JSQF and Minister for Immigration and Border Protection (Migration)

[2018] AATA 305

JSQF and Minister for Immigration and Border Protection (Migration) [2018] AATA 305 (24 January 2018)

Division:GENERAL DIVISION

File Number(s):      2017/6619

Re:JSQF

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:24 January 2018

Date of written reasons:        5 February 2018

Place:Sydney

The decision under review will be set aside and remitted with the direction that it be reconsidered following the obtaining by the Respondent of a report of a psychiatrist experienced in the treatment of persons in the position of JSQF, and with a view to the matter being determined afresh by the decision-maker following the obtaining of such report. 

..............................[sgd]..........................................

Deputy President B W Rayment

Catchwords

MIGRATION – mandatory visa cancellation – applicant does not pass character test – whether there is another reason why the mandatory visa cancellation should be revoked – insufficient evidence before Tribunal regarding Applicant’s prospects of rehabilitation – decision set aside and remitted

Legislation

Migration Act 1958 (Cth) ss 36, 501(3A)

Cases

WKCG and Minister for Immigration and Citizenship [2009] AATA 512

REASONS FOR DECISION

Deputy President B W Rayment

5 February 2018

1. These proceedings come before the Administrative Appeals Tribunal on the application of a gentleman given the pseudonym ‘JSQF’.  He is a 21 year old man who was born in Iraq.  Most of his life he has not lived in Iraq.  From a young age, he and his father and mother and siblings were removed by his father to Jordan, where he spent a number of years of his infancy.  According to the evidence that he led before me, he had only one year of schooling in Jordan in the Arabic language. 

2. The reason that his family left Iraq was because of persecution of those of the Mandaean religion within Iraq during the time of the Saddam Hussein regime.  The position a long time ago in Iraq was that some 70,000 Mandaeans lived there.  Today there is a much larger number, as one would expect, of Mandaeans but they are spread throughout the world.  There are apparently some 170,000, almost all of whom live outside Iraq and today the position appears to be that there are 3,000 within Iraq, although that number may no longer be current.  The father of JSQF was a goldsmith, and goldsmiths in particular, were apparently targeted in the days when his family left Iraq.

3. His father came to Australia before the rest of his family and arranged for his children and wife to come here later.  JSQF arrived here at the age of 13 years and so he has been here eight years. Also here are his three sisters and his brother. His childhood was very troubled.  He spent only one year in a school in Australia, which was apparently at Year 9 level after he learnt English.  He had severe difficulties in his household and he left home, becoming homeless for a period.  In that period he fell into bad company and also formed several romantic attachments in succession.  At the age of about 15 or 16 he fathered a child by his first partner.  That boy is now five years old.  He separated with that person and later formed another romantic attachment.  With that lady, he fathered two children; two daughters whose ages range between two and four.  Those daughters, and that son, are persons about whom he is very concerned in circumstances I will mention shortly.

4. The daughters were removed from the care of their mother as a result of intervention by the New South Wales State authorities, who placed the two girls in care and now has them with foster parents.  The son still lives with his first partner and that partner has now borne other children to her succeeding partner.  The contact that JSQF has had with the son has been spasmodic, from time-to-time, either through his first partner or through her mother.  He has had limited contact with the son.  The only time in which he has seen either of the daughters in the last two years is over a period of about two hours when the New South Wales authorities brought them to spend time with him while he was either in detention or in gaol.

5. JSQF has had brushes with the law at least since he was 15 years of age. There is no doubt that he fails the character test nominated in section 501 of the Migration Act1958 (Cth) (the Act), so that the question ultimately arising in this matter is whether the cancellation of his visa, which occurred as a result of mandatory provisions under section 501(3A) of the Act, may be revoked in circumstances calling for the exercise of discretion.

6. The offences of which he has been convicted, and the maximum penalties for those offences, are summarised in a document usefully prepared by Mr Eskerie from the firm of Sparke Helmore, who has appeared for the Respondent before me in these proceedings.  That document is called Respondent’s Summary of Maximum Penalties for the Applicant’s Offences and is attached to this decision as ‘Annexure 1’.

7. The view I have come to in this matter is that the decision ought to be set aside to enable further investigation to be made by a qualified medical practitioner with respect to JSQF so that proper information may be placed before the decision-maker, or if the matter comes back to this Tribunal, about his potential future if released back into the community.  He has had a severe drug problem, mainly involving methamphetamine or “ice”.  That drug is attributed by the applicant, and I am sure correctly, as the main cause of all of the offending of which he has been guilty.  The protection of the Australian community is a primary consideration requiring the attention of the decision-maker, and this tribunal, in determining whether or not the mandatory cancellation of his visa ought to be revoked. 

8. JSQF attended for about six months a course offered at a New South Wales correctional facility designed to rehabilitate him from his drug dependence.  A lengthy and useful document has been prepared by those who administered that course of instruction.  It involved teaching, group therapy and the like.  It is a process which he undertook in 2016.  Many positive things were said about JSQF by those who wrote that report and it appears that they believed that significant progress had been made by him in that course.  So far as I can see, in the life of JSQF to date, as at least an adult, the best time which he has had was the time spent in that course (in terms of reducing his drug dependence). It was, no doubt, part of the decision making in the department which led the department in early 2017 to revoke the mandatory cancellation of his visa at that time and to cause him to be released into the community. 

9. After that happened JSQF made communication with the New South Wales State authorities with a view to seeing his daughters and was informed by them that before he would be able to do so, he would need to undergo parenting courses, and other courses, which might take him as long as a year.  At that point, JSQF made the wrong decision.  He lapsed immediately into drugs and reoffended, as a result of which he is presently incarcerated again in a facility at Windsor.  He had then a perfect opportunity to exercise some maturity but did not do so, and one question that I have in mind might be studied by a psychiatrist to be referred to later in these reasons, is the prospect that such a thing might occur again if he were again released back into the community.

10. In some ways, an adverse reaction to what he was told by the New South Wales State authorities can be understood.  He has a commendable desire to make contact with and to influence all three children whom he has fathered.  The mother of his two daughters is not with them.  He told me that he has an intention to obtain an apprenticeship through his cousin, or relative, as a plumber.  That will take him four years to achieve.  In the first year he will work on the job.  In the second, and later years, he will go to a TAFE, or other institution, to learn technical aspects of the trade. 

11. Having employment will undoubtedly be of great assistance to him if he is released back into our community.  Not only that but he proposes to live with his sister for the time being, who would be in a position, presumably, to offer him real support and that is a matter of great importance to his potential future.  If he is able to avoid contact with persons who previously influenced him, that, also, will have a significant effect on his future.  But, most of all, if he is able to stay drug free, it is possible that his potential to reoffend will be at an acceptable level to this community.  I do not say that any such result can be confidently predicted on the material presently before me but, as a discretionary consideration if appropriate evidence is present either to the decision-maker or this Tribunal, in due course, it will deserve serious consideration.

12. If, on the other hand, the result of the present application is that he is sent back to Iraq, he will forever, essentially, be out of personal contact, not only with his children, but also with his sisters and his brother and his mother and father and he appears to have no relatives at all in Iraq who might give him assistance.  Mr Eskerie has informed me of certain facilities which may be available to him through the Australian Embassy in Baghdad, or one of the consulates in Iraq, but all of those matters are rather uncertain in relation to the future of JSQF. 

13. The decision which I have come to in this matter, having carefully looked at such evidence as has been placed before me, is that further information is required about his future before a reliable view can be taken about his prospects of rehabilitation.  Some years ago in this Tribunal a case of WKCG and Minister for Immigration and Citizenship [2009] AATA 512 was heard by Deputy President Tamberlin, who was himself a former Judge of the Federal Court of Australia. The Deputy President put a construction on the provisions, as they then stood, of section 36 of the Act which has since been amended. He had before him questions which would today arise in an appropriate case under section 36(1)(c) of the Act. He was significantly assisted in deciding one of those questions by expert evidence which was tendered before him. That applicant, who was then at Villawood, had both legal representation and had engaged a clinical and forensic psychologist to give evidence about the future of the applicant, as seen at that point of time, before the Deputy President.

14. In the case, the Minister qualified a senior consultant forensic psychiatrist and that person made a comprehensive report which was put in evidence before the Deputy President.  Each of the psychiatrist and the psychologist examined the risk that the applicant might reoffend and the conditions which were required for the purpose of providing more assurance that the risk would remain low.  That is a question which was not examined in the evidence tendered before me in any detail and the reason for that is that there was no psychiatric evidence tendered here.  The two persons who participated in the conduct of the 2016 process are not shown to have any medical qualifications and the question arises as to whether any pharmacology which might be prescribed for JSQF might be of any, and if so what, assistance to him in the future to enable him to remain drug free. 

15. But that question was not able to be explored by the persons who wrote the report and, in my view, in order to form a reliable view about that matter, it is necessary to direct the Respondent to arrange for the same kind of report from a psychiatrist, as was so useful in the proceedings before Deputy President Tamberlin, to which I have referred.  As has been done in other cases before this Tribunal, I, therefore, propose to set aside the reviewable decision and to direct that the question of revocation of the cancellation of the applicant’s visa be reconsidered following the obtaining of such a report.

16. Another matter, which has been ventilated in discussion in the course of these proceedings, is the possibility that the conditions in Iraq are such that JSQF is a person in respect of whom Australia owes non-refoulement obligations. That would, in my opinion, raise a series of questions referred to in section 36 of the Act. They have not, so far, been examined in detail and they would become directly relevant if JSQF decided to apply for a protection visa, which he is able to do at the present time. In my opinion, JSQF ought properly to be advised by a competent legal practitioner before he decided to make any such application. He has had difficulty in obtaining access to any such advice while in prison. He may have less difficulty in doing so in Villawood. That legal advice, if he gets it, could extend to the question whether he does articulate the question of non-refoulement obligations in this matter.

17. I make no direction about the matter to which I have just referred but I note that it is possible that JSQF may be in a better position to obtain legal representation once he is at Villawood and that representation could extend to the giving of advice to which I have just referred, as well, possibly, to any proceedings that may become necessary from the point of view of JSQF to apply to review any adverse decision made following the setting aside of the reviewable decision of which I am presently concerned. There have been great difficulties facing the applicant in these proceedings without a legal representative. For example, last week two of his sisters came here wishing to give evidence, which had not been reduced to writing. The Act requires that two business days’ notice be given to the Respondent before such evidence could be led.

18. On the third day of the hearing, held almost a week later, neither of those sisters attended but instead the brother of JSQF, and the sister with whom he would live, came here and their evidence could not be received because of the two day rule set out in the Act as to how these proceedings should be dealt with. If JSQF had legal representation, none of those events should have occurred and, indeed, the evidence of the sister with whom he proposes to live is critical evidence that a competent legal practitioner would have advised JSQF, and his siblings, to have available at this hearing. If the matter comes back, it is very much to be hoped that, either pro bono or otherwise, some legal practitioner would represent JSQF. I have been ably assisted by Mr Eskerie, who is instructed by the Minister, but this is just the kind of case where representation for the applicant would have been of particular assistance.

    DECISION

19. For the reasons I have given relating to the need to understand better the future position of JSQF, the decision under review will be set aside and remitted with the direction that it be reconsidered following the obtaining by the Respondent of a report of a psychiatrist experienced in the treatment of persons in the position of JSQF, and with a view to the matter being determined afresh by the decision-maker following the obtaining of such report. 

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

...............................[sgd].........................................

Associate

Dated: 5 February 2018

Date(s) of hearing:	18, 19 & 24 January 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore

ANNEXURES TO DECISION

Annexure 1 - Respondent’s Summary of Maximum Penalties for the Applicant’s Offences

Annexure 1

RESPONDENT’S SUMMARY OF MAXIMUM PENALTIES FOR THE APPLICANT’S OFFENCES

Court date	Offence	Sentences imposed on applicant	Maximum penalty	Section of the Act
15 Apr 2013	Goods in personal custody suspected being stolen (not m/v)	Bond s.33(1)(b): 9 months	5 penalty units OR Imprisonment for 6 Months, or both	s.527C(1)(a)(b) -Crimes Act 1900 (NSW)
	Stalk/intimidate intend fear physical etc harm (domestic)	Probation s.22(1)(e): 9 months supv juvenile justice	50 penalty units OR Imprisonment for 5 years, or both	s.13(1) - Crimes (Domestic and Personal Violence) Act 2007 (NSW)
18 Feb 2015[1]	Possess prohibited drug	Convicted s.10A	20 penalty units OR Imprisonment for 2 years, or both	Offence s.10(1) - Drug Misuse and Trafficking Act 1985 (NSW) Penalty: s.21 - Drug Misuse and Trafficking Act 1985 (NSW)
26 Feb 2015	Never licenced person drive vehicle on road – first offence	Fine: $250	20 penalty units	s.53(3) - Road Transport Act 2013 (NSW)
4 Jun 2015 (June 2015 offences)	Custody of knife in public – first offence	20 penalty units or imprisonment for 2 years, or both	s.11(C)(1) - Summary Offences Act 1988 (NSW)
	Two offences of possess prohibited drug	For one ‘possess prohibited drug’ the applicant received a s.10A conviction	20 penalty units or imprisonment for 2 years, or both	Offence s.10(1) - Drug Misuse and Trafficking Act 1985 (NSW) Penalty: s.21 - Drug Misuse and Trafficking Act 1985 (NSW)
	Three offences of never licenced person on road – prior offence	For one ‘never licensed person drive vehicle on road’ the applicant received a s.10A conviction and was disqualified from driving for three years (varied on appeal to five years)	30 penalty units or imprisonment of 18 months or both; disqualified from holding a driver licence for 3 years	s.53(3) - (4) - Road Transport Act 2013 (NSW)
	Four offences of police pursuit – not stop – drive at speed	In the case of a first offence – Imprisonment for 3 years In case of offence on a second or subsequent occasion - Imprisonment for 5 years	s.51B(1) - Crimes Act 1900 (NSW)
	Receive vessel/part-theft – serious indictable > $5000	Imprisonment for 12 years	s.188(1) and s.188(1)(a) -  Crimes Act 1900 (NSW)
	Drive conveyance taken w/o consent of owner	Imprisonment for 5 years	Offence: s.154A(1)(a) - Crimes Act 1900 (NSW) Penalty: s.117 - Crimes Act 1990 (NSW)
	Be carried in conveyance without consent of owner	Imprisonment for 5 years	Offence: s.154A(1)(b) - Crimes Act 1900 (NSW) Penalty: s.117 -  Crimes Act 1990  (NSW)
6 Jul 2015	Destroy or damage property <$2000	Section 10 conviction; domestic violence direction made	Imprisonment for 5 years	s.195(1)(a) - Crimes Act 1900 (NSW)
15 Jan 2016	Be carried in conveyance w/o consent of owner	Section 9 bond: 12 months	Imprisonment for 5 years	Offence: s.154A(1)(b) - Crimes Act 1900 (NSW) Penalty: s.117 - Crimes Act 1990 (NSW)
16 Mar 2017[2] (March 2017 offences)	Possess prohibited drug	Imprisonment for three months	20 penalty units OR imprisonment for 2 years, or both	Offence s.10(1) - Drug Misuse and Trafficking Act 1985 (NSW) Penalty: s.21 - Drug Misuse and Trafficking Act 1985 (NSW)
	Not stop at stop line at red light	Section 10A conviction	20 penalty units	s.56(1)(a) – Road Rules 2014 (NSW)
	Have custody of an offensive implement in a public place	Imprisonment for 12 months	50 penalty units OR Imprisonment for 2 years	s.11B(1) Summary Offences Act 1988 (NSW)
	Custody of knife in public place	Imprisonment for 9 months	20 penalty units OR imprisonment for 2 years	s.11C(1) Summary Offences Act 1988 (NSW)
	Drive motor vehicle during disqualification period (2nd offence)	Imprisonment for 6 months	50 penalty units OR imprisonment for 2 years	s.54(1)(a) – Road Transport Act 2013  (NSW)
12 Apr 2017	Possess prohibited drug	Imprisonment for 3 months	20 penalty units OR imprisonment for 2 years, or both	Offence s.10(1) - Drug Misuse and Trafficking Act 1985 (NSW) Penalty: s.21 - Drug Misuse and Trafficking Act 1985 (NSW)

[1] Not shown on National Police Certificate but see TB4 p.362.

[2] Sentences not varied on appeal in the Parramatta District Court on 12 July 2017.