JJNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 62
•27 January 2021
JJNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 62 (27 January 2021)
Division:GENERAL DIVISION
File Number: 2018/2333
Re:JJNY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:27 January 2021
Place:Brisbane
The Tribunal affirms the decision under review.
....................................[SGD]....................................
Deputy President J Sosso
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of a Class BB Subclass 155 visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – consideration of Australia’s international non-refoulment obligations – decision under review affirmed.
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)South Sudanese Nationality Act 2011
CASES
Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65
AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451/[2016] FCAFC 105
Ali v Minister for Home Affairs [2020] FCAFC 109
BDQ19 v Minister for Home Affairs [2019] FCA 1630
Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v Moolarvie [2008] WASC 37
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hernandez v Minister for Home Affairs [2020] FCA 415
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151/267 FCR 320
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Home Affairs v Stowers [2020] FCA 407
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Salahuddin v Minister for Immigration and Border Protection [2013] FCA 141Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Cocozza and Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084
Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – South Sudan’ (5 October 2016)
Mogga, Joseph Lou K., ‘The mental health treatment gap in South Sudan’ (February 2019) South Sudan Medical Journal
United Nations Human Rights Council, ‘Report on the human rights situation in South Sudan: Report of the United Nations High Commissioner for Human Rights’ (9 March 2015)
United States Department of State, ‘South Sudan 2018 Human Rights Report’ (13 March 2019)United Nations High Commissioner on Refugees, ‘UNHCR Position on Returns to South Sudan – Update II’ (April 2019)
REASONS FOR DECISION
Deputy President J Sosso
27 January 2021
INTRODUCTION
On 16 March 2020 the Federal Court (Anastassiou J) set aside the decision of the Tribunal of 6 July 2018 which affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) under s 501CA(4) of the Migration Act 1958 (the Act) not to revoke the cancellation of JJNY’s (the Applicant) Class BB Subclass 155 visa and remitted the matter to the Tribunal for reconsideration according to law – Exhibit 1 pp. 402 - 403.
The Applicant was born in Sudan in June 1989 and is of Dinka ethnicity. He is the second oldest of six children. The Applicant’s mother and father married in a refugee camp in Ethiopia and their two eldest children were born in Sudan. Due to the civil war the family was forced to move back to Ethiopia before eventually returning to Sudan. The Applicant’s father was separated from the family during this time and the family then moved to refugee camps in Kenya – Exhibit 5 p. 2 para 7 – 8.
The Applicant’s mother, who is referred to in this decision as “MAM”, in a statement dated 5 October 2020 explained the trauma experienced by her family – Exhibit 5 p. 2 para 9:
“My children were very good kids when they were young. They helped me and listened to me a lot. But being born in war created a lot of problems for my own and other South Sudanese children. Running away from bombs, not knowing whether the day will bring peace or fighting and watching people being killed – these really affected my children and have ongoing impacts. Many people were killed in front of us including one of our neighbours and his four children whom my kids used to play with.”
The Applicant was assessed on 30 September 2020 via video link by Dr Nina Zimmerman, Consultant Psychiatrist. The Applicant provided Dr Zimmerman the following information about his childhood – Exhibit 5 p. 24 para 13:
“[JJNY] believed he was born in a town in Sudan but confessed to having little memory of the location. He said that he cannot recall going to school in Sudan, saying, ‘the War was happening – it was fighting everywhere’. He stated that the family was moving constantly in order to flee the fighting and to try to find somewhere safe. He said that he was many people being killed and lived with shooting and explosions an everyday part of life. [JJNY] said that his father had something to do with the army and was involved in the fighting but was not sure of his role. He said that the family became separated at some stage and when he was about eleven, he left Sudan with his mother and siblings. He stated that he hasn’t seen or communicated with his father since…”
MAM and her children arrived in Australia on 22 July 2002, the Applicant holding a Global Special Humanitarian (Class BA Subclass 200) visa.
On 28 December 2012 the Applicant was granted a Class BB Subclass 155 five-year Resident Return visa – Exhibit 1 PG 3 p 11.
On 6 August 2010 the Department of Immigration and Citizenship notified the Applicant that his then visa may be liable for cancellation under s 501 of the Act on character grounds – Exhibit 1 PG 25 p. 151.
Subsequently, on 1 March 2011 a delegate of the Respondent notified the Applicant that having taken account of all relevant considerations, a decision had been made not to cancel his then visa on character grounds “on this occasion”. However, the Applicant was given the following warning:
“Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
(bold in the original)
The above correspondence was generated following the commission of a number of criminal offences by the Applicant. Those offences are discussed in detail below.
On 10 May 2012 an officer of the Department of Immigration and Citizenship sent a formal counselling letter to the Applicant – Exhibit 1 PG 24 pp. 145 – 146.
The officer drew the Applicant’s attention to s 501 of the Act and provided a copy of the section for his information. The following information was given to the Applicant – Exhibit 1 PG 24 p.145:
“At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia.
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.”
(bold in the original)
Unfortunately, after this letter was sent to the Applicant he appeared before the Sunshine Magistrates Court on 3 November 2014, the Melbourne Magistrates Court on 6 May 2016 and the Sunshine Magistrates Court on 29 May 2017 after being charged with multiple offences and on each occasion being convicted of the said offences – Exhibit 1 G 14 pp. 74 – 77. The offences were many and varied and included theft, traffic offences, drug charges and, most seriously, reckless conduct endangering life.
Since October 2016 the Applicant has been held, firstly, in criminal custody and subsequently in immigration detention – Applicant’s Statement of Facts, Issues and Contentions 7 September 2020 (ASFIC) Exhibit 2, para 9.
On 16 June 2017 a delegate of the Respondent corresponded with the Applicant informing him that his visa had been mandatorily cancelled under s 501(3A) of the Act – Exhibit 1 PG 3 pp. 11 – 28.
Relevant extracts from the letter are set out below – Exhibit 1 PG 3 at pp. 11 – 12:
“Failure to pass the character test
Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:
You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act. Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 28 July 2009 you were convicted Recklessly Cause Serious Injury and Robbery and sentenced to 17 months imprisonment…
Imprisonment on a full-time basis
Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were 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.
On 29 May 2017 you were convicted of a number of offences including Possess Heroin, Possess Methylamphetamine, Theft of a Motor Vehicle, Theft, Commit Indictable Offence Whilst on Bail (two counts), Unlicensed Driving (three counts), Fraud Use Identifying No. Auth/Req-RSA, State False Name When Requested, Reckless Conduct Endanger Life and Possess Controlled Weapon Without Excuse and sentenced to an aggregate imprisonment of nine months.”
The Applicant subsequently requested revocation of the mandatory visa cancellation – Exhibit 1 G 6 p. 36. A detailed submission dated 22 December 2017 was made by his then legal representatives (GTC Lawyers) setting out reasons for the revocation of the visa cancellation – Exhibit 1 PG 21 pp. 126 – 141.
As previously noted, on 23 April 2018 a delegate of the Minister decided, under s 501CA(4), not to revoke the visa cancellation decision. Set out below is the delegate’s summing up – Exhibit 1 PG 13 pp. 72 – 73:
“98. In considering whether I was satisfied that there is another reason why the decision to cancel [JJNY’s] visa should be revoked, I gave significant weight to the serious nature of the crimes committed by [JJNY], that of Recklessly cause serious injury and Robbery and find that [JJNY] should expect to forfeit the right to remain in Australia.
99. I also find that the Australian community could be exposed to harm should [JJNY] reoffend in a similar fashion. I could not rule out the possibility of further offending by [JJNY]. The Australian community should not have to accept any risk of further harm.
100. Given the crimes committed by [JJNY], I am of the view that the Australian community would expect that [JJNY’S] visa would remain cancelled and that I would not revoke the mandatory cancellation decision.
101. I have considered the best interest of [JJNY’s] Australian citizen niece and Australian citizen nephew as a primary consideration and have found that their best interests would be served by the revocation of the mandatory visa cancellation decision.
102. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a high tolerance of risk of re-offending by [JJNY], than I otherwise would, because he has lived in Australia for most of their life.
103. In addition, in making this decision I have considered the ties that [JJNY] has formed by reason of his residence in Australia over some 15 years, his contribution to the Australian community and the consequences of my decision for his immediate family in Australia.
104. In reaching my decision I conclude that [JJNY] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of his Australian citizen niece and Australian citizen nephew as a primary consideration, and other countervailing considerations as described above.
105. Having given full consideration to all of these matters, I am not satisfied that there is another reason why the original decision to cancel [JJNY’s] Class BB Subclass 155 Five Year Resident Return visa should be revoked as required by s501CA(4)(b)(ii). As I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and [JJNY’s] visa remains cancelled.”
As previously noted, the Tribunal affirmed the decision under review but the Federal Court subsequently set aside that decision and remitted the matter for reconsideration according to law.
APPLICANT’S CRIMINAL HISTORY
The Applicant has a lengthy criminal history commencing when he was 16 or 17 years of age – Transcript (Tr.) 14.10.2020 p. 17. That history is set out in the Table below – Exhibit 1 PG 14 pp. 74 – 79. At the Hearing the Applicant accepted that the offences in the Table below were offences that he had committed – Tr. 14.10.2020 p. 47:
Court and Date Offence(s) Result Sunshine Magistrates Court
29/05/2017
Theft
Commit indictable offence whilst on bail granted (2 charges)
Unlicensed driving (3 charges)
Fraud use identifying no. auth/req – rsa
State false name when requested
Reckless conduct
Endanger life
Aggregate 9 months imprisonment concurrent.
Pay costs $279.00
Contravene community correction order Proven Breach re 06/05/2016
Fail to produce licence on request
Refuse to give further breath sample
Use unregistered motor vehicle – highway (3 charges)
Fail ens 2 passen not occupy same seat
Fail to state name/address to mopf
Breach of community correction order. Order cancelled. Convicted and discharged.
as [JJNY]
Possess heroin
Possess methylamphetamine
On each charge: aggregate 9 months imprisonment. concurrent Theft of a motor vehicle Aggregate 9 months imprisonment. Concurrent. Disqualified from driving for 3 months. Possess controlled weapon without excuse Aggregate 9 months imprisonment, concurrent. Breach re 06/05/2016
State false name when requested (4 charges)
Drive whilst disqualified (2 charges)
Drunk in a public place
Refuse or fail to state name and address
Assault police
Prohibited person possess a firearm
Poss proh weapon w/o exemption/approval
Posess dangerous article in public plce
Possess controlled weapon without excuse
Commit indictable offence whilst on bail
Fail to answer bail granted (2 charges)
Enter building with intent to steal
Theft (2 charges)
Dishon u/take in realisatn stolen goods
Obtain property by deception
Possess methylamphetamine
Unlicensed driving (2 charges)
Possess amphetamine
Theft of a motor vehicle
Dishonestly receive stolen goods (2 charges)
Resist police
Fail to state name/address on request
Breach of community correction order. Order cancelled. Aggregate 4 months imprisonment. Melbourne Magistrates Court
06/05/2016
Theft of a motor vehicle unlicensed driving Aggregate 152 days imprisonment concurrent. State false name when requested (4 charges)
Fail to produce licence on request
Refuse to give further breath sample
Use unregistered motor vehicle – highway (3 charges)
Fail ens 2 passen not occupy same seat
Fail to state name/address to mopf
Drive whilst disqualified (2 charges)
Drink in a public place
Refuse or fail to state to name and address
Assault police
Commit indictable offence whilst on bail
Fail to answer bail granted (2 charges)
Enter building with intent to steal
Unlicensed driving (2 charges)
Theft of a motor vehicle
Theft
Resist police
Fail to state name/address on request
Convicted and a community correction order for 18 months. Prohibited person possess a firearm
Poss proh weapon w/o exemption/approval
Possess dangerous article in public plce
Possess controlled weapon without excuse
Dishon u/take in realisatn stolen goods
Obtain property by deception
Dishonestly receive stolen goods (2 charges)
On each charge: convicted and a community correction order for 18 months. Theft Convicted and a community correction order for 18 months.
Pay compensation $4180.00
Possess methylamphetamine
Possess amphetamine
Convicted and a community correction order for 18 months Dishon u/take in retention stolen goods
Carry dangerous article in public place
On each charge: aggregate 152 days imprisonment. Concurrent. Possess heroin
Possess drug of dependence (not named) (2 charges)
Aggregate 152 days imprisonment. Concurrent. Poss cartridge ammunition w/o lic/permit Aggregate 152 days imprisonment. Concurrent.
as [JJNY]
Contravene community correction order Proven Sunshine Magistrates Court
03/11/2014
Criminal damage (intent damage/destroy) (2 charges)
Resist police
State false name when requested
Throw stone to injure/danger/damage prop
Fail to answer bail granted (3 charges)
Assault with weapon
Unlicensed driving
Use unregistered motor vehicle – highway
Fraudulently use reg label auth/req-rsa
Drive whilst disqualified
State false name or address
Convicted and a community correction order for 12 months Ex. Presc conc
3hrs-breath-drive vehicle
Convicted and a community correction order for 12 months. Disqualified from driving for 16 months. Goulburn Local Court
24/08/2011
Drive while disqualified from hold a licence H 45282527: imprisonment: 8 months commencing 19/08/2011 concluding 18/04/2012
non parole period with conditions: 5 months commencing 19/08/2011 release subject to supv disqualification: 2 years commencing 16/02/2017 concluding 15/02/2019 disqualification (habitual offender): quashed
Drive with middle range
Prescribed concentration of alcohol
H 45282527: imprisonment: 8 months: commencing 19/08/2011 concluding 18/04/2012
non parole period with conditions: 5 months commencing 19/08/2011 release subject to supv disqualification: 2 years and 6 months commencing 16/02/2012 concluding 15/08/2014 disqualification (habitual offender): quashed
Drive vehicle recklessly/furiously or speed/manner dangerous H 45282527: imprisonment: 8 months: commencing 19/08/2011 concluding 18/04/2012
non parole period with conditions: 5 months commencing 19/08/2011 release subject to supv disqualification: 2 years and 6 months commencing 16/08/2014 concluding 15/02/2017 disqualification (habitual offender): quashed
Sunshine Magistrates Court
16/08/2010
Possess cannabis With conviction, fined an aggregate of $600.00 Sunshine Magistrates Court
18/02/2010
Handle/receive/retention stolen goods
State false name when requested
With conviction, fined an aggregate of $850.00 with $66.60 statutory costs. Sunshine Magistrates Court
28/09/2009
Criminal damage (intent damage/destroy) unlawful assault With conviction, fined aggregate of $500.00 with $66.60 statutory costs. Melbourne Childrens Court
21/08/2009
Resist police (3 charges)
Assault police
Fail to answer bail granted (3 charges)
On each charge: the defendant is convicted and ordered to be detained in a youth justice centre for a period of 1 month. Moorabbin Childrens Court
05/08/2009
Armed robbery The defendant was convicted and ordered to be detained in a youth justice centre for a period of 6 months. Fail to answer bail granted The defendant was convicted and order to be detained in a youth justice centre for a period of 6 months, as [JJNY] Melbourne Magistrates Court
28/07/2009
Recklessly cause serious injury
Robbery
Aggregate 17 months imprisonment. Concurrent. Possess cannabis Without conviction, fined $100.00 Melbourne Magistrates Court
26/10/2007
State false name and address
Fail prod valid ticket-designated area
Without conviction. Adjourned to 24/04/2008
As the above Table highlights, the Applicant first appeared in the Melbourne Magistrates Court on 26 October 2007 charged with stating a false name and address and failing to produce a valid ticket. No conviction was recorded by the presiding Magistrate, and the Applicant’s next appearance was on 28 July 2009 when he charged with possessing cannabis. Again, no conviction was recorded, and the Applicant was fined $100.
Unfortunately the nature and frequency of the Applicant’s criminal activity increased rapidly in 2009. Also on 28 July 2009 he was convicted in the Melbourne Magistrates Court of recklessly causing serious injury and robbery and was sentenced to an aggregate 17 months imprisonment.
The following month the Applicant appeared firstly at the Moorabbin Childrens Court, was convicted of armed robbery and failing to answer bail and was ordered to be detained in a youth justice centre for 6 months.
On 21 August 2009 the Applicant appeared at the Melbourne Childrens Court and was convicted of three charges of resisting Police, assaulting police and failing to answer bail. On each charge the Applicant was ordered to be detained in a youth detention centre for one month.
Between 2009 and 2010 the Applicant appeared in the Sunshine Magistrates Court on three occasions and was convicted of drug possession, theft, assault, criminal damage and failing to answer bail charges. On each occasion the Applicant was fined by the presiding Magistrate.
Next, the Applicant appeared in the Goulburn Magistrates Court on two occasions in 2011 charged with alcohol and reckless/dangerous driving offences. The presiding Magistrate, inter alia, sentenced the Applicant to imprisonment for eight months with a non-parole period, with conditions, of five months.
On 3 November 2014 the Applicant appeared at the Sunshine Magistrates Court and was convicted of a number of offences including criminal damage, resisting Police, stating a false name, failing to answer bail, assault with a weapon and motor vehicle offences. The presiding Magistrate sentenced the Applicant to a community correction order for twelve months.
The Applicant appeared at the Melbourne Magistrates Court on 6 May 2016 and was convicted of numerous offences including stating a false name (four charges), motor vehicle offences, drunk in a public place, theft, resisting Police, property offences and firearms offences. The presiding Magistrate sentenced the Applicant to four community corrections orders for 18 months. For the offences of theft of a motor vehicle and unlicensed driving, the Applicant was sentenced to an aggregate 152 days imprisonment.
The Applicant’s offending culminated in his final appearance in the Sunshine Magistrates Court on 29 May 2017. He was sentenced to 9 months imprisonment on four separate series of charges, all of which sentences were to be served concurrently. The charges included property, traffic and drug offences, theft of a motor vehicle, assaulting police, fraud and reckless conduct endangering life.
Particulars of some of the more serious offences will is more fully dealt with below.
THE LAW
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which provides:
“(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 s 501); or
(ii) that there is another reason why the original decision should be revoked.”
The starting point when considering s 501CA(4) is whether an applicant has made representations in accordance with the invitation given – s 501CA(4)(a). It is not disputed in this matter that the Applicant has made the requisite representations – Exhibit 1 PG 13 p. 61 para 3.
It will be noted that the word “may” is used at the outset in s 501CA(4). The implications of the use of the word “may” were considered by the Full Federal Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151/267 FCR 320 where the following observation was made (at [21]):
“…there has been some discussion in the authorities whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view….”
Accordingly, there are two issues to be determined by the Tribunal:
(a)whether the Applicant passes the character test as defined by s 501 of the Act; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, then the cancellation of the Applicant’s visa must be revoked – Marzano v Minister for Immigration & Border Protection (Marzano) [2017] FCAFC 66 at [31] per Collier J.
Further, the “reason” in s 501CA(4)(b)(i) is not any reason but rather the determinative reason for revocation arrived at after a balancing exercise. Her Honour Collier J made the following observations in Marzano (at [32]):
“In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38] – [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds ‘any’ reason why the cancellation decision ‘could’ be revoked. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case…”
(emphasis in the original)
THE CHARACTER TEST
Section 501 of the Act empowers the Minister to both refuse to grant a visa and also to cancel a visa already granted to a person, if the Minister forms the opinion that the person does not pass the character test.
In turn, the character test is defined in s 501(6). Importantly, a person does not pass the character test if “the person has a substantial criminal record” – s 501(6)(a). A “substantial criminal record” is defined by s 501(7) and includes:
“(c) the person has been sentenced to a term of imprisonment of 12 months or more…”
As Tamberlin J observed in Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 (Djalic) at [68]/310:
“The authorities recognise that the protection of the Australian community lies at the heart of the discretionary power to cancel the visa of, or deport a non-citizen convicted of serious criminal offences.”
In the earlier Full Federal Court decision of Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 (Akpata) Lander J quoted with apparent approval part of Ministerial Direction 21. Lander J’s reasoning was agreed to by both Carr and Sundberg JJ. As Tamberlin J observed in Djalic ([71]/310) this suggested that their Honours “considered that the Direction accurately (or at least not inaccurately) summarises both the general object of the legislation and the principal purpose of the power to cancel a visa conferred by s 501.” Lander J observed in Akpata (at [104]):
“In Direction No 21 the Minister says:
‘The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising directions under section 501, for the protection of the Australian community….
2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter into or to remain in the community.”
After quoting the above extract from Direction No 21, Lander J then observed:
“[105] The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister’s discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
[106] Where an applicant has failed to pass the character test because the applicant has a substantial criminal record (as in this case), the seriousness of the offences; the circumstances of the offences for which convictions have been recorded; any mitigating facts or circumstances relating to the convictions; the degree of remorse or contrition of the applicant; the sentencing remarks of the sentencing court; the applicant’s history before and after the convictions; the applicant’s personal circumstances; the effect of an order under s 501 on the applicant’s dependents and his family; the prospect of the applicant’s rehabilitation; and the chances of the applicant committing further offences would usually be relevant factors to which the Minister would have regard.
[107] In short, any matter that would move the Minister to allow a person of proven bad character (as it is defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.”
THE HEARING
A Hearing was convened in Brisbane on 14 and 16 October 2020 and evidence and submissions were received remotely by means of Microsoft Teams.
The Applicant was represented by Ms Ramachandran and the Respondent by Mr Burgess.
The Applicant, who is currently in immigration detention in Western Australia, was present via Microsoft Teams throughout the two day Hearing.
Apart from the Applicant, the Tribunal received evidence on 14 October 2020 from Ms Ashoup Atar and the Applicant’s mother. On 16 October 2020 evidence was received from Ms Selba Luka and Dr Nina Zimmerman.
In order to maintain confidentiality for the Applicant, the Applicant’s name has been replaced with a pseudonym. In addition, acronyms have been used for those witnesses who are members of his family and children under the age of 18 have not been identified.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As discussed above, a person will not pass the character test if they have a “substantial criminal record” which is defined to include the circumstance where a person has been sentenced to a term of imprisonment of 12 months or more – s 501(7)(c).
It is not disputed that the Applicant was convicted in 2009 for recklessly causing serious injury and robbery for which he was sentenced to 17 months imprisonment. The Applicant concedes that he does not pass the character test by operation of s 501(6)(a) –ASFIC Exhibit 2, para 2.
The Tribunal is therefore satisfied that the Applicant has a substantial criminal record (s 501(6)(a)) as defined by s 501(7)(c) as he was sentenced to a term of imprisonment of more than 12 months and that he does not pass the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
Subsection 501CA(4) provides for the revocation of the initial decision to cancel a visa, if, inter alia, there is another reason why the original decision should be revoked – s 501CA(4)(b)(ii).
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal is required to comply with any Directions made by the Minister under s 499 – s 499(2A) - Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.
A failure by the Tribunal to comply with the Direction or make a decision based on an incorrect understanding of it, is an error going to the exercise of the Tribunal’s jurisdiction – Salahuddin v Minister for Immigration and Border Protection [2013] FCA 141 at [21] per Flick J and Minister for Home Affairs v Stowers [2020] FCA 407 (Stowers) at [21] per Yates J.
In this matter Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) applies.
The Direction makes clear that its central objective is the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens – cl. 6.2(1).
The Direction is intended to provide a framework within which decision-makers approach the task, inter alia, of deciding whether to cancel a non-citizen’s visa. The relevant factors that must be considered in making such a decision are identified in Part C – cl. 6.2(3).
Part C of the Direction 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.
Paragraph 6.3 of the Direction set out the Principles underpinning its operation.
Subparagraph 6.3(1) states that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. Remaining in Australia is a privilege conferred on non-citizens and is done so with the expectation that they will be law-abiding and not cause or threaten harm to either individuals or, more generally, the Australian community.
Subparagraph 6.3(2) observes that the Australian community expects the Australian Government to cancel the visa of a non-citizen who has committed serious crimes in Australia or elsewhere.
Also of relevance is cl. 6.3(5) which notes that Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have participated and contributed to the Australian community for only a short period of time. Conversely, a higher level of tolerance is given to a non-citizen who has lived in the Australian community for most of their life or from a very young age. In this matter, the Applicant came to Australia as an adult, and lived the majority of his life in Australia.
Attention must be given to cl. 6.3(6) which states that Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
Conversely, cl. 6.3(7), inter alia, draws to a decision-maker’s attention the consequences of the cancellation of a visa for minor children or other immediate family members of an applicant in Australia.
The Direction also provides specific guidance on how to exercise the discretion. Relevantly, cl. 7(1)(b) provides that a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further, cl. 8 provides guidance on taking the relevant considerations into account.
This paragraph provides that primary considerations should generally be given greater weight than the other considerations – cl. 8(4). Further, one or more primary considerations may outweigh other primary considerations – cl. 8(5).
Before turning to the primary and other considerations, it is important to consider the evaluative task required of a decision-maker. Reference can be made to the following observations of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
“The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Directions 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that other considerations be treated as secondary in all cases. Rather Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
This interpretation is consistent with the observations of the Full Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [34] – [35].
Subparagraph 13(2) sets out the three primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The other considerations are set out in cl. 14 of the Direction, namely:
(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.
I will consider each of the primary considerations and other considerations in turn.
PRIMARY CONSIDERATION A – the protection of the Australian community from criminal or other serious conduct
Introduction
Subparagraph 13.1 of the Direction provides the following general guidance to a decision-maker when considering the protection of the Australian community:
“(1) 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.
(2) Decision-makers 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.”
As will be noted, whilst cl. 13.1(1) outlines broad public policy considerations, cl. 13.1(2) focuses the attention of a decision-maker on two specific considerations. Each of these will be dealt with below.
First, a decision-maker must consider the nature and seriousness of a non-citizen’s conduct to date. Subparagraph 13.1.1 outlines the following factors that a decision-maker must have regard to:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children, are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to subparagraph (b), 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;
(g)whether the non-citizen provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen re-offended since being formally warned, or since being made otherwise aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status;
(i)where the non-citizen is in the Australia, a crime was committed in immigration detention, during an escape from immigration detention or after the non-citizen escaped from immigration detention.
Second, a decision-maker is required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Subparagraph 13.1.2(1) provides that when a decision-maker is evaluating the risk posed to the Australian community, regard must had to, cumulatively:
(a)the nature of 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.
Before turning to the first issue, namely the nature and seriousness of the Applicant’s conduct, it is necessary to deal with one of the contentions of the Applicant’s legal representatives.
It is was contended (ASFIC Exhibit 2 para 18) that although the Applicant has been convicted of serious offences his offending ought to be viewed as less serious given the Applicant’s severely diminished health situation.
The Applicant’s legal representatives invite the Tribunal to conclude that his offending was inextricably linked to his mental ill-health and substance abuse – ASFIC Exhibit 2 para 8.
The evidence before the Tribunal supports the proposition that at various times the Applicant was using illicit drugs and did suffer mental health issues, including multiple episodes of drug induced psychosis.
When the Applicant was sentenced at the Sunshine Magistrates Court on 29 May 2017 his legal representative, Ms Melanie Rudolfus, made the following submissions – Exhibit 1 G15 p. 92:
“…It was about 2010 that he started experimenting with methylamphetamine. Prior to that, Your Honour, a lot of the offending…was as a result of alcohol abuse.
Your Honour would note that Mr Turnbull refers to experiences of [JJNY] when he was in the refugee camps and in South Sudan, quite traumatic events that he had seen whilst in his own country and in the refugee camp. It’s something that the court is familiar with with people who come from this background, Your Honour, and the atrocities that they are subjected to and that they do see. A lot of people from the African continent, unfortunately, have these alcohol issues that, unfortunately, escalate.”
Ms Rudolfus referred to a report from Dr Leon Turnbull, Forensic Psychiatrist. Earlier in the proceedings Magistrate Myall made the following observations – Exhibit 1 G15 p. 91:
“There is also the psychiatric report which is contained on the file. That’s the seven-page report from Dr Leon Turnbull. I have read that. Anything further, Mr (sic) Rudolfus?”
It is clear that when sentencing the Applicant, Magistrate Myall considered the psychiatric report of Dr Turnbull. That report is before the Tribunal – Exhibit 5 pp. 77 – 83. Dr Turnbull made the following diagnosis – Exhibit 5 pp. 81 -82:
“From the information so far it is my opinion that this man has had multiple episodes of drug induced psychosis, the main culprit for that being the drug Ice. While he is at substantial risk of developing a stand-alone chronic psychotic illness, at the time of examination he is not yet at that point.
I note his criminal history, and that chronologically does preceded episodes of psychosis, such that while his probably being psychotic at least at the time of the fire offences, his other offending can only be partly explained by is periods of aberrant mental health…
As he does not have a chronic psychotic condition he does not have available formal mental impairment defence, though for the fire offence he was probably psychotic in the context of drug use, and his thinking and actions seem to have been grossly misjudged as some consequence of that. If he was indeed attempting suicide by incineration it is a poor and disorganized method that likely reflects his chaotic thinking at the time.
For the other allegations, while generally speaking he may have been drug affected and psychotic, I am less inclined to see psychosis as a motivator or significant factor.”
Dr Turnbull dealt in his report with the Applicant’s traumatic upbringing in Africa and his history of offending and drug taking.
In short, the context of the Applicant’s offending was duly considered by the Court and was reflected in the sentence handed down.
In this matter, the Tribunal has also taken into account, and given due weight to the circumstances of the Applicant’s offending. However, the Tribunal does not agree that it is appropriate to view the Applicant’s offences as “less serious” because of his alcohol, drug and mental health issues. Offences are objectively serious or not serious. The circumstances of the offender are relevant to the sentence imposed. The Tribunal is tolerably satisfied that at least with the sentencing on 29 May 2017, the Court had before it material as to the Applicant’s mental health and drug issues and sentenced him accordingly.
Finally, Dr Turnbull specifically opined that while the Applicant was probably psychotic at the time of the fire offences “his other offending can only partly be explained by his periods of aberrant mental health” – Exhibit 5 p. 81.
Nature and seriousness of the conduct
As outlined previously, the Applicant has a lengthy criminal history.
Attention will now be given to each of the considerations outlined in cl. 13.1.1.
Cl. 13.1.1.(1)(a) – violent or sexual crimes
Cl. 13.1.1.(a) states the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
There is no evidence before the Tribunal that the Applicant has ever been convicted of any sexual crimes.
The Applicant has a disturbing history of committing crimes of violence.
On 21 August 2009 the Applicant was convicted of resisting Police (three charges) and assaulting Police, all of which incidents occurred on 20 July 2007 in Melbourne. The Victoria Police Incident Summary Report provides the following account of what occurred – Exhibit 1 G p. 289:
“…AS POLICE ARRIVED LARGE NUMBERS OF SUDANESE MALES AND FEMALES BEGAN EXITING THE BUILDING. THE OFFENDER WAS HEAVILY INTOXICATED AND CAME AT POLICE THROWING HIS ARMS IN THE AIR AND TELLING US TO ‘FUCK OFF YOU REDNECKS’. AS POLICE WERE ARRESTING THE OFFENDER HE BEGAN STRUGGLING AND ASSAULTING POLICE. SUBDUED BY POLICE USING ASP BATONS…”
On 5 August 2009 the Applicant was also convicted of armed robbery which occurred on 26 March 2007 in the lift of a block of flats in Melbourne. The Victoria Police Incident Summary Report contains the following information – Exhibit 1 G p. 293:
“VICTIM STATED WAS TRAVELLING IN THE LIFT WITH TWO OTHER MALE PERSONS IN LIFT WHEN ONE MALE PERSON HAS ASKED VICTIM FOR A SMOKE. VICTIM REPLIED NO, TO WHICH THE MALE THEN STATED THAT BECAUSE HE WAS BLACK HE WAS NOT GETTING A CIGARETTE FROM THE VICTIM. WHEN THE VICTIM REACHED HIS FLOOR AND PROCEEDED TO GET OFF THE LIFT THE VICTIM SAID THAT ONE OF THE MALE OFFENDERS BLOCKED HIS WAY AND ASKED FOR ANOTHER CIGARETTE TO WHICH THE VICTIM STILL REPLIED NO. THE VICTIM WAS THEN ASKED IF HE WAS CHINESE KUNG FU TO WHICH THE VICTIM REPLIED YES. THE OFFENDER THEN PRODUCED A LARGE HUNTING KNIFE AND THRUSTED UP TOWARDS THE VICTIM’S THROAT. THE VICTIM THEN RAISED THEIR ARMS IN FRIGHT. OFFENDER THEN REACHED INTO VICTIM’S LEFT POCKET AND RETRIEVED A PACKET OF CIGARETTES AND AT THE SAME TIME NOTICED A WALLET IN THE SAME AND RETRIEVED THAT AS WELL AND TAKEN $200 DOLLARS CASH AND THROWN THE WALLET ON THE GROUND. THE VICTIM THEN STATED THAT THE OFFENDER THREATENED THAT IF THE VICTIM WENT TO POLICE THEY WOULD BE BACK AS THEY KNEW WHERE THE VICTIM LIVED. INITIALLY VICTIM WAS RELUCTANT TO REPORT MATTER TO POLICE AS THEY TOOK THE THREAT SERIOUSLY.”
It is not disputed that this offence occurred and when questioned by Ms Ramachandran, the Applicant testified as follows – Tr. 14.10.2020 p. 18:
“…And I want to take you to another incident…you were convicted on 5 August in 2009 and it was an armed robbery charge involving you being in the lift and asking for cigarettes, do you remember that incident?---I remember (indistinct) but with that too like I got charged but, yes, with that I’m very remorseful for that too, you know, and sorry for that, you know.”
However, when the Applicant was cross-examined by Mr Burgess while he ultimately agreed with the version of events outlined in the Police report, he initially seemed reluctant to accept responsibility – Tr. 14.10.2020 p. 54:
“MR BURGESS: Yes. JJNY, do you recall what you did to be convicted for armed robbery?---What I recall is having an argument outside of the lift, that’s it, you know, and whatever charge I have been charged, not like – he went and gave his story and I got charged based on his story, you know. So therefore the police believed him and I got charged for it (indistinct).”
The third crime of violence the Applicant was convicted of occurred on 24 February 2009. The Victoria Police Incident Summary Report contains the following information – Exhibit 1 G p. 292:
“AT APPROXIMATELY 12.07AM THE VICTIM CAUGHT A TRAIN FROM FOOTSCRAY STATION TO SUNSHINE, WHERE HE WAS FOLLOWED OFF THE TRAIN BY THE AFRICAN MALES. THE MALES WALKED BEHIND HIM UNTIL HE ENTERED THE WALKWAY TUNNEL AT THE STATION, THE MALES HAVE THEN EACH ASSAULTED THE VICTIM BY PUNCHING HIM BEFORE LEAVING ON FOOT. THE VICTIM THEN NOTICED HIS BACKPACK, CONTAINING HIS MOBILE PHONE, AND WALLET MISSING. THERE WAS NO CASH IN HIS WALLET. THE VICTIM DID NOT CONTACT POLICE AT THE TIME. STATING HE JUST WANTED TO SLEEP BECAUSE HIS HEAD WAS HURTING HE ATTENDED SUNSHINE POLICE STATION LATER IN THE DAY TO MAKE A REPORT.”
At the Hearing the Applicant agreed that he had assaulted the victim – Tr. 14.10.2020 p. 51:
“So when you told the Tribunal earlier that all you recalled was that there was a fight, that was incorrect wasn’t it?---What I meant to say is that all I did – yes, like I did is kick the victim. I did not take nothing from him, you know. All I did was kicked him and walked away, you know….”
The next violent incident occurred in August 2014 when Police were called to premises in Melbourne in relation to an assault between males at the premises. On arrival the Police Officers observed the Applicant walking away from the address in an intoxicated state. On being stopped the Applicant became argumentative with the Police Officers. The Police Report of the incident is as follows – Exhibit 1 G p. 200:
“The accused body language and behavioural issues have dramatically changed with the accused flaring his nostrils at police, positioning his body to stand over police and made repeated and extended glances at Senior Constable [G’s] firearm.
The accused was informed that he was going to be placed under arrest for drunk and fail to state name and address. The accused has refused to comply with police requests to turn around and place his hands behind his back so was forcibly arrested by Senior Constable [G]. Once cuffed the male sat back up and identification obtained. The accused has begun yelling and swearing directing all verbal trade towards Senior Constable [G]. The accused has then spat at Senior Constable [G] with saliva being mainly dodged but some landing on the lower trouser shin and shoe.”
Finally, and most seriously, on 29 May 2017 the Applicant was convicted of reckless conduct endangering life. The details of this offence were outlined in the Sunshine Magistrates Court by the Prosecutor – Exhibit 1 G15 p. 88:
“…on 14 December 2016 at 5.07 pm the accused attended a 7-Eleven service station in Taylors Road, St Albans. He entered the service station and immediately walked to the nearest petrol bowser, picked up the petrol nozzle with his left hand and grabbed a cigarette lighter out of his right jeans pocket. The accused has attempted to ignite the petrol fumes with his cigarette lighter. The accused was unsuccessful in this attempt and threw the nozzle back at the bowser.
The accused then walked to a second petrol bowser, picked up the nozzle and again attempted to ignite petrol fumes with his cigarette lighter. This incident was witnessed by a male who immediately feared the accused’s actions and knew if he did not act he and other persons present would almost certainly have been killed. The witness screamed at the accused to put the nozzle down but the accused just swore at him. The witness grabbed a nearby fire extinguisher and began spraying the accused who attempted to set fire to the petrol. The accused actively attempted to avoid the powder spray and then began to run back to the witness who sprayed the accused a second time.
The accused ran off towards Arthur Street in St Albans where he grabbed a rock and threw it in the direction of the witness but it struck a nearby vehicle. The entirety of this was captured on CCTV.”
The Applicant’s robbery offences can be categorised as opportunistic and predatory. The fact that the Applicant was carrying a large hunting knife and used it in a very menacing manner is of concern. A law-abiding citizen does not carry with them a weapon of this nature, nor does a law-abiding citizen use it in a manner to cause fear to facilitate a robbery.
In each of the incidents outlined above, the Applicant acted in an aggressive and threatening manner. It is very fortunate that the petrol station incident did not result in loss of life.
It will be noted that Direction No. 79 requires the Tribunal to view violent crimes “very seriously”. In Stowers Yates J made these observations:
“44 The Tribunal was obliged to follow Direction 79 when exercising its discretion to determine whether to revoke the cancellation decision…
45 That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words ‘very seriously’ were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light…”
The Applicant’s legal representatives contend – ASFIC Exhibit 2, paras 18 - 22) that this pattern of offending ought to be viewed less seriously given the context of offending including the Applicant’s severely diminished mental health at the time.
The question of the Applicant’s mental health is dealt with below, and the Tribunal has taken into account the Applicant’s mental state at the time of the petrol station incident. However, the evidence presented does not support the proposition that the Applicant’s long history of criminal offending, beginning when he was a juvenile, can be explained away in the manner suggested by the Applicant’s legal representatives. The Applicant, by his actions over a very lengthy period of time, has demonstrated that he is prone to random acts of violence, often in the company of others and when intoxicated.
The Tribunal views the Applicant’s crimes of violence very seriously. They cannot be viewed, as Yates J explained, in some lesser or different light.
Cl. 13.1.1(1)(b) – crimes of violence against women or children
The Tribunal has been presented with no evidence that the Applicant has been convicted of crimes of a violent nature against children, although the Applicant has exposed children to his drug induced outbursts of violence and on one occasion assaulted his then ten year old brother. A Victoria Police Report of 28 January 2009 contains the following information – Exhibit 1 G pp. 244 - 245:
“THE RESPONDENT IS THE 20 YEAR OLD SON OF THE AFM. ON 27/01/2009 AT APPROXIMATELY 10:30PM THE RESPONDENT ARRIVED AT THE FAMILY HOME IN AN INTOXICATED STATE. THE RESPONDENT ENTERED THE AFMS BEDROOM WHERE SHE WAS SITTING AND UPSET. THE RESPONDENT ASKED THE AFM WHY SHE WAS UPSET AND SHE TOLD THE RESPONDENT THAT SHE WAS SICK AND TIRED OF HIM GIVING HER A HARD TIME. THE RESPONDENT HAS BECOME ANGRY WITH THE AFMS RESPONSE AND PUSHED HER TO THE GROUND. THE AFMS TEN YEAR OLD SON HAS SEEN THIS, AND BECOME UPSET AND TOLD THE RESPONDENT TO STOP PUSHING THE AFM. THE RESPONDENT HAS THEN PICKED UP HIS TEN YEAR OLD BROTHER AND THROWN HIM TO THE GROUND…”
The Tribunal has no evidence that the Applicant has been convicted of any crimes of violence against women. However, there is evidence that the Applicant has threatened, and assaulted, his mother and has caused her to be in fear of harm to her or damage to her property.
During the 27 January 2009 incident outlined above, the Applicant also grabbed a kitchen knife and threatened to kill himself and then subsequently damaged his mother’s home – Exhibit 1 G p. 245:
“…THE RESPONDENT DROPPED THE KNIFE AND THEN BEGAN DAMAGING THE HOUSE. THE RESPONDENT HAS HEAD BUTTED THE WALL PUTTING A HOLE IN IT. THE RESPONDENT THEN WENT TO A REAR BEDROOM IN THE HOUSE AND SMASHED TWO MORE HOLES IN THE WALL THERE. THE TWO YOUNGEST CHILDREN…RAN OUT OF THE HOUSE AND WENT TO THERE AUNTYS HOUSE AROUND THE CORNER…”
A Victoria Police Incident Summary Report outlines incidents involving the Applicant’s mother and her home on 17 October 2016. The Report contains the following information – Exhibit 1 G p. 225:
“THE AFM AND RESP ARE MOTHER AND SON WHO WERE NOT LIVING TOGETHER AT THE TIME OF THE INCIDENT DUE TO THE RESP’S MENTAL ILLNESS. THE RESP SUFFERS FROM DRUG INDUCED SXHIZOPHRENIA WHICH HAS CAUSED HIS BEHAVIOUR TO ESCALATE AND THE AFM WOULD NOT ALLOW HIM TO LIVE WITH HER DUE TO FEAR FOR HERSELF, HER CHILDREN AND HER GRANDCHILDREN WHO ALSO RESIDE WITH HER. THE AFM TOLD POLICE THAT THE RESP HAS THREATENED HER WITH A KNIFE IN THE PAST; THE AFM WAS IN FEAR AND ASKED HER CHILDREN TO TAKE ALL THE KNIVES OUT OF THE HOUSE AND TAKE THEM TO THE AFM’S FRIEND’S HOUSE. THIS INCIDENT WAS NOT REPORTED TO POLICE.
ON MONDAY 17TH OF OCTOBER 2016, THE AFM WAS OVERSEAS IN NIGERIA WHEN THE RESP ATTENDED HER HOME ADDRESS WHILST HER CHILDREN AND GRANDCHILDREN WERE HOME. THE RESP HAS USED A GARDEN RAKE TO CAUSE EXTENSIVE DAMAGE TO THE AFM’S PROPERTY. THE RESP PUT HOLES IN THE PLASTER WALLS IN THE LOUNGE ROOM, LIVING ROOM, FRONT ENTRANCE, HALLWAY AND BEDROOMS. THE RESP HAS SMASHED THE DOWNSTAIRS LOUNGE ROOM WINDOW AND UPSTAIRS BEDROOM WINDOW. THE HAS USE THE RAKE TO RIP APART THE AFM’S COUCH, SMASH A MIRROR AND DAME A TV, COFFEE TABLE AND ENTRY TABLE. THIS INCIDENT WAS REPORTED TO POLICE HOWEVER AN INTERVENTION ORDER HAS NOT APPLIED FOR AS AFM NOT WILLING TO PROVIDE A STATEMENT.
THE RESP HAS SINCE ATTENDED A PETROL STATION AND ATTEMPTED TO SET THE BOWSER A LIGHT, A WITNESS STOPPED THE RESP BY SPRAYING THE RESP WITH A FIRE EXTINGUISHER.
DUE TO THE ESCALATING BEHAVIOUR OF THE RESP, THE AFM IS IN FEAR OF THE RESP AS HE IS LIKELY TO RETURN TO HER HOME AND HARM HER OR DAMAGE HER PROPERTY. POLICE HAVE CONCERNS FOR THE SAFETY AND WELFARE OF THE AFM.”
The Tribunal has been provided with multiple Police reports of the Applicant verbally abusing his mother and attacking members of his family over a number of years – Exhibit 1 G 2 pp. 225 – 246.
Cl. 13.1.1(1)(c) – crimes against vulnerable members of the community or government representatives or officials
There is no evidence before the Tribunal that the Applicant has ever been convicted of crimes against vulnerable members of the community.
The subparagraph also requires a decision-maker to consider crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties.
The Applicant has a history of resisting authority, including attempting to assault, actually assaulting and verbally abusing law enforcement officers. The relevant offences the Applicant was charged with are set out below:
Court
Date
Offences
Melbourne Childrens Court
21.8.2009
Resist Police (3 charges), Assault Police
Sunshine Magistrates Court
3.11.2014
Resist Police
Melbourne Magistrates Court
6.5.2016
Assault Police, Resist Police
Sunshine Magistrates Court
29.5.2017
Assault Police, Resist Police
The Tribunal has been presented with various Police Reports of incidents that are said to involve the Applicant resisting and assaulting Police. No evidence was presented that would cast any credible doubt on the accuracy of these reports.
As previously noted, on 13 April 2007 there are Victoria Police Incident Reports of the Applicant verbally abusing Police Officers and assaulting them when being arrested. Police needed to use batons to subdue the Applicant – Exhibit 1 G pp. 289, 299.
On 13 August 2011 the Applicant is recorded as having been abusive towards Police when he was intoxicated – Exhibit 1 G p. 239.
Also, as previously noted, on 6 August 2014 the Applicant, when being arrested spat at a Police Officer – Exhibit 1 G pp. 200, 276. The Applicant failed to attend the Sunshine Magistrates Court on 8 May 2015 in relation to charges stemming from this incident and a Bench warrant was issued – Exhibit 1 G pp. 208 – 209.
On 7 October 2014 two Police Officers (W and Y) intercepted the Applicant whilst he was driving. The following is the Police account of what then occurred – Exhibit 1 G p. 210:
“5. The accused became agitated and aggressive, clenching his fists and then starring into space.
6. The accused was asked several times to provide his details, however he refused to answer questions relating to his identity…
7. The accused was requested to exit the vehicle. The accused became further more agitated and removed a foil from the centre console. Having provided Police with a false name and appearing to destroy evidence, Police witness [W] advised the accused he was under arrest. Police witness [W] and [Y] took hold of the accused’s arms.
8. The accused pushed Police witness [W] and [Y] back from the vehicle causing them to be in the path of oncoming traffic. Police witness [W] and [Y] again took hold of the accused pulling him from the drivers seat.
9. The accused was agitated and aggressive. The accused was directed to stop resisting but continued to do so. Police witness [W] deployed his OC spray with had limited affect. The accused continued to resist and appeared to be attempting to walk out into oncoming traffic.
10. The accused was eventually over powered and removed from the road….”
The Applicant, it would appear, has a propensity to disrespect authority and, when stopped by Police, to respond in an aggressive manner. The fact that Police have had to use force on more than one occasion to prevent the Applicant harming both himself and the arresting Police Officers, is a matter of concern.
The Applicant’s history of resisting and assaulting Police Officers performing their lawful duty is a serious matter and weighs against the Applicant.
Cl. 13.1.1(1)(d) – sentence imposed
This subparagraph draws a decision-maker’s attention to the sentence or sentences imposed.
The bulk of the Applicant’s offending occurred in Victoria, but he was also sentenced to a term of imprisonment in New South Wales. Under the Sentencing Act 1991 (Vic) and Crimes (Sentencing Procedure) Act 1999 (NSW) comprehensive guidelines are prescribed when offenders are convicted and sentenced. In particular s 5(4B) of the Victorian Act and s 5(1) of the New South Wales Act provide, in effect, that imprisonment (confinement) should only be imposed as a last resort.
The Respondent contends (Respondent’s Statement of Facts, Issues and Contentions (RSFIC) – Exhibit 3 para 35) that the objective seriousness of the offending is that the Courts considered it necessary to impose terms of imprisonment. It was also contended that that terms of imprisonment are the last resort in the sentencing hierarchy and in this case the Applicant was sentenced to a maximum term of 18 months imprisonment.
The Tribunal agrees with the Respondent that in the circumstances the fact that Courts imposed terms of imprisonment is a reflection of the objective seriousness of the offences committed by the Applicant.
The Applicant’s criminal history is diverse and lengthy. The offences he has been convicted for include traffic, property, assault and drug offences. The offences are not at the lower end of the serious scale, but include a number of very serious charges.
The Applicant has shown a wanton disregard for the safety of others and has repeatedly broken the law. The imposition of custodial sentences appears to have had minimal deterrent effect on him.
Unfortunately the transcript of the Applicant’s sentencing by Magistrate Myall on 29 May 2017 (Exhibit 1 G15 pp. 80 – 99) is not particularly helpful as his Honour did not provide much guidance as to how he viewed the Applicant’s offending.
However, despite this the Australian Federal Police Criminal Records Report (Exhibit 1 G14 pp. 74 - 79) discloses that the Applicant has been sentenced on numerous occasions since 2009 to terms of youth detention and imprisonment. Custodial sentences were imposed on 28 July, 5 August and 21 August 2009, 24 August 2011, 6 May 2016 and 29 May 2017.
The fact that various Courts over a very long period of time have sentenced the Applicant to terms of detention and imprisonment, weighs against him.
Cl. 13.1.1(1)(e) – frequency of offending
This subparagraph focuses on the frequency of offending and whether there is any trend of increased seriousness.
Dealing with the frequency of offending, it is the case that the Applicant has a long history of offending commencing when he was a juvenile and involving a diverse range of crimes.
A close perusal of the National Police Certificate, which comprehensively lists the Applicant’s criminal history, does not disclose a trend of increased seriousness. Unfortunately from a relatively early age the Applicant has engaged in serious crimes including armed robbery, driving while intoxicated and in a reckless and dangerous manner, resisting Police, receiving stolen goods and possessing illegal drugs. It is the case that the most serious offences committed by the Applicant were those dealt with on 29 May 2017. However, the Applicant’s offending has shown a consistent pattern over the past decade.
The Applicant’s criminal history discloses that he was, from an early age, an offender who committed crimes of violence, property and traffic offences of a type which manifested an alarming disregard for the safety of the Australian community.
The frequency of the Applicant’s offending weighs against him.
Cl. 13.1.1(f) – cumulative effect of repeat offending
The Applicant has a history of repeat offending.
As the Respondent contends (RSFIC Exhibit 3 para 36), the Applicant has been sentenced in relation to 68 offences, the majority being property and dishonestly-related.
The Respondent also drew the Tribunal’s attention to the following serious traffic offences – RSFIC Exhibit 3 para 36 a – d:
(a)On 24 April 2011 the Applicant was driving an unregistered vehicle with six passengers, but with only five seatbelts, whilst he was disqualified. The Applicant provided false details to the intercepting Police Officers – Exhibit 1 G p. 199;
(b)On 19 August 2011 the Applicant whilst intoxicated and disqualified drove a motor vehicle with four male passengers at 200 km/h. The Applicant was charged with driving in a manner dangerous to the public, mid-range prescribed concentration of alcohol, driving whilst disqualified and exceeding the speed limit by more than 45 km/h;
(c)On 25 February 2015 the Applicant drove an unregistered motor vehicle whilst not holding a driver’s licence and when intercepted by Police gave a false name. The Applicant was found to be in the possession of 1 gram of Methylamphetamine – Exhibit 1 G p. 204;
(d)The next day the Applicant was again intercepted by Police and again gave a false name – Exhibit 1 G p. 201; and
(e)On 16 July 2015 when intercepted by Police sleeping in a motor vehicle with stolen plates, the Applicant again gave a false name. Police search revealed a 20mm sharpened file in the Applicant’s left shoe as well as illegal drugs – Exhibit 1 G p. 198.
At the beginning of the Applicant’s criminal history, the various Magistrates whom he appeared before handed down lenient sentences. When the Applicant appeared before the Melbourne Magistrates Court on 26 October 2007 on false name and address and failure to produce a valid ticket charges, the presiding Magistrate did not record a conviction. Similarly on 28 July 2009 in the Melbourne Magistrates Court, the presiding Magistrate did not record a conviction and fined the Applicant $100 on a charge of possessing cannabis – Exhibit 1 G p. 79.
Despite the Magistrates in both instances giving sentences aimed at giving the Applicant an opportunity to moderate his behaviour and not be burdened by a criminal history, his response was to escalate his offending into much more serious crimes. By 2009 JJNY was convicted of robbery, armed robbery, resisting Police, failing to answer bail, unlawful assault and criminal damage charges.
An ongoing issue is the Applicant’s demonstrated and repeated failure to respect the authority of the Police. JJNY has shown a consistent pattern of resisting Police, providing them with false information and attempting or actually assaulting Police Officers.
When viewed cumulatively, the Applicant’s lengthy criminal record discloses a manifest disregard for the safety and property of the Australian community and, in particular, for those in authority who are tasked with protecting the community. The Applicant’s final convictions on 29 May 2017, were just the culmination of this unfortunate pattern of behaviour.
Cl. 13.1.1(1)(g) - provision of false or misleading information
This subparagraph focuses on the provision of false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant visited South Sudan in 2012/2013 and on his return to Australia completed the mandatory Incoming Passenger Card which is dated 5 February 2013. In response to the Question whether he had any criminal convictions, the Applicant falsely answered in the negative – Exhibit 1 G p. 143.
The Tribunal agrees with the Respondent’s submission (RSFIC Exhibit 3 para 38) that the Applicant provided misleading information to the Department.
The Applicant’s false and misleading completion of the Incoming Passenger Card is, unfortunately, part of an overall pattern of false and misleading information he has provided to Police.
What is particularly concerning is that in a letter sent by the Department to the Applicant on 1 March 2011, or shortly under two years before he falsely completed his Incoming Passenger Card, he was specifically warned of the consequences of falsely completing an Incoming Passenger Card – Exhibit 1 PG25 p. 151:
“Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:
·refusal of entry to Australia;
·refusal of citizenship;
·cancellation of your visa;
·removal from Australia; and
·criminal prosecution.”
The provision of false and misleading information in the Incoming Passenger Card after he was specifically warned of the consequences of such action, weighs against the Applicant.
Cl 13.1.1(1)(h) – reoffending after provision of warning
This subparagraph focuses on whether the non-citizen has reoffended since being formally warned, or otherwise being made aware, in writing, about the consequences of further offending.
The Applicant was formally warned on two occasions (1 March 2011 and 10 May 2012) that his visa may be cancelled if he committed further offences or otherwise breached the character test in the future. Further, the Applicant was informed that disregard of the warning would weigh heavily against him if his case was reconsidered – Exhibit 1 PG24 pp. 145 – 149 and PG25 pp. 151 – 152.
The Respondent points out (RSFIC Exhibit 3 para 39) that the Applicant committed 51 offences after being first warned in March 2011.
When giving evidence, the Applicant said that he could not recall receiving the letters, and Ms Ramachandran pointed out that there is no signed acknowledgment of the letters admitted into evidence – Tr. 16.10.2020 p. 145.
It needs to be pointed out that the first of the letters was not sent to the Applicant but to his authorised recipient, namely Ms Neha Chhatbar of the Refugee and Immigration Legal Centre Inc.– Exhibit 1 G25 p. 150. It would be highly unusual that the legal representative of the Applicant would not have brought such an important letter to his attention. No evidence has been led to support the proposition that either Ms Chhatbar or any other employee of the Refugee and Immigration Legal Centre Inc. did not bring the letter to the attention of the Applicant.
The Tribunal proceeds on the assumption, then, that the Applicant did receive the warning letters.
It is troubling that the Applicant was specifically warned on two occasions of the consequences that may flow if he continued to break the law, yet he continued to do so, and his most serious crimes were committed after he was warned. It is tolerably clear that the warnings had no effect on the Applicant and he appears not to have been concerned about the consequences of his reoffending.
Whatever his personal circumstances, the undisputed evidence before the Tribunal suggests that the Applicant wantonly ignored the written warnings he received and this also weighs against him.
Cl 13.1.1(1)(i) – crimes committed while in immigration detention or escaping from detention
No evidence has been presented to the Tribunal that the Applicant has committed any crimes whilst in immigration detention.
Conclusion
In summary, the following conclusions can be drawn from the evidence before the Tribunal:
(a)the Applicant’s offending includes the infliction of physical harm, or the threat of inflicting physical harm, on other persons. Sometimes this involved the Applicant acting in concert with other offenders. As previously noted, some of these crimes can be categorised as opportunistic and predatory;
(b)there is a troubling history of the Applicant resisting and assaulting Police Officers in the performance of their duties. In the case of the 7 October 2014 incident (Exhibit 1 G p. 210), the Applicant’s actions in pushing the two Police Officers in the path of oncoming traffic could have resulted in those Officers being seriously injured or killed;
(c)a source of concern has been the pattern of providing false and misleading information to the authorities, either with respect to his identity, or, in the case of his Incoming Passenger Card, his criminal history;
(d)the Applicant has been sentenced to terms of imprisonment, and while a juvenile, to detention in a youth justice centre. The terms of imprisonment have not been insubstantial;
(e)the Applicant’s criminal history is concerning because of the frequency of the offences. Since 2007 the Applicant has been sentenced for 68 offences;
(f)the cumulative effect of the Applicant’s offending over more than a decade demonstrates a disregard for the law with an attendant burden on Australia’s judicial and custodial system;
(g)despite receiving two written warnings from the Department in 2011 and 2012 of the consequences of future offending, the Applicant continued to offend and some of his most serious offences were committed after he received those warnings.
The Tribunal concludes that the Applicant’s conduct in Victoria and New South Wales demonstrates a disregard for the law and the nature, frequency and seriousness of the offences weigh heavily against the Applicant.
Risk to the Australian community
As previously explained, a decision-maker is required when considering the risk to the Australian community to 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 re-offending.
(a) The nature of the harm
The first task of the Tribunal is to ascertain the nature of the harm should the Applicant reoffend.
When assessing the nature of the harm the Tribunal is required to consider the implications of the Applicant reoffending in a similar way. In short, what would be the nature of the harm if he were again to play a similar role in any future criminal enterprise.
The legal representatives of the Respondent made the following submissions – RSFIC Exhibit 3 para 41:
“The Minister contends that the applicant is serious repeat offender with an extensive criminal history spanning over 10 years. Given the broad range of the applicant’s offences, the nature of the harm to victims if the applicant were to reoffend is serious, and could involve significant physical, financial and psychological harm to members of the Australian community and their property including road users and pedestrians.”
The Tribunal agrees with this submission. The Applicant has a very lengthy history of committing assaults, driving at excessive speed whilst disqualified and whilst intoxicated, stealing and receiving stolen property, resisting arrest and engaging in life threatening and reckless behaviour. Having carefully considered the evidence, it is clear that only by good luck has the Applicant until this point of time not killed himself or other members of the community. His actions in trying to ignite a petrol station, driving at speeds of around 200 km/h whilst disqualified from driving and in an unregistered vehicle and pushing Police Officers into the path of oncoming traffic are alarming and concerning.
Clearly, if the Applicant were released into the community and re-commenced criminal activity, there would be a risk that he could injure, or perhaps worse, himself or other members of the community. Further, his past behaviour would suggest that the nature of the harm would include drug and property offences. The Applicant poses a particular risk to members of the Police Force. The Applicant is a very tall (six feet eight inches – Exhibit 5 p. 23 para 7) and strong man, and if he were again under the influence of alcohol and drugs and determined to resist arrest, then he would pose a clear and present danger to those Police Officers attempting to enforce the law.
In short, the Applicant poses a serious risk to the Australian community should he commit further offences or engage in serious conduct. This weighs against the Applicant.
(b) The likelihood of engaging in further criminal or other serious conduct
In reaching these findings, the Tribunal has had regard to cl. 14.1(2) of the Direction, which specifically states that:
“Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to a country in respect of which a non-refoulment obligation exists.”
As Kerr J held in BDQ19 v Minister for Home Affairs [2019] FCA 1630 at [64], there is nothing in the text of the Direction that would suggest that those commitments will not be honoured.
It is also the case that the Applicant can apply for a protection visa, and in this instance this course of action is not prevented by the operation of ss 48A or 501E.
The Respondent drew the Tribunal’s attention to the Full Federal Court decision of AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451/[2016] FCAFC 105. Their Honours Allsop CJ, Robertson and Griffiths JJ made the following observations 473/[69] – [70]:
“69 Senior Counsel for the Minister acknowledged that it remains open to the appellant to apply for a protection visa while he is in the migration zone…The assessment of any such application will require the Minister to conduct an up to date assessment as to whether Australia owes the appellant protection obligation under the Migration Act, which will require an updated assessment to be conducted concerning current conditions in South Sudan.
70 The further significance of the fact that it remains open for the appellant to apply for a protection visa is that the legal and factual consequences of the cancellation of the appellant’s visa do not necessarily include removal from Australia or indefinite detention.”
As their Honours explain, if the Applicant choses to apply for a protection visa, there will necessarily be an updated assessment concerning current conditions in South Sudan as well as any changes to his personal considerations. In short, the matter will be reventilated and the decision-maker will necessarily make a new decision based on the new information presented as well as applying the relevant statutory provisions. Such decision-maker is not bound by the findings and conclusions made and reached by this Tribunal.
At the Hearing Ms Ramachandran made the following submissions – Tr. 16.10.2020 p. 147:
“…the Minister contends that he could apply for a protection visa but for practical purposes that he would be unlikely – there could not be, not unlikely, there could not be any likelihood that he would be granted a visa as an unfavourable decision by this tribunal carries with it a finding that the is an unacceptable risk to the community and therefore must not be allowed to hold a visa notwithstanding that he is a person who engages non-refoulement conditions. This is irreconcilable with a finding that there is a real possibility he would be granted a protection visa as section 502 criteria apply for the grant of that protection visa.”
With due respect to Ms Ramachandran, if the Applicant did in fact apply for a protection visa the person making the relevant decision would be acting independently and without any constraints imposed by the findings this Tribunal makes. The relevant decision-maker would, by law, be required to turn his or her mind to the evidentiary matrix before them and to the statutory provisions that needed to be addressed. To suggest that a decision-maker would somehow be constrained to apply the relevant law to the evidence presented, is, with respect, not correct.
Viewed from this prism, therefore, the Tribunal finds that there will be no breach of Australia’s international law obligations.
Conclusion
Based on the evidence presented, the Tribunal finds that whilst the Applicant is owed non-refoulement obligations, the material before the Tribunal does not meet the standard required for such obligations to be triggered.
Having regard to this finding, the Tribunal assigns to this Consideration neutral weight.
Strength, nature and duration of ties
Subparagraph 14.2(1) of the Direction provides that 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 the time the non-citizen has spent contributing positively to the Australian community.
(a) 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).”
As previously noted, the Applicant was born in Sudan in June 1989 and arrived in Australia with his mother and siblings in July 2002. In short, the Applicant was 13 years of age when he arrived in Australia and has lived here continuously since that time, with the exception of a three months visit to South Sudan between 2012 and 2013.
The criminal history record of the Applicant outlined above indicates that he first appeared before a Court in October 2007, which was approximately five years after he arrived in Australia. The Tribunal is not aware of any other Court appearances prior to that time. Accordingly, the evidence does not suggest that the Applicant began offending soon after arriving in Australia.
There is no evidence that the Applicant has contributed positively to the Australian community other than those times he was in employment and some engagement in sporting activities. Unfortunately, for most of his adult life, the Applicant has been abusing alcohol and drugs and he has an extensive criminal history.
In his Personal Circumstances Form dated 22 December 2017, the Applicant reported that he worked from 2006 – 2007 as a factory worker in Gippsland and in 2007 as a forklift driver – Exhibit 1 PG20 p. 121.
In response to the Question asking what positive contributions he had made to the Australian community, the following response was given – Exhibit 1 PG20 p. 121:
“Unknown. [JJNY] has played basketball competitively up until 2017”
The Applicant’s mother and four of his five siblings reside in Australia. The Applicant’s youngest brother resides in the United States of America and his father, to the best of his knowledge, lives in South Sudan – Exhibit 1 PG20 p. 119.
Further, the Applicant has two paternal uncles who reside in Australia and his nephews who live with his mother (their grandmother) – Exhibit 1 PG20 p. 119.
Ms Ramachandran made the following submissions – Tr 16.10.2020 pp. 147 – 148:
“JJNY has lived in Australia through his adolescence and adulthood. He does not practically have a connection to any other country. His mother, all of his siblings and nephews, reside in Australia, they are all Australian citizens. He has studied and worked in this country. He has no close ties or connections in Sudan apart from an estranged father. In Australia the Sudanese Australian community is ready to embrace him if he were to be released back into the community, so that he could stay his current course.”
It was clear when MAM gave evidence that she is devoted to JJNY. The removal of JJNY from Australia will be a grievous blow to his mother. In her statement of 5 October 2020 MAM outlined her feelings for the Applicant – Exhibit 5 pp. 9 – 10:
“44. It would be very hard for me if [JJNY] was removed from Australia. I am responsible for him and it would make me sick thinking that he had no one who would be able to help him in South Sudan. I would worry every day that he is going to be killed on the streets. [JJNY] is a very good person with a good hear who does not hold grudges. Out of all my children [JJNY] was the one whom I expected would help me as I go older. I still have hope that he will be able to help me. I need [JJNY] to help me with his sisters, who also love him very much. They are also facing problems including alcohol abuse and I cannot handle this by myself. [JJNY] tells his sisters not to follow his example and make the mistakes that he did. He tells [his sister] that he does not want her own children to grow up to be like him. All of [JJNY’s] siblings love him…
45. [JJNY] also loves his nephews and they are very close. He used to sit and talk with them, even when he did not talk to any other people. He talks to them on the phone when I call him…Their father is not involved in their lives and these boys need the love of a father or uncle. [JJNY] can do a lot of things for them, he loves and is very good with kids. I am the children’s main provider and sometimes it makes me very tired but I cannot get help. I have been struggling as a single mother for almost all of my children’s lives and now look after my grandsons. If [JJNY] were out in the community, he would be able to help me by taking them to school or playing with them. He could help me raise these children and knows how to discipline them…”
MAM re-iterated her desire that the Applicant remain in Australia and her reliance on him to help her raise her grandchildren – Tr. 14.10.2020 p. 85.
The evidence presented is that the Applicant retains very strong ties with his family in Australia and that his removal to South Sudan would cause his mother and siblings considerable hurt. MAM, in particular, would be badly impacted, and the Tribunal also accepts that the Applicant has played a positive role in the lives of his two nephews. The absence of the Applicant from these young children in their formative years, especially as they do not have the benefit of a mother and father to love and guide them, would negatively impact their upbringing.
The evidence also discloses that whilst the Applicant has relatives in South Sudan, including his father, he has had little or no contact with such relatives in all of the years he has resided in Australia. In short, all of the Applicant’s friends and most of his immediate family reside in Australia. In contradistinction, the evidence does not disclose that the Applicant has any social links with persons in South Sudan, whether family or friends.
If the Applicant is removed from Australia, it is likely that under the current legislative regime, he will be permanently barred from returning. In short, he will be permanently separated from his mother, siblings and nephews. This would, no doubt, cause the Applicant considerable anguish.
Conversely, the Tribunal has also taken into account that the Applicant’s positive contribution to the Australian community is minimal.
Overall, then, the Tribunal finds that this Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but only moderate weight can be placed on it.
Impact on Australian business interests
No submissions were made on this consideration. There is no evidence, for example, that the Applicant has been involved in the delivery of a major project or delivery of an important service in Australia. The evidence discloses that the Applicant has worked for relatively short periods of time but otherwise has not engaged in any business enterprises.
In the circumstances, the Tribunal places neutral weight on this consideration.
Impact on victims
The Respondent did not adduce any evidence about the impact of a decision not to revoke on victims of the Applicant’s criminal behaviour or their family members.
In the absence of any evidence, the Tribunal places neutral weight on this Consideration.
Extent of impediments if removed
Subparagraph 14.5(1) of the Direction provides that a decision-maker must take into account the extent of any impediments that the Applicant may face if removed from Australia to South Sudan, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of South Sudan) taking into account:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in South Sudan.
The Applicant’s legal representatives made the following submissions - ASFIC Exhibit 2:
“55. The applicant will face significant impediments if forcibly returned to South Sudan. It is contended that the consequences to this particular applicant, in all of his circumstance, upon forced return are grave.
56. We refer to Annexure A to these SFICs for detailed information regarding the present country situation in South Sudan, and how it will impact the applicant.
57. Given the applicant’s particular vulnerabilities, mental and physical health, his lack of connections with South Sudan, his past trauma, his past struggles with addiction, and his extremely limited ability to speak Dinka it is clear that the applicant would not survive in South Sudan.
58. This consideration ought to be given determinative weight, this is because Australia does not return a person to another country to their death.”
The Respondent, in contradistinction, made these submissions – RSFIC Exhibit 3:
“73. Paragraph 14.5 of Direction 79 requires consideration of the extent of any impediments that the applicant may face if removed from Australia to his home country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: the applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in that country.
74. The applicant states that he has no ‘family network’ in South Sudan and no relatives or family. However, it was submitted on behalf of the applicant at the sentencing on 29 May 2017 that his father was still in South Sudan, his contact with him was quite limited and was generally phone contact.
75. The Minister acknowledges that the applicant may face some difficulty in re-establishing himself in South Sudan due to his long residence in Australia, but this factor would only present as a short-term hardship and is not insurmountable. The applicant did also return to South Sudan in 2013 and so it is not the case that he has been absent for a lengthy period.
76. Although there are some sporadic references in the evidence before the Tribunal to the applicant having poor mental health and the applicant recently stating that he is taking the anti-psychotic drug olanzapine, there is no evidence before the Tribunal providing any confirmed diagnosis. Nor is there any evidence of any treatment the applicant requires for such a condition.
77. The Minister acknowledges that are generally poor and that physical and mental health treatment facilities and social welfare support systems are very limited. However, paragraph 14.5(1) of Direction 79 provides that the extent of any impediments to an applicant establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. Thus, while the Minister acknowledges the limited health facilities in South Sudan, there is no evidence that the applicant would be denied access to them insofar as they are available to other citizens of the country.
78. The Minister contends that there are no substantial language or cultural barriers for the applicant to overcome, given that the applicant lived in South Sudan for the first 13-odd years of his life.
79. Although the Tribunal may find that this consideration does weigh in the applicant’s favour, it does not outweigh the other primary considerations weighing heavily in favour of non-revocation.”
(footnotes omitted)
In assessing the extent of any impediments a non-citizen may face returning to their home country, cl 14.5(1) requires the Tribunal to take into account three factors.
The first factor is the non-citizen’s age and health. As previously pointed out, the Applicant was born in June 1989 and, as such, he is now 31 years old. The evidence presented is that he is a fit and strong younger man who played competitive basketball and is able to engage in physical endeavours. He is a tall and imposing male and his background suggests that he is athletic.
The Tribunal accepts that the Applicant has mental health issues, but there is scant evidence that he suffers from any other chronic medical conditions.
Much has been made by the legal representatives of the Applicant about the substantial language and cultural barriers the Applicant would face in South Sudan. It was contended that the Applicant would be considered by many South Sudanese as a foreigner due to the fact he left South Sudan as a child and have lived much of his life in Australia.
The Tribunal has some difficulties with these submissions.
In his statement of 7 September 2020 (Exhibit 6), the Applicant explained:
“13. I do not remember if I went to school in Sudan and I do not think that we were in Kenya long enough for me to go to school there. I spoke no English when we arrived in Australia – none of my family did. We went to language school to help us learn English and then I started high school…”
For the first 13 years of his life the Applicant knew no English, and his primary language was Dinka. All of his family, including his mother, could not speak the English language. Yet the Tribunal is informed know that the Applicant’s command of the Dinka is “extremely limited”.
The Applicant also in his statement of 7 September 2020 spoke of his involvement with the Anglican Church at Footscray – Exhibit 6 para 13:
“…My family is Catholic but when we came to Australia we started attending an Anglican church in Footscray that all the Sudanese in the western suburbs of Melbourne attended. I was an altar boy at church every Sunday and on Saturdays the church had a school that my siblings and I attended to help us with homework and to further improve our English.”
The evidence then is that the Applicant and his family had no English language skills on arrival in Australia and attended an Anglican church which catered for the Sudanese population. Presumably the church services would have been in the Dinka language, and in any event the parishioners would have been speak to each other in their native language. The fact that the church provided each Saturday a school to help with homework and English language also suggests that the Applicant continued to need assistance to master the English language.
The evidence also illustrates that the Applicant and his family returned to South Sudan for three months in 2012 – 2013 when he was 23 for his sister’s wedding. There is no evidence before the Tribunal that during this time the Applicant had any difficulty in engaging with the local population, even if it was mostly limited to wedding related functions.
The Tribunal therefore finds it implausible that the Applicant would experience any significant language problems in South Sudan, particularly in Juba where there is a sizeable Dinka population and where the official language of South Sudan is English. Indeed, insofar as the Applicant has developed reasonably good English language skills, he would be, presumably, in a superior competitive position to obtain positions where the use of the English language is either necessary or preferred.
The Tribunal accepts that the Applicant would face initial cultural issues insofar as he has spent all of his adult life in Australia. I further accept that the Applicant would likely face initial difficulties in re-establishing himself in South Sudan. As a stranger to that country and without the assistance of family members, this would present the Applicant with a range of problems. The Tribunal in no way wishes to minimise those problems or the attendant stress this would cause the Applicant. Unfortunately, these are almost inevitably the consequence of forced removal from Australia back to a non-citizen’s home country.
However, whilst the Applicant would in all likelihood face re-establishment issues, he could reasonably be expected to overcome that hardship in the medium to longer term. As a young and fit man with the benefit of education in Australia, the initial cultural issues he would face should not preclude his successful re-settlement in South Sudan.
Next, the Tribunal also accepts that there is no evidence that the Applicant would receive any social or economic support from relatives or friends in South Sudan. The lack of social support would be, in the short term at least, a significant impediment to his rapid re-integration into South Sudanese society.
Of even more concern is the relative dearth of medical infrastructure in South Sudan. The minimal mental health services in South Sudan has already been commented on. Clearly, based on the evidence presented, mental health services are limited to Juba, and even in that city those services are relatively scant. The poor state of health care in South Sudan was dealt with in the DFAT Country Report as follows (para 2.17):
“South Sudan’s population has extremely poor access to health care. Accurate data prepared by the Government on health indicators is often non-existent or outdated. According to data collected prior to the outbreak of conflict in December 2013, South Sudan ranked 169th out of a total of 187 countries on the UN Development Programme’s 2015 Human Development Index.”
Nonetheless in correctly assessing the impediments faced by a non-citizen establishing themselves and maintaining basic living standards in their home country, the Tribunal is required to make that assessment through the prism of what is generally available to other citizens of that country. In short, a contextual analysis is required; and the context is that pertaining in South Sudan as distinct from what pertains in Australia.
Looked at from that perspective, the Applicant would in all likelihood be entitled to, and receive, the same access to health facilities in the same manner and to same extent as they are available to other people resident in South Sudan. Indeed, as the Applicant would likely reside in Juba, where there is at least some health care infrastructure in place, he most probably be in a better position than most other South Sudanese residents.
In conclusion, the Tribunal finds that the Applicant would face significant impediments in establishing himself in South Sudan in the short term. The relative dearth of good health care, lack of social support groups or family members, cultural issues as well as a high crime rate, all would mean that the Applicant would be placed in an alien environment which would present a range of problems for him.
However, the Applicant is a young man who, apart from his mental health issues, appears generally to be in good health. His command of the English language would be an advantage in a country such as South Sudan where the official language and language of Government is English. Compared with fellow residents of South Sudan, the Applicant would, in some respects, be in a position of comparative advantage.
Overall, then, the Tribunal finds that this Consideration weighs in the Applicant’s favour and the Tribunal ascribes to it moderate weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation decision.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations prescribed in the Direction.
The Tribunal makes the following findings:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B weighs moderately in favour of revocation;
(c)Primary Consideration C weighs heavily in favour of non-revocation;
(d)Other Considerations – International non-refoulement obligations is of neutral weight;
(e)Other Considerations – Strength, nature and duration of ties weighs moderately in favour of revocation;
(f)Other Considerations – Impact on Australian business interests is of neutral weight;
(g)Other Considerations – Impact on victims – is of neutral weight; and
(h)Other Considerations – Extent of impediments if removed weighs moderately in favour of revocation.
The Tribunal, having weighed the various Considerations, finds that the ongoing risk that the Applicant poses to the Australian community should he be released, outweighs the other Considerations in his favour.
The Applicant’s long and serious criminal history is of concern to the Tribunal. Time and time again the Applicant has failed the expectations of the Australian community. It is fortunate that the Applicant’s criminal transgressions have not resulted in the death or serious injury of himself, his criminal associates or the victims of his crimes.
Dr Turnbull was of the view that the Applicant’s mental health condition was not the cause of all of the crimes he committed, and was not of such a level, that the Applicant could have relied on that mental state as a criminal defence.
The Applicant’s extensive history of non-attendance at medical appointments is also of concern. If the Applicant failed to attend medical appointments in the confines of immigration detention, it gives the Tribunal little confidence that the Applicant would be compliant on his release into the community.
As previously noted, the Tribunal is not satisfied that the Applicant is truly remorseful for his criminal transgressions. When pressed by Mr Burgess during the Hearing, the Applicant again made it clear that he did not accept that he was guilty of some of the crimes he was convicted of. Unfortunately, the Tribunal concluded, as submitted by Mr Burgess, that the remorse expressed by the Applicant was a remorse that he had been convicted and not a remorse that he had committed the crimes in the first instance.
If the Applicant is released into the community and again starts abusing alcohol and drugs and commits crimes of the same nature as in the past, there is a real risk that he will put himself and others in harms way. The Tribunal is concerned if that is the case, particularly having regard to his history or reckless driving, that he may seriously injure or kill himself or others.
The Tribunal in weighing up the various Considerations places the health and safety of members of the Australian community at the apex of the considerations. The liberty and happiness of the Applicant and his family is, of course, a very important consideration. So too, is the best interests of the Applicant’s two young nephews. Further, the Tribunal has considered the impediments the Applicant would face if he is deported to South Sudan as well as the grief his separation will cause to his siblings, and, particularly, his mother.
The Tribunal was very impressed with the testimony of the Applicant’s mother. She is clearly a very caring person and a devoted mother and grandmother. She has raised by herself six children and in dangerous and tragic circumstances. Her resilience, fortitude and decency shone through in her testimony, and the Tribunal is very conscious that the decision reached will cause her much grief. This decision is made in this knowledge, and the Tribunal regrets the grief and trauma to MAM that this will cause.
After considering each of the relevant considerations and according them due weight, I have decided that the protection of the Australian community and the expectations of the Australian community cumulatively weigh heavily in favour of non-revocation, and those Considerations outweigh considerably those Considerations in favour of the Applicant.
DECISION
The decision under review is affirmed.
I certify that the preceding 455 (four hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
..................................[SGD]..................................
Associate
Dated: 27 January 2021
Dates of hearing: 14 and 16 October 2020 Counsel for the Applicant: Ms U. Ramachandran Solicitors for the Applicant: Refugee Legal Legal Representative for the Respondent:
Mr A. Burgess Solicitors for the Respondent: Sparke Helmore
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