JFSQ and Minister for Home Affairs (Migration)
[2019] AATA 616
•2 April 2019
JFSQ and Minister for Home Affairs (Migration) [2019] AATA 616 (2 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0275
Re:JFSQ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries AO
Member William Frost
Date:2 April 2019
Place:Canberra
The Tribunal affirms the decision made by a delegate of the Minister on 10 January 2019 to not exercise the discretion in s 501CA(4) of the Migration Act 1958 (Cth) to revoke the original decision made under s 501(3A) to cancel the Applicant’s Class XB Subclass 202 (Global Special Humanitarian) visa.
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Deputy President Gary Humphries AO
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Member William Frost
Catchwords
MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – whether there is other reason why cancellation decision should be revoked – best interests of minor children – whether Australia’s non-refoulement obligations are engaged – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 43
Migration Act 1958 ss 499, 501, 501CACases
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR v Minister for Immigration and Border Protection [2017] FCAFC 96
BCR16 v Minister for Immigration and Border Protection [2017] HCA Trans 240
HGBY and Minister for Immigration and Border Protection [2017] AATA 2824
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961
Yildirim and Minister for Immigration and Border Protection [2017] AATA 1353
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279
Secondary Materials
Ministerial Direction No. 79
REASONS FOR DECISION
Deputy President Gary Humphries AO and Member William Frost
2 April 2019
INTRODUCTION
The humanitarian visa held by the Applicant has been cancelled and the delegate of the Minister for Home Affairs has decided not to exercise a discretion to revoke that cancellation. The Applicant has appealed to the Tribunal for merits review of that decision.
The Applicant identifies herself as South Sudanese. The Tribunal was told that she experienced a sometimes traumatic childhood, which occurred during a civil war in Sudan. At the age of 12 her two uncles were shot dead in front of her. She, her husband and their three sons moved to Egypt in 2000 and came to Australia in 2005 after being issued with humanitarian visas. However, by the time she arrived in Australia she was experiencing mental health issues and problems with the misuse of alcohol, and soon after arriving in Australia her husband and children moved to Melbourne and she stayed in Sydney. As a result of new relationships she gave birth to twin girls and a boy in Australia. These children are no longer in her care and have been legally adopted, or are in the process of being adopted, by a couple in Sydney.
In September 2005 she was convicted in the Parramatta Local Court of the malicious wounding of her husband. Over the succeeding 12 years she was convicted of 20 further criminal offences – some of them offences of violence – and was sentenced to at least three periods of imprisonment.
On the basis of this criminal record, the Applicant’s visa was cancelled on 24 March 2017. Shortly afterwards she requested that this decision be revoked, but on 10 January 2019 the Minister’s delegate decided, pursuant to 501CA(4) of the Migration Act 1958 (the Act), not to exercise the discretion to revoke the original decision to cancel her Class XB Subclass 202 (Global Special Humanitarian) visa. She has applied to the Tribunal for review of this decision.
The Applicant is presently in immigration detention. However, she appeared in person before the Tribunal, together with her representative, to give evidence in support of her application. Her evidence, mostly given in Dinka, was through an interpreter.
RELEVANT LEGISLATION AND POLICY
The Act provides for the automatic cancellation of a visa in certain circumstances. Section 501(3A) provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
By virtue of s 501(7)(c) of the Act a person has a substantial criminal record where he or she has been sentenced to a term of imprisonment of 12 months or more. The Applicant has been sentenced to three terms of imprisonment of more than 12 months during her almost 14 years in Australia. Therefore, she does not pass the character test as defined in s 501 because she has a substantial criminal record as set out in s 501(7)(c). In light of that, and the fact that she was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the ACT, the terms of section 501(3A) obliged the delegate of the Minister to cancel the Applicant’s visa.
Section 501CA applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: subsection 501CA(1). Subsection 501CA(4) 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.
A decision by the Minister’s delegate not to revoke the original decision is a reviewable decision which may be reviewed by the Tribunal: s 501(1)(ba) of the Act.
Under s 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act, provided the directions are about the performance of those functions or the exercise of those powers (s 499(1)) and are not inconsistent with the Act or the Regulations made under it (s 499(2)). The person or body to whom the directions are given must comply with them (s 499(2A)).
The Minister has made a direction under s 499 of the Act for the purposes of decisions made under, among others, s 501CA. Direction 79 (Direction 79) applies to a decision made in relation to a visa of the sort previously held by the Applicant. From the commencement of Direction 79 on 28 February 2019 it revoked the previously applicable Direction 65.
The Tribunal must apply the law and any policy in existence at the time the Tribunal makes its decision (see Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461). Review of a decision leads to the Tribunal making the decision afresh on the evidentiary material available to it, which is an exercise of the powers under the Act. That emanates from s 43(1) of the Administrative Appeals Tribunal Act 1975 which provides that:
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision.
Accordingly, although Direction 65 was the applicable ministerial direction at the time the reviewable decision now before the Tribunal was made, the Tribunal must now apply Direction 79 in determining this application for merits review.
The Preamble to Direction 79 sets out general guidance and principles for decision-makers, including:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;
(d)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 the visa;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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;
(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa 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.
Part C of Direction 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three primary considerations and several specified, but non-exhaustive, other considerations which must be taken into account.
The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)The bests interests of minor children in Australia (Primary Consideration 2); and
(c)Expectations of the Australian community (Primary Consideration 3).
The other considerations in Part C are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Direction sets out criteria a decision-maker must consider in determining the appropriate weight to be given to each of the considerations. The application of these criteria to the circumstances of this application is discussed below.
Paragraph 8 of Direction 79 notes that:
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (para 8(2)).
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 (para 8(3)).
Primary considerations should generally be given greater weight than the other considerations (para 8(4)).
One or more primary considerations may outweigh other primary considerations (para 8(5)).
ISSUES
The tendered police record shows that the Applicant was sentenced to a term of imprisonment of 12 months or more on at least three occasions. Accordingly, she fails the character test in s 501(3A). Her representative conceded as much. Thus the only issue for the Tribunal to determine is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii).
The Applicant was born in Khartoum, in Sudan, but identifies as South Sudanese. Some of the evidence given by her and on her behalf refers variously to Sudan and South Sudan. The Tribunal notes that South Sudan did not exist as a separate nation until after the Applicant had arrived in Australia. As such it is unclear as to whether the Applicant would go to Sudan or South Sudan should she be repatriated as an outcome of this decision. The Tribunal does not consider that anything turns on the fact that there are now two nations where originally there was only one. However, in respect of Australia’s international non-refoulement obligations, the Tribunal has assumed that the Applicant would return to South Sudan, where the human rights position appears to be somewhat more hazardous than in Sudan.
THE EVIDENCE
The evidence before the Tribunal was that the Applicant was born in 1979; she is presently 40 years of age.
Two statements bearing the Applicant’s name were tendered to the Tribunal. Both were in English. The Applicant gave evidence through the interpreter that she did not speak English, and indicated that the statements had been prepared by someone else. Under cross-examination she indicated that some detail in at least one of the statements was inaccurate.
The Applicant was asked by her representative about her life in Sudan before the age of 21. She told the Tribunal that she saw people killed in front of her, but became upset and was unable to give further evidence on this topic. However, her statements record that she was one of 12 children, and that her parents and some of her siblings continue to live in Sudan. She witnessed her uncles being shot when she was 12 years old. She married her husband when she was 15 years old, and subsequently had three boys by him. She and her family fled Sudan as refugees due to the violent War, one of her statements said.
In live evidence she told the Tribunal she had done an alcohol program while in prison, and was taking daily medication for schizophrenia, which she felt does make a difference. She has been taking medicine for schizophrenia since 2005, though not the same medicine over that period.
She talks to her adult sons every day on the telephone. When she sees her younger children she teaches them their ancestral language and buys them clothes and books. She speaks to them on the telephone once a month. The Applicant said that her twin girls were three days old when they were taken away from her care by a state government authority. Her youngest son was taken from her care because she was in prison at the time of his birth.
Under cross-examination, the Applicant said she had not worked or undertaken any study since arriving in Australia. She had not attempted to find any work.
She was asked about her criminal record, details of which appear below. In relation to the offence of malicious wounding in 2005, she said she did not remember what had happened, but that she was drunk at the time. She subsequently undertook a rehabilitation program ordered by the court. She said that in this program they just talk about the alcohol and the drugs. She was asked about other offences of which she had been convicted, but said she could not remember the details about them. She remembered going to prison in 2017.
She was asked about her 2017 convictions in the ACT Magistrates Court of intentionally wound, possess offensive weapon with intent and common assault, and about remarks of the sentencing Magistrate in referring to an assault on her partner, Mr A. The Applicant told the Tribunal that Mr A was her boyfriend but that I didn’t intend to harm him. She was also asked about an assault on Ms M; she said lots of people were in the house and when they went to the police and they said that … she has (indistinct) them but she didn’t do it. She said when I drink alcohol that’s when I committed the crime.
She was asked about a part of one of her statements where she said I am deeply sorry for my crimes and for causing trouble, and that I have not completed any rehabilitative courses, counselling or programs as my English skills are not the best. It was put to her that this statement downplayed the severity of her offending. It was also put to her that her record of offending showed that she had a blatant disregard for the members of the Australian community or the laws of Australia. She agreed with both contentions. She also agreed that alcohol abuse has been an issue in almost all of her criminal offending.
She told the Tribunal that she would not drink alcohol again. When asked what assurance could be provided for that, the interpreter said:
…she’s twice as sure that she’s not going to drink alcohol because the alcohol is going to kill her…
The Applicant told the Tribunal that she had received two letters from the Minister’s Department warning her that if she committed further offences her visa may be cancelled. The second letter came when she was in prison in 2013. She agreed that she committed further offences in 2015 and 2017 after receiving this warning.
She said that she had had regular contact by telephone with her parents and siblings in Sudan before going to prison.
In re-examination, the Applicant’s representative asked her if she was represented when she was charged with criminal offences. The Applicant said she didn’t remember, but she recalled that the charges were explained to her. The following exchange then occurred:
INTERPRETER: (Indistinct). Her husband was pretending to - to - was pretending (indistinct).
MS WANG: Okay.
DEPUTY PRESIDENT: Sorry, could you repeat that please, Interpreter?
INTERPRETER: She said she just - she just said that her husband was (indistinct) but she didn’t.
DEPUTY PRESIDENT: Did you say her husband pretended that he raped her?
INTERPRETER: No, she - no, pretending like he visit her (indistinct).
MS WANG: So are you saying - sorry, are you saying that the husband - so [the Applicant] is saying that her husband was pretending to be injured in these fights?
INTERPRETER: Yes, yes.
MS WANG: Okay, so it’s her evidence that he made it up?
INTERPRETER: Yes.
MS WANG: Is that what she is saying?
INTERPRETER: Yes.
Later, the Tribunal asked her this question:
DEPUTY PRESIDENT: Are you saying that there are some convictions that you received which were not fair convictions, where you did not commit the crime that you were charged with?
INTERPRETER: She said, yes, some of them they are totally fair (indistinct) and then I drink and then they claim, they just tell me that I am the one who has done it.
The tendered statements of the Applicant record that her parents have warned her to stay away from Sudan for her own safety. One of the statements records:
My former husband has been accused by authorities of conspiring with others to have white people killed. My family and [a sister] have said that these allegations are still current.
The other statement contains this plea:
…if you were to send me back to my home land of Suddan you will be sentancing me to death as the war and violence still is very much apparent there…[sic]
The Applicant’s former husband gave evidence on her behalf. In a statement of 11 December 2018, he said:
Back in Sudan, there is no future for her, just endless days of her crying to be here in Australia with her children.
The Applicant’s former husband gave evidence by telephone. He said that the Applicant began to abuse alcohol and exhibit mental health problems while they were waiting in Egypt before coming to Australia. They separated in 2006 or 2007, after arriving in Australia. He said he had remarried, but still loved the Applicant. He said he would support her if she was allowed to stay in Australia.
He referred to the Applicant’s three younger children as being my…children. He was asked why he did so, in light of the Applicant’s evidence that these children had been fathered by men other than him. He responded that if the woman he had married had children in our culture the baby is still yours, your family.
Several witness statements were tendered on behalf of the Applicant. For the most part, these statements constituted expressions of support and sympathy for her, and pleas for her to be able to stay in Australia. An undated statement of Ms Pauline Bates, a fellow prisoner of the Applicant, described her as a loving and caring woman. A statement dated 16 September 2017 of the adoptive parents of the Applicant’s younger children, said that they believed it was in the best interests of the children for their mother (the Applicant) to stay in Australia. They said that she had four visits a year to the children, as well as phone contact and letters. They considered that it had been helpful to the children’s sense of identity and understanding of their cultural heritage to have contact with her and felt that the children would miss out on a very significant and important relationship if she were required to return to Sudan.
Mr Atem Garang, president of the South Sudanese Australian Community Association ACT, wrote a letter dated 28 September 2017. He said that he had a grave concern about her being returned to South Sudan because there is war in the country since 2013. He said that he was convinced that she may likely be killed if she is deported back. He said that she had spoken to him about her intention to stop drinking and to reconnect with her children. He said that his association would work to support her become a positive contributing member of the community.
A letter dated 12 February 2019 by Ring Mayar, chairperson of the South Sudanese Community Association in Victoria, was tendered. He said that the Applicant’s children were currently experiencing extreme isolation and loneliness because of their mother’s absence from their lives. He pledged the support of his association if she was released including through the provision of a trained mentor who would visit her fortnightly or monthly. He personally committed to provide practical and emotional support, employment, educational, a listening ear and aim to develop a positive relationship with her.
The Dillwynia Correctional Centre Chaplain, Pamela Galea, wrote a letter dated 26 June 2018, in which she said that the Applicant’s fears of returning to her home country were real, and that she would like the opportunity to become a contributing citizen of Australia.
Finally, the Applicant’s son wrote an email dated 7 December 2018 in which he said I don’t want my mother to be deported out of the country she loves.
THE APPLICANT’S CRIMINAL RECORD
A National Police Certificate showing court outcomes against the Applicant’s name was tendered. A summary of the convictions recorded in that certificate appears in the table below.
Court/Date
Event/Offence
Sentence/Comment
Parramatta Local Court
27 September 2005
Maliciously wound Good behaviour bond, with two years’ supervision and a direction to undertake counselling, educational development or drug and alcohol rehabilitation. Fairfield Local Court
7 February 2006
Contravene apprehended violence order $200 fine Burwood Local Court
21 November 2007
Maliciously wound
Maliciously inflict grievous bodily harm
4 months imprisonment
2 years imprisonment
Burwood Local Court
7 March 2012
Resist officer in execution of duty (x2)
Stalk/intimidate intend fear of physical/mental harm
Assault occasioning actual bodily harm (domestic violence)
Contravene prohibition/restriction in apprehended violence order (personal)
Conviction with no other penalty
Bond imposed for 12 months
Bond imposed for 12 months
Conviction with no other penalty
Parramatta Local Court
7 September 2012
Enter inclosed land not prescribed premises without lawful excuse $250 fine Parramatta Local Court
10 October 2012
Fail to state name and address when directed
Not pay train fare and hold valid ticket
Drink intoxicating liquor on train or in public area
$100 fine
$100 fine
$100 fine
Parramatta Local Court
19 December 2012
Assault occasioning actual bodily harm
Assault occasioning actual bodily harm
Fail to appear in accordance with bail granted undertaking
8 months imprisonment
1 month and 14 days imprisonment
1 month imprisonment
Penrith Local Court
22 May 2015
Reckless wounding 2 years imprisonment, non-parole period of 18 months Penrith District Court
7 August 2015
Reckless wounding (appeal of Penrith Local Court sentence of 22 May 2015 listed above)
2 years imprisonment upheld on appeal, non-parole period reduced to from 18 to 11 months
ACT Magistrates Court
31 January 2017
Common assault
Common assault
Possess offensive weapon with intent
Intentionally wound
3 months imprisonment
$750 fine
4 months imprisonment
16 months imprisonment
CONTENTIONS
The Minister contended that the Applicant has a serious and extensive history of malicious criminal offending in Australia. In circumstances where she has committed various violent offences during the past 12 years, the Minister submitted that there is a real risk that she will again engage in criminal conduct in Australia and that on that basis she presents an unacceptable risk of harm to the Australian community.
It was submitted by the Minister that the protection of the Australian community (Primary Consideration 1) and the expectations of the Australian Community (Primary Consideration 3) weigh heavily in favour of affirming the reviewable decision. Primary Consideration 2 was said to weigh slightly in favour of the Applicant, having regard to the fact that her three minor children were not in her care. To the extent that the Tribunal might find that any of the other considerations weigh in her favour, the Minister contended that the weight of the primary considerations strongly outweighed those other considerations. Accordingly, it was submitted that the Tribunal should find that the weight of the considerations favours not revoking the cancellation of the Applicant’s visa.
The Applicant contended that her visa cancellation should be revoked, on the following grounds in particular:
(a)Her traumatic upbringing in Sudan;
(b)The fact that she suffers from schizophrenia and alcoholism. The Applicant asserted that she is taking medication for her mental illness and this was not disputed by the Minister;
(c)There is a low risk of re-offending, she is deeply remorseful for her conduct and wants to be given the chance to be a productive member of the Australian community;
(d)She has lived in Australia for almost 14 years and has substantial ties to her family in this country;
(e)Her six children reside in Australia, are Australian citizens and she is teaching them about their Sudanese language and culture; and
(f)South Sudan is a country of significant conflicts, extreme poverty and human rights abuses and Australia has non-refoulement obligations to her under international law. The Applicant’s legal representative tendered a document titled Report of the Commission on Human Rights in South Sudan to support her assessment of South Sudan’s current human rights situation.
CONSIDERATION
Set out below is the Tribunal’s evaluation of the Applicant’s circumstances against the criteria set out in Direction 79.
Primary Consideration 1: protection of the Australian community from criminal or other serious conduct
The first primary consideration begins with the general statement at paragraph 13.1(1) of Direction 79 that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Furthermore, paragraph 13.1(2) informs decision-makers that they:
... should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of Direction 79 sets out factors that must be had regard to by a decision-maker in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In this case, the following factors are relevant:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;…
d) … the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;…
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)…”
The nature and seriousness of the Applicant’s conduct to date in Australia has been grave. She has repeatedly committed serious, violent crimes, often in a domestic context. Her criminal convictions include maliciously wounding; contravening an apprehended domestic violence order; maliciously inflicting grievous bodily harm; resisting police officers in the execution of their duty; stalking/intimidation with the intention of imposing fear of physical or mental harm; assault occasioning bodily harm; multiple counts of failing to appear in accordance with bail conditions; common assault; possessing an offensive weapon and intentionally wounding.
The Applicant’s criminal history demonstrates a frequency and seriousness of offending throughout her almost 14 years in Australia. She has been convicted of serious criminal offences on multiple occasions commencing shortly after her arrival in 2005. The Applicant’s offending in Australia spans a 12 year period and her sentences for imprisonment (as opposed to the time actually served) account for more than 50 per cent of her time in this country. That is, she has been sentenced to terms of imprisonment totalling 7 years, 4 months and 14 days during her 14 years in Australia. Three separate terms of imprisonment were imposed for periods exceeding 12 months; two terms being for periods of two years and one term being for 16 months. The cumulative effect of the Applicant’s offending indicates a disregard for the law or, at least, an inability to strive to reform her behaviour in accordance with the Australian community’s expectations.
Additionally, the Applicant continued to commit serious offences following her receipt and acknowledgement of the Formal Counselling letter dated 28 February 2013 issued to her by the Department, which amounted to a formal warning to her that any further criminal convictions could result in the cancellation of her visa. Specifically, following her receiving the Formal Counselling letter, in 2015 and 2017 the Applicant was sentenced to terms of imprisonment of, respectively, two years and 18 months (the latter being the total term of imprisonment for three offences), for the serious offences of reckless wounding, common assault, possessing an offensive weapon with intent and intentionally wounding.
In relation to the first of these sentences, in May 2015, at the Penrith Local Court, Magistrate Van Zuylen made the following sentencing remarks:
In this matter [the Applicant] has pleaded guilty to reckless wounding. She had been at the house for three days, there was an argument, the accused, that is [the Applicant], took possession of [the complainant’s, the then boyfriend of the Applicant] keycard, taunted him with his keycard, tried to retrieve it. As the complainant reached to retrieve the keycard the accused [the Applicant] produced a knife in her right [hand], stabbed the complainant to the left side of his face. The force used by the accused was enough to cut through all layers of skin in the victim's mouth, left cheek and go through into his mouth.
…Prior to police arrival the accused ran away. They then arrested her, she was well affected by alcohol, noticed blood on her. She was taken to Blacktown Police Station, entered into custody. She was considered highly intoxicated.
…[The injuries were] Extremely serious, on the lower cheek near the mouth. It was a stab at the face of the victim. In the Court's view, it is a dreadful injury. It could have been even worse. [The Applicant] has a lengthy record, has very serious matters of violence on her record. In 2005, for malicious wounding she got a two year good behaviour bond. She breached that by a malicious grievous bodily harm, so for the wounding she eventually got a four month prison sentence. For grievous bodily harm in 2007, two years, non-parole period 12 months, 2012, stalk/intimidate, good behaviour bond. Good behaviour bond for assault occasioning actual bodily harm. 2012, eight months, non-parole period three months, assault occasioning actual bodily harm.
In January 2017, at the ACT Magistrates Court, Magistrate Campbell made the following sentencing remarks:
The fact that the wounding of Mr A [the Applicant's then domestic partner]… was not insignificant…certainly it was more than a mere cut. There was reference to surgery in the hospital records, and it was clear that he was kept in overnight and there was a very detailed examination of his abdomen to see if any organs had been in fact damaged. Although the pre-sentence report says that she now has some insight into her conduct, and I hope that is true, there haven't been any other real signs of genuine remorse or contrition as are required for sentencing law purposes.
It doesn’t just mean somebody saying they are sorry, but it’s a genuine atonement or reformation into a law-abiding member of the community…The record, of course, if deeply concerning and it seems to me that the prospects for rehabilitation, as in reformation into a law-abiding member of the community, free from the effects of alcohol, do appear to be somewhat ordinary at this stage. The need for specific deterrence and perhaps more than anything protection of the community from the defendant’s conduct appear to me still to be paramount sentencing considerations.
The Tribunal finds that the Applicant’s offences have been serious, violent and frequent. The ministerial direction requires that we place significant weight on offences of this character. The most recent offence, serious enough to attract a substantial prison sentence, was commissioned after being warned that further offending could give rise to a cancellation of her visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction 79 states that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Given the nature, seriousness and sustained period of the Applicant’s offending, it appears there is a significant risk to the Australian community that she will re-offend and that such re-offending is likely to be of the same character as most of her previous offending, that is, violent offending, with the potential for serious physical injury to any victims. Multiple terms of imprisonment have failed to prevent re-offending by the Applicant of further violent crime.
The Applicant told the Tribunal that alcohol abuse had been a factor in much of her offending: when I drink alcohol that’s when I committed the crime. She recalled very few details of any of the occasions of offending because of being intoxicated. She used alcohol as a coping mechanism to deal with the trauma of her childhood and the loss of her children in Australia. She said that she has been on medication for her mental illness since soon after arriving in Australia, but that when she drinks she does not take the medication.
The difficulty facing the Applicant in these circumstances, in the Tribunal’s opinion, is that there seems very little assurance that the factors contributing to the commissioning of violent crimes will not recur. The elements of the Applicant’s life which have previously motivated her to resort to alcohol evidently persist, and the availability of medication does not appear to have obviated the risk that she will succumb to those elements. The Applicant gave evidence of her resolve never to drink alcohol again but, given her frequent past relapses into alcohol abuse notwithstanding being sent to prison and being warned that her visa may be cancelled, the Tribunal can place little weight on these assurances. Her representative placed emphasis on the factors contributing to her recidivism:
…her low level of education or no education at all, poor English language skills, and lack of other skills meant that she would have had great difficulty in studying, finding employment and so on. It also made her vulnerable of turning to alcohol…
The Tribunal accepts that these matters may be factors causative of her pattern of offending, but the primary consideration requires us to focus squarely on the effects of the offending, not the causes.
The Applicant provided limited evidence to the Tribunal of genuine steps whilst imprisoned to rehabilitate or put herself in a position to start to make a positive contribution to the Australian community following the completion of her most recent term of imprisonment and now detention in an immigration facility. Although she completed the RUSH (Real Understanding of Self-Help) program in April 2018 as part of the Intensive Drug and Alcohol Treatment Program Yallul Kaliarna run by Corrective Services New South Wales, the Tribunal accepts the contention of the Minister that little weight should be given to this program where the Applicant has continued to report serious issues with drinking and alcohol … and the course was undertaken in a controlled environment.
One factor which may be persuasive of an applicant’s resolve not to further offend is the extent to which the applicant accepts responsibility for his or her past offending. An expression of remorse for past offending is an important way of demonstrating that an applicant accepts that responsibility. In her written submissions and during the hearing, the Applicant expressed deep remorse and regret for the offences that she had committed, but in the course of giving evidence she indicated that there were some convictions recorded against her which were unfair, and where she did not in fact commit the crime she was charged with. The Applicant was unclear as to precisely which offences this comment was directed to, although she did say with respect to the first offence committed in Australia – that of maliciously wounding her then husband in 2005 – that he had made up evidence against her. It is also unclear as to whether the Applicant considered that she was fairly convicted of the offences for which she was sentenced in January 2017 in the ACT Magistrates Court. She told the Tribunal that I didn’t intend to harm the alleged victim. This would appear to be consistent with the sentencing remarks of the Magistrate in relation to that offence, where she noted that there haven't been any other real signs of genuine remorse or contrition on the Applicant’s part.
The Tribunal must, of course, treat the fact of a conviction in a competent court as probative of both the fact of conviction and of the material upon which the conviction was based. In Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 the Federal Court considered a contested prior conviction in the context of the power to deport in s 200 of the Act. It determined (at [41]-[43]):
41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based...
42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence...
43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based …, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences …; and
(b) limits inconsistency between decisions of the criminal courts and those of tribunals...
As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted... [References omitted]
In the present case the Tribunal is reviewing a discretionary decision not to revoke the cancellation of the Applicant’s visa. It is not a case in which a conviction is the foundation for the exercise of that discretionary decision as it would be if the Tribunal was reviewing a decision, say, under s 501(2)(a) of the Act on the basis of a person’s not passing the character test because he or she has been convicted of an offence of a sort identified in s 501(6). Accordingly, it is permitted to have regard to any evidence which might place the circumstances of the Applicant’s offending, or alleged offending, in a light more favourable to her than the bare fact of the convictions might suggest (see Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279).
In this case, however, evidence substantive enough to displace the factual circumstances underpinning the Applicant’s convictions is almost entirely lacking. The Applicant’s evidence regarding unfair convictions emerged in the course of her cross-examination; it was unclear which of the offences she had been convicted of fell into this category. Although her representative pressed the Tribunal in closing submissions to accept that doubt about the evidentiary basis for the convictions should militate against a finding that she was likely to reoffend, no notice of this evidence or those submissions was made prior to the cross-examination, leaving the Minister no opportunity to bring forward refuting evidence. The assertion that she did not commit some of the offences she was charged with must be juxtaposed with her own evidence that she did not recall the details of many of the offences because she was drunk at the time.
In the circumstances, the Tribunal is compelled to regard this late denial of culpability as an indication that the Applicant does not accept responsibility for crimes which the Tribunal is obliged to find she committed between 2005 and 2017. Her expression of remorse for the offences that she has committed logically cannot extend to offences which she denies having committed. This finding that she does not accept responsibility for (some of) her crimes must weigh against the Tribunal having the requisite degree of satisfaction that she will not commit further crimes of this character.
The Applicant’s representative submitted that:
…having her visa cancelled has been the prompt that alerted her of the steep consequences of her actions and has motivated her to commit to becoming a law-abiding citizen. She is now committed to continuing with her schizophrenic medication and no longer letting her past traumas define her actions.
The Tribunal has difficulty accepting these assurances. Similar threats of dire consequences in the past do not appear to have ameliorated her recidivism. Despite the likelihood of further imprisonment, and a clear warning from the Department about the threat of visa cancellation, the Applicant committed further serious and violent offences in the ACT in 2016. The sentencing Magistrate’s observation of a lack of genuine remorse or contrition on the Applicant’s part only adds to the Tribunal’s concern that she does not presently possess the personal qualities required to avert future offending.
Having regard to all of the above, including the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community that she would engage in further serious criminal conduct, the Tribunal considers that the primary consideration to protect the Australian community weighs heavily against her.
Primary Consideration 2: the best interests of minor children in Australia
Paragraph 13.2(1) of Direction 79 requires decision-makers to make a determination about whether revocation is in the bests interests of a child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made (paragraph 13.2(2)).
Paragraph 13.2(4) provides a list of factors that must be considered in determining the best interests of the child, including:
·the nature and duration of the relationship between the child and the non-citizen (paragraph 13.2(4)(a));
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (paragraph 13.2(4)(b));
·the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (paragraph 13.2(4)(c));
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways (paragraph 13.2(4)(d)); and
·whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 13.2(4)(e)).
Relevantly to this consideration, the Applicant is the biological mother of three children under the age of 18 living in Australia. All three of these children have either been legally and permanently adopted (i.e. her twin daughters aged 13 years old) or are in the process of being adopted (i.e. her youngest son aged 8 years old). All three children are in the care and control of a family not related to the Applicant.
The Applicant gave evidence that she is in monthly contact with her children via telephone. A statement by the children’s adoptive parents said the Applicant physically met the children four times a year. She is said to be providing her children with instruction in their Sudanese culture and that cancellation of her visa would restrict or sever this source of culture in her children’s lives as South Sudanese Australians. Mr Mayar, of the South Sudanese Community Association in Victoria, said in his tendered statement that the children were currently experiencing extreme isolation and loneliness because of their mother’s absence from their lives, though this is not reflected in the evidence of either the adoptive parents or the Applicant herself. The adoptive parents did say in their statement that they considered that it had been helpful to the children’s sense of identity and understanding of their cultural heritage to have had contact with their mother and felt that they would miss out on a very significant and important relationship is she was no longer here.
It was submitted that the removal of their mother from Australia would be devastating to the minor children because of the loss of cultural connection and of difficulties communicating with their birth mother. The Tribunal accepts that there may be detriment to the children on both counts, but observes, consistent with the criteria in Direction 79, that on any objective measure the Applicant does not have a substantial role in her children’s lives. The Tribunal heard that the children were removed from her care at a very young age (three days old in the case of the twin girls) and evidently others have taken day-to-day responsibility for their upbringing in the years since. The closing submission made by the Applicant’s legal representative – that she lost her children – seems to be a fair summary of her present connection with them.
The Tribunal also notes the evidence of the Applicant’s former husband, to the effect that under Sudanese culture he regards the Applicant’s children as his responsibility. In the circumstances he may be in a position to substitute for the Applicant as a conduit of Sudanese language and culture for the younger children.
Nevertheless, the Tribunal accepts that there will be difficulties in the Applicant maintaining a relationship with her children if she is returned to Sudan. Those difficulties may well be adverse to the best interests of the children. Accordingly, the Tribunal considers that this primary consideration weights slightly in favour of the Applicant.
Primary Consideration 3: expectations of the Australian community
Paragraph 13.3(1) of Direction 79 states that:
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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Mortimer J considered paragraph 13.3(1) in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and said that:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64] - [66]).
The Applicant has a sustained and serious criminal history commencing shortly after her arrival in Australia. As set out in Direction 79, the Australian community expects that non-citizens in Australia will obey Australian laws. It is also expected that people seek to rehabilitate themselves whilst imprisoned such that they do not re-offend and can contribute to the community upon their release. Plainly, the Applicant has failed on both of these measures over many years. It must be doubted that a person with such a consistent pattern of violent offending, and with a demonstrated reluctance or inability to take advantage of opportunities to correct her behaviour, would be viewed with any great tolerance by the Australian community.
It was put to the Applicant in cross-examination that part of the privilege of residing in Australia is that residents should obey its laws, respect law enforcement officials and not put in danger the safety of others. It was further put to the Applicant that her record of offending showed that she had a blatant disregard for the members of the Australian community or the laws of Australia. The Applicant agreed with both contentions.
The Minister further contended that the Australian community does not tolerate domestic or family violence, including serious crimes of the kind perpetrated by the Applicant. The Minister’s legal representative referred to Yildirim and Minister for Immigration and Border Protection [2017] AATA 1353 where Deputy President Constance stated at [68], in relation to Primary Consideration 3:
Although it is sometimes difficult to determine the expectations of the Australian community in relation to a particular issue, this is not the case in relation to domestic violence. The Australian community does not tolerate such violence.
The Applicant submitted that the Australian community also expects [an applicant] is not arbitrarily taken away, especially to dangerous places where their lives are at risk. It seems to us, however, that the question of such consequences for the Applicant if her visa remains cancelled is a matter better dealt with in consideration of Australia’s non-refoulement obligations.
Accordingly, and having regard to that serious criminal history, it is highly likely that the Australian community would not expect a non-citizen such as the Applicant who has committed such significant crimes to continue to be allowed to hold a visa to remain in Australia. For the above reasons, the Tribunal considers that this primary consideration weighs strongly against the Applicant.
Other considerations under Direction 79
Paragraph 14(1) in Part C of Direction 79 sets out the other considerations for decision-makers in deciding whether to revoke the mandatory cancellation of a visa, being:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
Paragraph 14.1 of Direction 79 states that:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. 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 have their visa reinstated. 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 remains cancelled, they would face the prospect of indefinite immigration detention.
The Applicant asserted that Australia’s international non-refoulement obligations weighed in favour of the Tribunal revoking the reviewable decision, for the following reasons:
As the Applicant was granted entry into Australia on a Class XB Subclass 202 Special Humanitarian visa, the Australian government obviously found that Sudan or South Sudan was not a safe environment for the Applicant or her children. Sudan and South Sudan continue to be a dangerous place as the civil war as entered its fifth year, with almost 2 million people internally displaced and 2 million seeking refuge in neighboring countries, according to Human Rights Watch. The Applicant is also considered a person of interest to local authorities as there is evidence which suggests that authorities are still after her for her former husband. It is alleged that her former husband conspired to attack Caucasian citizens during the Second Sudanese Civil War. Therefore, if the Applicant returns to South Sudan, she would be at risk of persecution.
Sudan and South Sudan are still not safe countries for the Applicant to return. This is because in Sudan, country-wide civil protects began in late 2018. It was reported that in the first 2 weeks of 2019, at least 40 people were killed in the daily protests that have occurred across the country. Cash shortages, high levels of inflation and the increase price of staple goods (bread & gas) have prompted these country-to-city protests. Recently the protests have morphed into a general anger towards the Bashir government, with the people seeking to end his rule over South Sudan. The opposition party are calling for an interim government. In response, the Government of Sudan cancelled social media and put in place curfews. Emergency laws were also implemented and classes in schools and universities have been suspended. Security forces have use physical force, tear gas, rubber bullets and in some cases live ammunition in an attempt to deter protests.
In South Sudan, the humanitarian situation has not improved. As noted by the Human Rights Watch, despite the peace agreement, unrest continues and government forces are committing new abuses against civilians. There has been evidence of counterinsurgency operations in south and west of Wau that began in June 2018 which has cause tens of thousands to flee. Soldiers have attacked and killed civilians, looted, burned and destroyed homes, and have occupied schools and hospitals.
The ‘Cessation of Hostilities’ agreement was signed on 27 June 2018 but it failed to stop South Sudan army operating in many areas in an attempt to gain more land from rebels. Violence resumed late September 2018 after the peace agreement was signed. The impact of these ‘clashes’ on civilians are hard to determine as the violence continues. The government is yet to release a civilian death toll and access to the affected areas has been closed off since late August 2018. As is common with most violent regions, women are experiencing high numbers of sexual assault. It is claimed that some assaults are based on ethnicity as one woman reported that she had to lie about being Dinka to avoid being raped. [Footnotes omitted]
The Applicant also provided the Tribunal in oral submissions with a copy of the Report of the Commission on Human Rights in South Sudan dated 21 February 2019. The report provides an overview of the human rights situation in South Sudan, including developments and incidents that occurred in 2018. In the report the Commission concludes that despite the signing of the peace agreement, violations including rape and sexual violence continue to occur which may amount to international crimes, including war crimes and crimes against humanity.
Mr Garang, of the South Sudanese Australian Community Association ACT, and the Applicant herself referred to the likelihood that she would be killed if she returned to South Sudan.[1]
[1] The Applicant referred in her statement of 5 March 2018 to my homeland of Suddan. We have taken this to be a reference to South Sudan.
The Minister also acknowledged that the Tribunal must turn its mind to any international non-refoulement obligations arising if the Applicant were returned to either Sudan or South Sudan (BCR v Minister for Immigration and Border Protection [2017] FCAFC 96, upheld by the High Court of Australia in BCR16 v Minister for Immigration and Border Protection [2017] HCA Trans 240). However, the Minister’s legal representative also asserted that the Tribunal should place limited weight on the Applicant’s claimed risk of harm in Sudan/South Sudan. The Respondent made the following contentions in relation to Australia’s international non-refoulement obligations to the Applicant:
a)first, the Tribunal is not required to conduct an extensive assessment of the Applicant’s claims to fear harm in South Sudan: see Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28], and also HGBY and Minister for Immigration and Border Protection [2017] AATA 2824 at [165] and PXYJ and Minister for Immigration and Border Protection [2017] AATA 1961 at [86]-[88]. In this context, it remains highly relevant to the Tribunal’s weighing exercise that the Applicant is able to make an application for a protection visa and to have her claims assessed and tested under the protection visa regime due to the operation of s 501E(2)(a) of the Act [i.e. in the event the Tribunal affirms the reviewable decision];
b)second, were the Applicant to make a protection visa application, her non-refoulement claims would be determined before any consideration is given to character concerns (see Direction No. 75 – "Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)" and also MBQX and MIBP [2017] AATA 2410).
c)third, the fact that the Applicant was granted a humanitarian visa in 2005 does not speak to whether she now faces serious or significant harm in South Sudan. In this context, the Applicant has not advanced any detailed probative evidence to support a finding that she faces serious or significant harm in South Sudan. The Applicant's claims relating to the circumstances she may face if returned to South Sudan relate to the extent of impediments she may face upon her return, rather than an articulation of a fear that her life or freedom would be threatened on account of her race, religion, nationality, membership of a particular social group or political opinion;
d)fourth, the Respondent accepts that the Applicant has not lived in South Sudan for over a decade, she claims to have experienced and witnessed traumatic events as a child in Sudan, she remains traumatised by these events, and that on the basis of the current evidence the Applicant has limited family or social contacts in South Sudan more generally. However, it is left unclear by the Applicant as to how these issues amount to serious or significant harm under the relevant provisions of the Act…
The Tribunal accepts that in principle non-refoulement obligations may arise by repatriating a person to Sudan or South Sudan. However, it also accepts that if such obligations do arise, they would act as a barrier to the Tribunal affirming the reviewable decision only if it can be satisfied that the Applicant falls into the category of person that would attract those obligations. In this case, we are not so satisfied. We accept that the human rights position in South Sudan, in particular, is precarious and that citizens of that country may well face a higher degree of danger to their safety and property than would a person in Australia. But it does not appear that the Applicant falls into a category or class of person where it could be said that her life or freedom would be at risk on account of her race, religion, nationality or some other characteristic which attracts the non-refoulement obligations. The threat she would face in Sudan or South Sudan would not appear to be any greater than that faced by any other inhabitant.
The Applicant asserted that her former husband had been accused by authorities of conspiring with others to have white people killed, and this fact would place her at greater risk of reprisals should she return. No flesh was placed on the bones of this allegation; however the Applicant submitted that it would be difficult for her to provide evidence of specific risk of harm, given that she has not lived in Sudan/South Sudan for 15 years. The Tribunal accepts that proposition, but notes that, having raised the issue as a relevant factor, she now bears the burden of providing some satisfaction that it is real.
However, there is insufficient evidence before the Tribunal on this question to reach any certain conclusion as to the likelihood of harm to the Applicant following her repatriation. Giving the Applicant the benefit of doubt on this question, the Tribunal considers that this consideration weighs slightly in her favour.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 79 states:
...Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia for almost 14 years. She was not a child upon her arrival to Australia, being 26 years old at the time. She began offending almost immediately, appearing before the Parramatta Local Court for the offence of maliciously wound less than four months following her arrival. This pattern of serious criminal and violent offending has continued throughout her 14 years here. Accordingly, and as the Applicant admitted under cross-examination, she could not be said to have contributed positively to the Australian community during that time.
However, she does have six children in Australia who are all Australian citizens, together with a sister residing in Melbourne. Under cross-examination she noted that she has monthly contact with her minor children via telephone. The Applicant is undoubtedly a source of knowledge and teaching for her children in relation to their Sudanese culture; certainly her adult son appeared to value her role in his life. However, it is also clear that, given her history of offending, imprisonment and difficult personal circumstances, the Applicant has not played any greater than a marginal role in her children’s lives, and there is little before the Tribunal to suggest that would change if she remained in Australia.
The Applicant expressed a desire to continue to have a role in her adult children’s lives, and to preserve her contact with her sister. They were described as a foundation part of [her] support system. There are, however, family members in her country of origin who it appears could play a similar role in her life; moreover, we see no reason why she should not be able to maintain contact by letter, email or telephone with the Australian members of her family if she returns to South Sudan.
The Applicant has also not demonstrated any willingness to undertake any education or English language classes, to seek employment or to engage in any other activities to establish a positive role in the community. Even taking into account the extensive periods she has spent in prison, she appears to have made remarkably little contribution as a resident of this country. Having regard to the above, the relative strength, nature and duration of the Applicant’s ties to Australia do not weigh in favour of the Tribunal deciding to cancel the revocation of her visa.
Impact on Australian business interests
This consideration was not relevant to the Tribunal’s determination of this application.
Impact on victims
Paragraph 14.4 of Direction 79 requires that:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
There was no evidence before the Tribunal about the impact on the Applicant’s victims of a decision not to revoke her visa. The Minister submitted that her criminal offending has caused significant and substantial harm to members of the Australian community. However, in the absence of any evidence to this effect the Tribunal must regard this factor as weighing neither for nor against the Applicant.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 79 requires the Tribunal to consider:
The extent of any impediments that the non-citizen 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’s representative submitted that if she were required to return to Sudan or South Sudan she would become financially unstable, that she would receive no treatment for her mental illness and would be at risk of self-harm because her children were her life. The representative added:
If removed to South Sudan she would have no children with her and she may not be able to live.
The Applicant is 40 years old and it was accepted that she suffers from alcoholism and schizophrenia. It appears that there would be no substantial language or cultural barriers in circumstances where she lived in Sudan until the age of 21. While the Applicant would presumably have access to services available to other South Sudanese citizens, given her current medical requirements and the purported lack of reliable health services, she may encounter difficulty obtaining the treatment and medication her conditions warrant. On the other hand, her parents and some of her siblings live there and, given her continued communication with them while in Australia, may be assumed to be likely to assist her in adjusting again to life in that country.
Several witness statements made reference to difficult living conditions in South Sudan. Mr Garang, for example, of the South Sudanese Australian Community Association (ACT) referred to a humanitarian disaster there and that many people are dying of hunger. The report of the Commission on Human Rights in South Sudan documents other problems, including gender-based violence, rape and the burning down of people’s homes. The Tribunal accepts that the Applicant’s living standards would most probably be significantly reduced should she be required to move from Australia to South Sudan. It also notes, however, that paragraph 14.5 of Direction 79 makes reference to living standards in the context of what is generally available to other citizens of that country. In this context Direction 79 contemplates that the experience of (lower) living standards generally prevailing in a person’s country of origin is a necessary corollary of repatriation following the cancellation of a visa in these circumstances. Nonetheless, we accept that, even by the standards of South Sudan, the Applicant will encounter impediments in obtaining access to basic services and maintaining a sustainable standard of living on account of her conditions.
Accordingly, the Tribunal finds that this consideration weighs in favour of the Applicant.
CONCLUSION
It follows from the preceding paragraphs that two of the three primary considerations under Direction 79 weigh strongly against the Applicant in the Tribunal’s determination of her application for revocation of the decision of the Respondent’s delegate not to cancel her visa. The other primary consideration weighs only slightly in her favour. The Tribunal is required to give greater weight to the primary considerations than to the other considerations. While two of the other (non-primary) considerations weigh in the Applicant’s favour, the three other considerations make no contribution to her case.
Ultimately, the two primary considerations relating to protection of the Australian community from criminal conduct and the expectations of that community weigh heavily against revoking the cancellation of the Applicant’s visa. The slight weight afforded by the third primary consideration and the other considerations fails to tip the balance in her favour. The Preamble to Direction 79 states:
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 …the visa.
We consider that this is just such a case. Having regard to the above assessment of all of the primary and other considerations in Direction 79, the Tribunal finds that the correct or preferable decision is to find in favour of the Minister.
The Applicant’s legal representative emphasised the significant emotional and psychological trauma which may have triggered or at least exacerbated her mental illness. The resort to alcohol as a coping mechanism to deal with the unhappiness in her life and/or her mental illness might be described as a natural human reaction to these pressures. The Tribunal empathises with the Applicant’s position but is reminded that the Ministerial Direction requires that the protection of the Australian community from further violence at her hands is of greater importance than offering the Applicant further opportunities for treatment or reform. In these circumstances the highly unstable and disruptive elements in her life make it more likely, not less likely, that the Tribunal should uphold the delegate’s reviewable decision.
Therefore, pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), and for the reasons set out above, the Tribunal affirms the decision made by the Minister’s delegate on 10 January 2019 to not exercise the discretion in s 501CA(4) of the Act to revoke the original decision made under s 501(3A) to cancel the Applicant’s visa.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries AO and Member William Frost.
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Associate
Dated: 2 April 2019
Date(s) of hearing: 19-20 March 2019 Advocate for the Applicant: Ms Er-kai Wang, Legal Aid ACT Solicitors for the Minister: Ms Rachael Law, Clayton Utz
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