Irageza and Minister for Home Affairs (Migration)
[2019] AATA 929
•12 February 2019
Irageza and Minister for Home Affairs (Migration) [2019] AATA 929 (12 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7026
Re:Mr Izahaki Irageza
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:12 February 2019
Date of written reasons: 16 May 2019
Place:Sydney
The Tribunal orders that the decision of the Respondent dated 22 November 2018 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa, is set aside.
In substitution, the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is revoked.
........................................[sgd].........................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – Class XB Subclass 200 Refugee visa – mandatory visa cancellation – failure to pass character test – whether there is another reason why the original decision should be revoked – Direction 65 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia affected by the decision – other considerations – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – applicant found not to pose an unacceptable risk of harm to the Australian community – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 36, 47, 499, 500, 501, 501CA
CASES
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61
Dang and Minister for Home Affairs (Migration) [2018] AATA 2095
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728
DND and Minister for Home Affairs (Migration) [2018] AATA 2716
Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Plaintiff S157/2002 v Commonwealth [2003] HCA 2
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – cll 6.2, 6.3, 9.1, 11.2, 11.3, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.1, 14.2, 14.5
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
16 May 2019
INTRODUCTION
The applicant challenges a decision of the respondent made under section 501(3A) of the Migration Act 1958 (Cth) (the Act), dated 22 November 2018, to refuse the revocation of a decision made on 1 February 2017 by a delegate to cancel a Class XB, Subclass 200 Refugee Visa held by the applicant at that date.
The cancellation was based upon the assessment that, in view of the applicant’s criminal record, the applicant presented a risk of harm to the Australian community. The delegate found that the possibility of future offending by the applicant could not be ruled out, and the Australian community should not have to accept any risk of further harm.
BACKGROUND
The applicant was born in 1997 in Burundi, of parents who lived in a remote village. The family was a member of a minority tribe known as ‘Twa Community’, which had suffered persecution. At a young age, his parents fled Burundi with the applicant to Tanzania, where they resided in a refugee camp – Kibondo – until 2008, when the applicant’s father successfully obtained a Refugee Protection visa to come to Australia. The applicant arrived in Australia on 10 October 2008 as the holder of a Class XB, Subclass 200 Refugee Visa (the Visa).
The applicant states that he has neither knowledge of the village where he was born, nor of any recollection because of his young age, of living there. He left that country as a baby. He recalls living in the refugee camp, but because he was only 11 years of age when he arrived in Australia, he has a limited recollection of that period.
The applicant has the following brothers: “X” born on 11 April 2001; “XX” born on 20 May 2005; “XXX” born on 11 July 2009; “XXXX” born 17 November 2007; “XXXXX ” born on 11 April 2003; “XXXXX XX” born on 10 July 2009; and a sister, “XXXXX XX” born on 1 June 2013.
Following their arrival in Australia, the applicant, his parents and siblings were allocated a residence in Mount Druitt, and thereafter at Liverpool, New South Wales. The evidence establishes that their home life was wholly unsatisfactory. The applicant’s parents were frequently drunk or affected by drugs, fought amongst themselves and fought with the children. The applicant, as the eldest, bore the brunt of such abuse when he sought to intercede for himself or for his younger siblings. As a result of his parents’ conduct, all children were removed by the State from the care of their parents and placed in foster homes. Some children were allocated to homes in Sydney, and others in Newcastle. Contact with their parents appears to have been, thereafter, negligible.
The applicant attended school until Year 11. He was expelled from the school because of drunkenness at approximately 17 years of age. Thereafter, the applicant has been homeless and jobless. He has supported himself by Centrelink payments. The evidence establishes that after he left school, and until the events which are referred to hereunder, the applicant was living in desperate conditions.
APPLICANT’S CRIMINAL HISTORY
The applicant had formed an intimate friendship with a female person from Sierra Leone (the Victim). She had been born in 1996 and was also homeless. After they had been conducting their relationship for about six months, police were called to the victim’s residence in Cabramatta, where she was then residing, as a result of numerous arguments involving the parties.
Police attended the residence of the victim on 9 July 2015 when it was alleged that the applicant had made threats to “bash” the victim. He decamped before police arrived, but it appears he was later apprehended. As a result, an application was made by the police for a provisional Apprehended Violence Order (AVO) to protect the victim. It was explained to the applicant that he was not to go within 100 metres of the premises of which the victim might reside or work. Such information was provided to the applicant whilst the applicant was in police custody.
First contravention of Apprehended Violence Order
At 12.10am on the following morning after the making of the AVO, namely, on 10 July 2015, the applicant returned to the victim’s premises after being in recent custody. He was arrested by police in respect of the breach of the order. When questioned, the applicant stated, “I just wanted to tell her that I was not going to come back here again.”
The issue of the breach of the AVO came before the Liverpool Local Court on 31 August 2015. The applicant was placed on a good behaviour bond for 12 months.
Second contravention of Apprehended Violence Order
On 28 September 2015, the applicant was arrested following an assault on the victim. The applicant and the victim were living under a table in the Light Horse Park on Riverside Drive, Liverpool. They had been living there for several days. On the day in question, the pair had consumed an unknown quantity of alcohol throughout the day. Whilst under the table, the applicant struck the victim with his closed fist to the right side of her face, causing her pain, and then bit the right side of her face. The victim was rescued by a group of council workers, and the applicant was apprehended. He became violent and aggressive towards the police, yelling obscenities at the police station before deliberately vomiting several times and urinating in his cell. Bail was refused on 29 September 2015 because, as recorded in the police record:
There is an unacceptable risk that the accused person, if released in custody, will commit a serious offence, endanger the victim, individual, or the community.
The applicant remained in custody until the hearing of his case on 18 December 2015.
On 18 December 2015, at the Liverpool Local Court, the defendant was convicted of Assault Occasioning Actual Bodily Harm, Stalk/Intimidate Intend Fear Physical Harm (Domestic), Destroy or Damage Property at the value of $2000, and contravening the existing AVO. The existing penalty imposed – namely the bond of 12 months – was called up.
In respect of the contravention of the AVO, the applicant was sentenced to two months and two weeks imprisonment, commencing on the day of his apprehension – namely, 28 September 2015 – and concluding on 11 December 2015. This period represented the time which the applicant had already served between the time of his apprehension and the hearing date at the Liverpool Local Court.
In respect of the Destruction of Property, the applicant was sentenced to one month commencing 28 September 2015, and concluding on 27 October 2015.
In respect of the Stalk/Intimidate Intend Fear Physical Harm, the applicant was sentenced to 14 months imprisonment commencing on 18 December 2015, concluding on 17 February 2017.
However, the sentence was suspended upon him entering into a bond for a period of 14 months to attend and participate in any course or program as directed by Probation and Parole Service.
In respect of the Assault Occasioning Actual Bodily Harm, the applicant was sentenced to 14 months imprisonment, commending on 18 December 2015 and concluding on 17 February 2017. Such a sentence was suspended upon the applicant entering the legal bond upon the same terms as before, namely, to attend and participate in any course of program as directed by the Probation and Parole Service.
A pre-sentence report was prepared by corrective services at the Local Court. The applicant admitted that he and his then ex-partner argued on occasions, but he denied any history of physical violence. The record shows that the applicant displayed “significant memory loss issues” and could benefit from an assessment of such issues.
In his sentencing remarks, the Magistrate noted the serious nature of the offences and regarded the offences as “very serious.” However, the Magistrate accepted the submission that the applicant was in need of “some assistance and that is paramount in your life.”
On 18 December 2015, the Liverpool Local Court extended the terms of the AVO by the additional orders as follows:
4. The Defendant must not go within 100 metres of the premises of which the protected person may from time to time reside or work, or other specified premises.
…
7. The Defendant must not approach or contact the protected person by any means whatsoever, except through the Defendant’s legal representative.
It was noted that the applicant was present in court when these orders were made.
Third breach of Apprehended Violence Order
On 2 January 2016, the applicant telephoned the victim and they arranged to meet at a local park in Canley Vale sometime after 3.00pm on that day. Both the applicant and the victim consumed alcohol there. At about 11.30pm that evening, the applicant and the victim caught the last train from Canley Vale to Fairfield. They then attended Fairfield Park to meet with the applicant’s friends for further consumption of alcohol.
At 12.15am on Sunday 3 January 2016, the police attended the park and the applicant denied that he was the subject of an AVO. He absconded, but on Tuesday 5 January 2016, police patrolling at Mount Druitt Railway Station spoke to the accused concerning a transport offence. The accused was conveyed to Mount Druitt Police Station, where he denied that he had seen the victim. The applicant was charged with contravening the AVO.
This offence took place only three weeks after the last proceeding in the Liverpool Local Court. The matter came before the Fairfield Local Court on 7 January 2016. The applicant was convicted of breach of the AVO, but no other penalty was imposed.
Fourth contravention of Apprehended Violence Order
On Sunday 31 January 2016 at 6.00am, the applicant and the victim were drinking alcohol in a reserve near Carramar Railway Station, Carramar. On this occasion, the victim had telephoned the applicant the night before and arranged the meeting.
After drinking for about an hour, the victim went to the railway station to catch a train to Fairfield. The applicant pleaded with her to return but when she declined, the applicant grabbed the victim’s right arm, dragged her to the ground and stood over her with one foot placed on either side of her body. The victim was trying to escape. A passer-by on the platform yelled at the applicant to get away. Closed-circuit television shows the applicant grabbing the victim, placing her in a headlock, and dragging her to the ground. The applicant appeared to be under the influence of alcohol.
The applicant was taken into custody and bail was refused. This matter came before the Fairfield Local Court on 5 May 2016 when orders were made against the applicant. The 14 months imprisonment commencing on 31 January 2016 was called up, concluding on 30 March 2017, with a non-parole period of ten months commencing 31 January 2016 and concluding on 30 November 2016.
In respect of the Assault Occasioning Actual Bodily Harm arising out of the previous offence, the imprisonment of 14 months was called up to commence on 31 January 2016 and concluding on 30 March 2017. A non-parole period of ten months commencing on 31 January 2016 and concluding on 30 November 2016 was imposed.
With respect to the Common Assault charge arising out of the latest offence, the applicant was imprisoned for 18 months, commencing on 30 November 2016 and concluding on 29 May 2018 with a non-parole period of six months, commencing on 30 November 2016 and concluding on 29 May 2017.
With respect to the latest contravention of the AVO, the applicant was sentenced to 18 months imprisonment commencing on 30 November 2016 and concluding on 29 May 2018 with a non-parole period of six months, commencing on 30 November 2016 and concluding on 29 May 2017.
The prison sentences were served with the consequence that the applicant served jail time from 5 May 2016 until 29 May 2017. He had been in custody since 31 January 2016. On his release, he was detained in Detention and has been in Detention since that date.
Rehabilitation
Whilst in prison, the applicant completed a 20-session course entitled, “Equips Addiction Program.” The program’s office at Cessnock Correctional Centre recorded that the applicant was very quiet and often needed prompting to contribute to group discussions. The report notes:
His literacy levels are low, but he is literate and could complete some of the worksheets independently; others, he was given assistance by facilitators. [The applicant’s] comprehension was sufficient for him to understand the basic premise of the program, and this was regularly reinforced. [The applicant’s] timekeeping was initially poor but improved remarkably during the program. I believe [the applicant] benefited from the program but will need to follow-up in the community.
The applicant also satisfactorily completed a domestic abuse program. His supervisor reported that the applicant became more confident throughout the program. He displayed good understanding of the program content and would ask appropriate questions. The report on this program continues:
He appears to understand the connection between the emotions, thoughts and feelings and how these impact his behaviour. He was able to identify that he acted on irrational thoughts which led to his offending behaviour. The applicant] appears to understand that changing his unhelpful thought to helpful ones would help secure better outcomes. He was able to identify his high-risk factors and how these can impact on his behaviour. [The applicant] participated well in the offence mapping, and he appears to understand the importance of this. He was able to understand the impact of his offending behaviour, how this affected his victim and also others, including his family and the people that were present at the time of his offence. [The applicant] has made excellent progress in the program, he became more confident to speak up and ask for assistance when required. [The applicant] is future-focussed and is looking forward to leading a more productive life once released.
GROUNDS FOR CANCELLATION OF THE VISA
The delegate in the decision dated 22 November 2018, which is the subject of this application, gave significant weight to the serious nature of the crimes committed by the applicant and found that the Australian Community could be exposed to harm, should the applicant reoffend. The delegate found that further offending could not be ruled out, and that the Australian Community should not have to accept any risk of further harm.
The delegate also considered the applicant’s minor siblings and concluded that their best interests will be served by revocation of the decision to cancel the visa. However, in view of the unacceptable risk, it was concluded that the visa should remain cancelled.
DIRECTION 65
Direction 65 is made under section 499 of the Migration Act 1958 (the Act) and is a guide for decision-makers in respect of the exercise of discretion under section 501 of the Act. The direction does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision-maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141, Perry J at [80]. See also DND and Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].
It is also established the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
SPECIFIC CONSIDERATIONS UNDER DIRECTION 65 - CRIMINAL OR OTHER SERIOUS CONDUCT
Part A of the direction sets out the primary considerations for visa holders. As provided by clause 9.1(1), included is protection of the Australian Community from criminal or other serious conduct. In applying a direction, the decision-maker must have regard to clause 6.2, general guidance, which reaffirms the principle that the government is committed to protecting the Australian Community from harm as a result of criminal activity or other serious conduct by non-citizens: see clause 6.2(1) of the direction.
Further, clause 6.3 establishes the principles to be followed and reaffirms Australia’s sovereign right to determine whether non-citizens should be permitted to enter Australia or remain in Australia, and reaffirms that the privilege of being able to do so carries with it the expectation that such persons are law-abiding, or respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals of the community: see clause 6.3(1). Clause 6.2 states that the Australian Community expects that the Australian Government should refuse entry to non-citizens or cancel their visas if they commit serious crimes in Australia or elsewhere.
Part C relates specifically to revocation of a visa. In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes. Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(e). Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of a conduct: see clause 13.1.1(1)(c).
RELEVANT LEGISLATION
Section 501(2) of the Act empowers the Minister to cancel a visa which had been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.
The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7) provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more: see section 501(7)(c).
APPLICATION OF DIRECTION 65
The applicant acknowledges and concedes that he does not pass the character test. However, matters are raised which are relied upon in support of the application, by way of discretionary matters, to warrant a different conclusion to the revocation of the visa.
The Tribunal has received submissions from both parties. It will deal firstly with the factors upon which the applicant relies. They are as follows: the applicant accepts that the principle offences for which he was sentenced on 5 May 2016 were “serious offences.” Secondly, the applicant maintained that the sentence imposed on that day was suspended, subject to a bond. Thirdly, it is submitted that there is no evidence that the criminality involved vulnerable members of the public, and that all his offences were not associated with sexual crimes or gang crimes. Fourthly, the applicant says that he has committed no offences whilst imprisoned or in detention. Additionally, whilst the offences were committed in Australia, the applicant’s criminal history is not substantial. The applicant accepts that the cumulative effect of his offending is serious. However, the offences were committed within a relatively short period, during which he was homeless, having no place to stay, having been traumatised and depressed from his turbulent family background. The applicant states that he has now rehabilitated himself.
The applicant claims that this is not a case where he represents an unacceptable risk of harm to the Australian Community, because of his rehabilitation. Further, there is no evidence to suggest that he will offend in the future or that there is any likelihood of him reoffending.
As to the risk to the Australian Community, the applicant states that he recognised his errors by pleading guilty to the offences against him and has undertaken several courses to assist in his rehabilitation. Furthermore, he claims to be a devoted Christian.
RESPONDENT’S SUBMISSIONS
The respondent refers to the unprovoked and vicious assault by the applicant on the victim during the park incident, in which the applicant hit the victim, bit her on the face, and slammed her face into a park bench. He punched the back of her head two to three times during a chase before she was assisted by council workers. The applicant claimed that he was jealous and suggested the victim was flaunting herself to other men.
The respondent refers to the sentencing remarks that observed that bail was refused after the incident. The respondent refers to the sentencing remarks on the hearing on 5 May 2016 in respect of the offences committed on 28 September 2015. The Magistrate observed that they were:
Domestic violence matters that are extremely serious. There are worse ones that come before the Court, but these cannot be regarded as anything other than very serious matters.
On that basis, the applicant was sentenced to 12 months imprisonment.
The respondent refers to the untruthful statements made by the applicant to police on more than one occasion. The respondent submits there is a very severe risk that the applicant could inflict harm on the victim, and that the Tribunal could have no confidence that the reoffending will not occur. In the Minister’s first assessment, there is a reference to the fact that in respect of the risk of reoffending, that there was a “medium risk.” However, the respondent states that it is not possible to quantify how much lower the risk might be of reoffending.
The respondent submits that the applicant has no insight into his conduct. The applicant displayed no empathy for his victim and showed no insight into his conduct. The respondent refers to an assessment report dated 4 May 2016, which was used in the Fairfield Local Court on 5 May 2016. The assessment, conducted by a community corrections officer, assessed the risk as:
Medium-high risk of reoffending. The offender’s criminogenic needs are alcohol, domestic violence, accommodation.
Under factors contributing to current offences, the following appears:
The offender disputed the contents of the police facts and appeared to have displayed limited insight into his offending behaviour. He claimed that the victim had enticed him to see her, and he did not consider the consequences. He denied that he was intoxicated; however he admitted that he was “hungover” despite previously denying any problematic alcohol abuse. [The applicant] failed to display any empathy towards the victim.
The respondent submits that the applicant fails to take responsibility for his actions, blames his victim for his offending, alleging that the victim was arousing him by virtue of her conduct, blames substance abuse and alcohol for the fact that he could not control himself, and blames his father for setting a bad example.
The respondent submits that the applicant will have difficulty in the future because he has never held a job, could only – according to prison records – carry out relatively simple tasks at work allocated to the prisoners. According to the prison assessment, the applicant had “limited understanding of what is occurring around him.” The report continues: “As such, he is very vulnerable to other inmates manipulating him in terms of misbehaviour.”
As to work, the report relevantly stated:
If he is going to work, it will need to be in a basic skill team with little complex tasks involved. He appears to indicate that he understands (just says “Yes”) however, when asked, he is not able to provide a response which could affect any level of comprehension. He will need long-term assistance in reintegration and referral to suitable agencies.
A psychiatric report was provided by a psychiatrist, dated 21 March 2016, to the presiding Magistrate at the Fairfield Local Court. The report relevantly states that the applicant has poor literacy levels, was unable to do simple arithmetic, and his numeracy was markedly impaired for his age group. The applicant had difficulty adding simple numbers or subtracting simple numbers from 100. The report stated:
The applicant asserted that he had been given large amounts of alcohol by his father and that he was expelled from school for being drunk at age 17 years, and that he has never worked. The psychiatrist was not convinced at the time of the assessment that there was any evidence of a psychotic order present. The psychiatrist considered the applicant was a man of “borderline intellectual functioning with a history of alcohol and cannabis usage. He is a man who has had difficulties adjusting to his new resident country and is functionally illiterate. He is homeless and has never worked in the open labour market. He also appeared to have limited support in the general community.”
The psychiatrist recommended that the applicant cease all alcohol and other illicit substances for an indefinite period, as further use of such substances was likely “to exacerbate his behavioural and possible underlying psychiatric problems.” The applicant was described of being of “borderline intellectual functioning.”
For these reasons, the respondent submits that there is a high risk of reoffending by the applicant.
CONSIDERATION
The nature and seriousness of the applicant’s conduct
The offences for which the applicant was convicted relate essentially to domestic violence. It has been recognised that domestic violence is a very serious matter: see Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53], Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 at [48], Divane and Minister for Immigration and Border Protection [2016] AATA 728 at [57].
When the circumstances relating to each offence is considered and the relationship between the applicant and the victim are taken into account, the circumstances leading to the offences are explained. The violence displayed by the applicant has been towards only one person, namely the victim. They had been in a turbulent relationship for approximately 12 months before the applicant was imprisoned. The violence appears to have been fuelled by excessive alcohol consumed by both the applicant and the victim.
With respect to the AVO, it is unusual that whilst the order was current, the victim telephoned the applicant and asked him to meet her. Further, the records reveal that at the hearing on 31 August 2015, when the applicant was charged with breaching the AVO, the victim stated that she would like to have the AVO amended so that she could have ongoing contact with the offender. She denied to the police that the applicant had any issues with alcohol or drugs.
The repeated breaches of the AVO can be explained by virtue of the ongoing relationship between the victim and the applicant, the applicant’s lack of awareness of the need to obey the orders made by a court, and by the applicant’s general mental ability as reflected in the psychiatric report.
It is not possible to state with any conviction that the applicant will not have further convictions in the future, and the risk of reoffending remains despite his statements that he is now a different person. However, since the violence was of a domestic nature and did not involve any other member of the public, and since there is no evidence of any ongoing alcohol or drug-taking, and by virtue of the family ties which are addressed hereunder. There may be some scope for considering that the prospects of reoffending might be limited. The relationship between the applicant and the victim has long ceased. The applicant does not pass the character test, and according to the question it must be determined whether there is anything further which might influence the decision not to revoke the cancellation order on the basis that the applicant represents an unacceptable risk.
Best interests of minor children in Australia affected by the decision
Direction 65 requires decision-makers to have regard to the question of whether refusal – or in this case, cancellation of the visa – is in the best interests of any child, see clause 11.2(1), or where there is more than one child, the best interests of each child must be given individual consideration: clause 11.2(3). Clause 11.2(4) states the particular considerations for decision. Whilst the children, namely the siblings of the applicant, do not stand in a parental relationship, consideration must nevertheless be afforded. Clause 11.2(4)(a) states that less weight should generally be given where the relationship is non-parental.
At the hearing, the applicant testified as to the ordeals that he and his siblings suffered at the hands of their parents, resulting in all children, including the applicant, being removed from their parents’ control and being placed in the care of the state. It seems that the applicant was placed in foster care while he was still at school, and the other siblings were divided amongst other families. After the applicant left school, he became homeless and contact with the siblings was, at best, sporadic.
Despite this fact, the siblings state that they regard the applicant as the head of their family, and not their parents, with whom they have had no meaningful contact since the siblings were placed in foster care. The Tribunal had the benefit of seeing three of the children who resided in Sydney. They provided oral evidence which assisted the Tribunal in understanding the family’s sad background. They said that the applicant had protected them from their abusive father and mother and cared for them as if he were the head of the family. They regarded him as the family figurehead.
The children stated that they saw the applicant whilst he was in prison whenever it was possible to visit him. That was usually once a month. Two other brothers who resided in Newcastle gave evidence by telephone conference. They said that they visited the applicant in Cessnock Prison – which was closer to their home – fortnightly, whenever possible. The records tended to support such visits. The applicant has a sister who is aged 5 who attended the Tribunal but was not required to participate. All of the children appeared to be well cared for. It was apparent from the evidence that despite his failings, the applicant was a pivotal figure in their lives. The Tribunal was impressed by the demeanour and bearing of the siblings who provided evidence. The children have an aunt living in Australia, but no information was provided about her. However, it was plain that the children relied, for support, upon the applicant.
As was found by the Minister in the decision appealed from, it is in the best interests of the minor siblings that there be a revocation of a mandatory visa cancellation decision.
OTHER CONSIDERATIONS
International non-refoulement obligations
Direction 65 requires a decision-maker to have regard to non-refoulment obligations: see clause 14.1. By clause 14.1(2), the existence of a non-refoulment obligation does not preclude non-revocation of a mandatory cancellation of non-citizens’ visas. However, it leaves open the question of the future fate of the applicant.
On 28 November 2017, the applicant received notification from the respondent that on 1 February 2017, his visa was cancelled under section 501(3)(a) of the Act. In that decision, the issue of non-refoulment was not considered. That decision was subsequently overturned. In the decision under review made by a delegate of the respondent on 22 November 2018, this issue was briefly referred to. The Tribunal is required to consider such matters since the applicant has raised the risk of harm, should he be returned to Burundi. See BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 at [72]. Failure to consider this question constitutes jurisdictional error, see Plaintiff S157/2002 v Commonwealth [2003] 211 CLR 476 at [82] and [83]. See also Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [20], [24] and [26].
Following the decision in BCR16, Direction 75 was made to guide decision-makers when determining valid applications for protection visas under section 47 of the Act. In summary, the direction requires that if a non-citizen is considered a serious character or security risk to the Australian Community, refusal may result. See principle 3 of the direction. Clause 4 of the Principles provides that refusal of a protection visa because of specific ineligibility criteria does not extinguish Australia’s non-refoulment obligations in all instances. It does not necessarily follow that a person who has been unsuccessful should be removed from Australia.
The applicant has claimed that if he were returned to Burundi, he would suffer severe detriment and be exposed to significant harm. Evidence was provided to the Tribunal of indiscriminate killings and general lawlessness that prevails currently in that country. Country information shows that the political situation in Burundi continues, that violence is still going on and that a humanitarian crisis exists in that country. Information was tendered to the Tribunal, published by the United Nations, which confirmed the worsening of the humanitarian situation which has resulted in 180,000 internally displaced persons and 3.6 million people in need, with more than 429,000 persons of Burundi seeking refuge in neighbouring countries.
A publication of the United Kingdom government was also tendered, expressing extreme concern of the possibility of further deterioration in the political, economic and security situation in Burundi, resulting in additional displacement of people and increased human rights violations and abuses. A publication of the U.S. Department of State confirms that approximately 450,000 Burundian refugees remain in Rwanda, Uganda, Tanzania, Kenya, Mozambique, Malawi and Zambia. It states that medical services are very limited and ambulance services are non-existent.
The applicant has provided a statement to the Tribunal setting out specific hardship which he will suffer if he returns, including absence of any support services which have been recognised as necessary for him, lack of social service support, and potential risk to his life.
The respondent does not challenge any of the information put forward by the applicant. In these circumstances, the Tribunal accepts that the applicant will be placed in a position of great hardship if he were returned to his country of birth, because he was born into a minority tribe which could be the subject of persecution. It is not established whether he can speak the dialect in that country, since he left at a very young age and came from a remote village. The evidence of violence towards a community and his tribal connections could well expose the applicant to significant harm within the meaning of section 36(2)(aa) of the Act, if he were returned to Burundi. For these reasons, the issue of non-refoulment weighs heavily in favour of a cancellation of the revocation of the visa.
Strength, nature and duration of ties
Clause 14.2 of the direction requires the Tribunal to consider the length of time that the non-citizen has resided in Australia, including whether he arrived as a young child: see clause 14.2(1)(a). Decision-makers must also have regard to whether the offending followed soon after arriving in Australia, and whether a positive contribution has been made by the person to the Australian Community. Further, the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and with persons who have an indefinite right to remain in Australia, is also to be considered: see clause 14.2(1)(b).
The applicant arrived in this country when he was 11 years old. There was no evidence of any family ties with other persons, although references have been provided in support of the applicant. One reference provided by a pastor of a church states that she has known the family since 2010.
However, it seems that the family rapidly became dysfunctional and contact was lost - until recently - with any member of the family. The applicant’s father never obtained employment and was constantly under the influence of drugs or alcohol. It appears that the applicant’s mother was similarly impaired.
There is support for the claim that the applicant acted as the head of the family for his siblings and protected them from his parents. He committed no offences in Australia between the time of his arrival in 2008 and his first offence in 2015.
As I have mentioned, the applicant has had no further contact with the victim and the relationship has ceased. Whilst in prison, he wrote a letter of apology to her. Significantly, relationships have been formed with the pastor referred to above and with another pastor, who has taken a keen interest in the applicant. Both pastors have undertaken to provide accommodation to the applicant if he is allowed to remain in Australia. One pastor has offered to find him employment in a business which he operates related to the construction industry, namely, provision of formwork. Both pastors have undertaken to supervise and guide the applicant in the future if he is allowed to remain in Australia. They are both formally from different countries.
One matter of significance emerged during the course of the evidence concerning the applicant’s knowledge of his status in Australia. The applicant stated that he had no knowledge, until he was in prison, that he was present in Australia only because of his visa. That is, he had no prior knowledge that he was a non-citizen. This knowledge was only brought home to him when he received papers during his imprisonment, prior to him being taken into Detention.
Direction 65 requires that consideration be given to other relationships. Clause 12.2 requires a consideration on the impact of the refusal to grant or continue the visa on family matters. This has already been considered.
Clause 12.3 requires consideration of the impact on victims. Since a relationship between the victim and the applicant has ceased, these is no contact with the victim and this is not a relevant consideration. Clause 12.4 requires consideration be given to any Australian business interests. This is not a relevant consideration.
CONCLUSION
Clause 11.3 of the direction requires the Tribunal to have regard to the expectations of the Australian Community. Pursuant to that clause and clause 13.3 of direction 65, discretion lies with the decision-maker to come to a conclusion concerning the expectations of the Australian Community in a particular case. In Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310, the tribunal, at [66], observed:
It requires the decision maker to have regard to the government’s views, but they are views that, as I said, allow regard to be had to the whole of the circumstances.
When the circumstances of the offences are considered, they do not appear to be as serious as appears on the police record. The initial offences attracted suspended sentences, thereby giving some indication that the sentencing Magistrate did not consider the applicant to be a danger to the community. This is a relevant consideration as was referred to in Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049. All of the offences were committed over a relatively short period, namely commencing on 31 August 2015 when the AVO was made without a court hearing, but thereafter, the first court hearing being on 18 December 2015, through to the offences which came to court on 5 May 2016, a period of months. The risk of reoffending remains, and this consideration by itself would warrant refusal of the applicant’s application.
However, the Tribunal considers that there are countervailing matters. Section 501CA(4)(b)(ii) of the Act requires the Minister to examine the factors for and against revoking the cancellation. The Tribunal must determine and weigh up all of the circumstances both for and against the application, as referred to by North J in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61, 2016 240 FCO 29 at [91].
No legally reasonable conclusion concerning the seriousness of an offence can be determined without informative details of the actual circumstances involved. Similarly, Buchanan J in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, (2014) 220 FCR 1, Buchanan J held that a visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances: see paragraphs [202] and [207].
The Tribunal considers that the following matters weigh very much in favour of the application being upheld:
(a) the best interests of the children who are the siblings of the applicant will be served by his presence in Australia;
(b) the applicant has expressed remorse and contrition and has endeavoured to rehabilitate himself by undertaking courses whilst in prison;
(c) there are persons of standing in the community – namely the two pastors – who are prepared to supervise the applicant, to offer him accommodation and employment if he is permitted to stay in Australia;
(d) the applicant had no knowledge that his presence in Australia was dependent upon the visa until after the offences were committed and whilst he was in prison. He was accordingly oblivious of his obligations under the visa;
(e) the applicant, whilst barely literate and having limitations on his ability in respect of suitable employment, has shown interest in undertaking construction type work. His prison records show that he was regarded as a leading hand in woodwork;
(f) the applicant would suffer great hardship if he was returned to his country of which he has virtually no memory, may not be able to speak the language, has no family or associations with that country, and the fact that there is a risk of violence if he were to return to that country;
(g) the applicant would suffer personal disadvantage if he were returned to the country of his birth because of the different standard of living which he has enjoyed in this country since 2008, compared to that which he will experience in Burundi; and
(h) the applicant has lived more than half of his life in this country, and his offending occurred in the circumstances already described, and over a short period of time.
The Tribunal considers these factors, principally the best interests of the applicant’s siblings, on balance, narrowly outweigh other considerations, and provide the applicant a second chance to become part of the Australian community, as was considered in Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [90]-[91].
Essentially, the applicant was (a) unaware of his obligations under his visa; (b) has no knowledge of the country to which he may be returned, nor family members in that country; (c) his offending was not against the community generally, was committed under circumstances of drunkenness arising out of his association with the victim only, and not the public. In these circumstances, revocation would lack compassion: see Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 at [85].
Accordingly, the Tribunal considers that the applicant should be given a second chance, as he requests. If he should commit any further offences, the Tribunal cannot speculate upon whether any third chance will be offered to him.
DECISION
For these reasons, the decision of the Respondent dated 22 November 2018 not to revoke the mandatory cancellation of the Applicant’s Class XB Subclass 200 Refugee visa, is set aside.
In substitution, the Tribunal orders that the cancellation of the Applicant’s Class XB Subclass 200 Refugee visa is revoked.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of the Hon. Dennis Cowdroy OAM QC, Deputy President Cowdroy
...............................[sgd]...............................
Associate
Dated: 16 May 2019
Dates of hearing: 30 January 2019
31 January 2019
1 February 2019Solicitor for the Applicant: Mr F Nikjoo, Nikjoo Lawyers Solicitor for the Respondent: Ms M Perotti, Sparke Helmore Lawyers
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