assumes that the word ‘cancel’ in the first line should instead be ‘refuse’.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
The Applicant’s criminal offending has been significant and unrelenting. It commenced within a few months of his first arrival in Australia.
There have been instances of assault (including against his infant daughter), sometimes with actual bodily harm. He has had apprehended domestic violence orders taken out against him. There have been repeated instances of PCA driving offences. On many occasions he has driven while unlicensed or, when holding a learner’s licence, without an accompanying qualified driver.
I find that much of his offending has been caused by alcohol abuse.
The Applicant has apparently undertaken a number of courses or programs dealing with his alcohol problems. He said he had done about eight courses and that he was still doing them even now, while he is in Yongah Hill IDC. He said they have been helpful but objectively they seem to have been of marginal assistance, since his criminal offending has continued over the years and, if anything, worsened.
In the context of this Primary consideration, I am instructed by clause 11.1 of the Direction that I should give consideration to the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.
The fact that the Applicant has engaged in violent crimes, including one against a vulnerable member of the community (his infant daughter), the level of sentence imposed by the courts for the crimes he has committed, the frequency of his offending and the apparent trend of increasing seriousness, all point to a finding that the likelihood of his re-offending is at least moderate, and more likely significant. There is little information or evidence from independent and authoritative sources that would tend to undermine a finding of that kind.
There is, however, some evidence that the South Sudanese community in his local area is willing and able to monitor the Applicant and guide his conduct if he is released from immigration detention and allowed to reintegrate into the community.
A member of a local community organisation indicated to the Tribunal in oral evidence that the organisation is available to support, protect and encourage members, and especially young members, of the community. He said it is their duty to call on all community members to come and help. He explained that they all came to Australia as refugees, from a country where education is practically unavailable and there is no rule of law. As an organisation they meet regularly to carry out various cultural activities. They encourage people to understand and commit to the law of Australia.
That witness explained that the organisation was not active when the Applicant previously lived in the area and his criminal offending commenced. The witness said about the Applicant, ‘He will not do any crime again’ and ‘We are ready to support this boy’. He also confirmed that the other young men the Applicant used to associate with are no longer in the town.
I do not doubt the genuineness of that witness’s commitment, nor that of the community he represents. Nevertheless, given the Applicant’s criminal history and his past inability to abide by the law despite multiple warnings from sentencing courts, I must conclude that there is at least a moderate likelihood that the Applicant will re-offend, and the risk to the Australian community should he do so is significant, given the nature of his previous offences.
This consideration weighs heavily in favour of refusing the Applicant a visa.
The best interests of minor children in Australia
The only minor child in Australia whose interests must be considered is the Applicant’s daughter, now aged 8.
The Applicant has had virtually no contact with his daughter since the assault, when she was only an infant. She appears to have been cared for since then by her mother and the relationship between the mother and the Applicant is, at the very least, difficult, if not acrimonious.
Theoretically there is some scope for the Applicant to establish in the future some type of parental role in relation to his daughter, although whether that is practically possible remains unclear.
Ultimately it was submitted on behalf of the Minister that refusal of the Applicant’s visa is not in the best interests of the child.
In accordance with clause 11.2(1) of the Direction, I determine that refusal of the Applicant’s visa is not in the best interests of his daughter.
Expectations of the Australian Community
This consideration is dealt with in clause 11.3(1) of the Direction as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
In Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463 I referred at [77]-[81] to the difficulty in identifying precisely what the expectations of the Australian community are, beyond the self-evident one in the first sentence. At [80] I said:
[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.
There will be reasonable people in our community who think that the Applicant’s past offending is of such an egregious nature that he should be refused a visa. There will be others who, while not condoning his conduct, understand the difficult background he has experienced and would be willing to give him another chance.
The difficulty with joining the second group is that the objective evidence is not strong enough to support that course. It is not sufficient for the Applicant to say that he is now motivated, following his many periods of incarceration and his more recent detention in immigration detention facilities, to become and remain a law-abiding member of the community. There needs to be some objective indicators that the outcome he desires is likely to be achieved. He has had multiple opportunities in the past but the motivation to stay out of prison seems not to have been strong enough. When he first came before the judicial system he was dealt with leniently but he was unable to stay out of trouble. The rehabilitation courses that he took appear to have been only mildly successful, for his abuse of alcohol and his offending continued. Even the planned support of the South Sudanese community in his local area, while well intentioned, does not provide enough comfort that the Applicant will be able to turn his life around.
On balance, this consideration weighs in favour of refusing the Applicant a visa.
OTHER CONSIDERATIONS
International non-refoulement obligations
As a consequence of the RRT’s decision in 2014, Australia’s ‘international non-refoulement obligations’ are enlivened. The Minister acknowledges that it will not be open to the Minister to return the Applicant to South Sudan if the protection visa application is refused.
Nevertheless, as clause 12.1(2) of the Direction emphasises, the existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application. Clause 12.1(6) adds:
Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
With respect to the prospect of indefinite immigration detention, I note that in September 2014, while he was in Villawood IDC, the Applicant was the subject of a psychological assessment report undertaken by the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. The psychologist carried out two psychological measuring tests to identify the Applicant’s emotional and physical state: the Hopkins Symptoms Checklist-25 (HSCL-25) and the Harvard Trauma Questionnaire (HTQ). The results were:
·For the HSCL-25 –
oOn the Anxiety component, a score of 1.4, identifying the Applicant as having features of Anxiety (individuals with a score of >1.75 are considered symptomatic);
oOn the Depression component, a score of 3.5 (and thus >1.75), identifying him as symptomatic for Depression;
·For the HTQ – a score of 2.5 which identifies the Applicant as having clinical symptoms of PTSD (any score equal to or greater than 2.5 is considered symptomatic).
The Applicant was assessed again two years later (September 2016) in Yongah Hill IDC, when he scored 2.5 for Anxiety and 2.4 for Depression. The counsellor’s report included the following:
He also presents with some symptoms consistent with Post Traumatic Stress Disorder, i.e. frequent nightmares, appetite disturbance, sleep difficulty, flashbacks: traumatic memories and thoughts when reminded of his past and impairment of memory and concentration. Being in prolonged detention and the uncertainly (sic) of future has exacerbated his symptoms and therefore his coping is affected adversely.
…
[the Applicant] is engaged well with the counselling service provided by YHIDC. His continued detention without the prospect of release is likely to put him at high risk. …
Long-term detention is already showing deterioration in the Applicant’s mental state. I find that indefinite immigration detention will cause it to deteriorate further.
This consideration weighs significantly against refusal of the Applicant’s visa.
Impact on family members
The Applicant has a mother and siblings who live in Australia and there would undoubtedly be some emotional impact on them if the Applicant’s visa application were refused. However, there is no suggestion that those members of his family are or ever have been financially dependent on the Applicant. There was an earlier period, prior to and for some time after the birth of the Applicant’s daughter, when the Applicant and his then partner lived together and are likely to have had some financial interdependence, but that situation ceased at least seven years ago.
This consideration weighs only very marginally against refusal of the Applicant’s visa.
Impact on victims
There is no evidence of the impact that refusal of the visa application would have on specific victims of the Applicant’s offending. If anything, there would be a positive impact on the Australian community.
Impact on Australian business interests
This consideration does not appear to be relevant in the Applicant’s case.
ADDITIONAL ‘OTHER’ CONSIDERATIONS
The Other considerations specified in clause 12 of the Direction are not exhaustive. However, I have not identified any additional ‘other considerations’ relevant to this case.
OVERALL ASSESSMENT OF THE APPLICANT’S CASE
Having regard to the considerations in the Direction, and weighing up those that point in favour of visa refusal against those that point in the opposite direction, I conclude that the Applicant’s application for a protection visa should be refused.
As a consequence I affirm the decision under review.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President S E Frost ....................[sgd]...........................................
Associate
Dated 31 October 2016
Date of hearing [redacted] Representative for the Applicant Ms Wang Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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