JVGD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2830
•30 August 2022
JVGD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2830 (30 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4726
Re:JVGD
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:30 August 2022
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 7 June 2022, is affirmed.
............[Sgd].....................................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – Applicant is a 28-year-old man who arrived in Australia when he was a 12-year-old child as the holder of a Class XB Subclass 202 Global Special Humanitarian visa – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – offences involving family violence – best interests of Applicant’s minor daughter and siblings – minimal information about siblings – expectations of the Australian community – Australia’s international non-refoulement obligations – Applicant born in Ethiopia to parents who were citizens of Sudan – Country of reference is Sudan – Applicant previously found by AAT to be owed protection obligations – impact on victims – links to the Australian community – strength, nature and duration of ties to Australia – prospect of indefinite or prolonged detention – Reviewable Decision affirmed
Legislation
Migration Act 1958 (Cth) ss 36(2)(aa), 48A, 48B, 65, 91N(6), 195A, 197AB, 197C, 197C(3), 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501(1), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Cases
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 4(1)(e), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(2)(b), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(d), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.1(8), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
Proclamation on Ethiopian Nationality, No. 378 of 2003, Federal Democratic Republic of Ethiopia, 23 December 2003
Sudanese Nationality Act 1957 (last amended 1974), Democratic Republic of the Sudan, 31 December 1956
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
30 August 2022
Background
The Applicant is a 28-year-old man who was born in Bonga refugee camp in Gambella, Ethiopia, to parents who were citizens of Sudan. The Applicant’s mother, SL, passed away in Sudan.
He arrived in Australia on 8 May 2007 as the holder of a Class XB Subclass 202 Global Special Humanitarian visa (Visa) with his aunt (whom he calls his stepmother), his aunt’s husband, and three cousins (who he calls his siblings) and a nephew (R1/102). The Applicant’s aunt “undertook a formal agreement with the Department [of Home Affairs], on 28 September 2006, to care for the applicant, prior to his arrival in Australia” (Exhibit R3, para [4]). The Applicant’s biological father remained in Sudan (transcript/17).
The Applicant committed his first offence of “without lawful excuse trespassed on a place” when he was 16 years old and subsequently committed 10 additional juvenile offences between January 2011 and May 2012 (R2/192-193).
He committed his first adult offences on 15 May 2013, namely “receiving” and “gains benefit by fraud” for which he received fines of $50 and $100 respectively (R2/191).
Several days later, on 18 May 2013, the Applicant committed the offence of “aggravated robbery” whilst he was subject to a community-based order. On 30 August 2013, he was sentenced in the District Court of Western Australia to a term of imprisonment of two years and three months for the “aggravated robbery” offence. He received a $500 fine for breaching the community-based order.
As a result, on 13 July 2015, the Applicant’s Visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The Applicant made representations that were considered by the Minister who decided to revoke the cancellation decision. The Applicant was advised of this decision in a letter dated 4 February 2016, which he signed to acknowledge receipt of on the same day (R1/145). The letter also warned that he could be reconsidered for cancellation on character grounds in the future if he committed further criminal offences (R1/143-144).
Despite this warning, the Applicant subsequently committed a further nine offences between September 2016 and 2 January 2019 (R2/190-191).
These offences included two offences committed on 26 September 2018, being “aggravated burglary and commit offence in dwelling” and “stealing” for which the Applicant was sentenced to 18 months imprisonment and three months imprisonment, both to be served concurrently, in the District Court of Western Australia on 30 August 2019 (R2/190).
Shortly after, on 6 September 2019, the Applicant was sentenced to concurrent terms of imprisonment in the Perth Magistrates Court for three counts of “breach of protective bail conditions” committed on 19 December 2018, 23 December 2018, and 2 January 2019. He was sentenced to three concurrent terms of imprisonment of six months each (R2/190).
On 1 October 2019, the Applicant’s Visa was mandatorily cancelled again pursuant to s 501(3A) of the Migration Act (Cancellation Decision). The Applicant made representations to the Minister requesting revocation of the Cancellation Decision and submitted a personal circumstances form and references. These were received by the Department of Home Affairs (Department) on 20 November 2019 (R1/65-90).
On 15 December 2021, the Applicant was re-issued with an invitation to make representations to seek revocation of the Cancellation Decision due to Federal Court decisions which identified that the previous notice did not comply with the requirements of the Migration Act (R1/153-159). The Applicant submitted a personal circumstances form in support of revocation of the Cancellation Decision on 3 January 2022 (R1/93-113). On 15 and 25 February 2022 he emailed further support letters, certificates, and a letter to the Department (R1/114-124).
On 7 June 2022, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/16). It is this decision that is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 7 June 2022, when it was hand delivered to him (R1/185).
On 8 June 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (R1/1-6). Therefore, the Applicant lodged his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 7 June 2022, meaning that I must hand down a decision on or before 30 August 2022.
The Applicant also has a protection visa application on foot. He applied for the protection visa on 27 April 2020. On 25 June 2020, a delegate of the Minister refused to grant the Applicant a protection visa under s 65 of the Migration Act. The Applicant appealed that decision to the Migration and Refugee Division of this Tribunal. On 11 September 2020, the Tribunal, differently constituted, remitted the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(aa) of the Migration Act. This was because the Tribunal was “satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa)” (R1/135-142).
Correspondence from the Department to the Applicant dated 3 August 2021 refers to an intention to consider refusing to grant him a protection visa under s 501(1) of the Migration Act (R1/126). However, as at the date of the hearing, the Applicant’s protection visa application was still undergoing assessment with the Department.
Issues
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
The hearing of this application was held by videoconference on 11 August 2022.
The Applicant was self-represented. The Respondent was represented by Mr A Gerrard of The Australian Government Solicitor.
The Applicant gave evidence at the hearing. His former partner, SM, who is the mother of his minor child, also gave evidence. So did LB (also known as MS), who described herself as the Applicant’s 21-year-old younger sister. LB’s mother is SK, the Applicant’s aunt whom he refers to as his stepmother. Although they are apparently biological cousins, LB and the Applicant came to Australia as part of the same family unit and grew up together, and so their relationship is more of a sibling relationship than as cousins. I make the same finding about the other family member whom the Applicant refers to as his siblings or stepsiblings.
My impression of the Applicant was that he was, at times, evasive, and that he sought to minimise his conduct. He did not appear remorseful and lacked insight into his offending. The Applicant claimed not to understand some of the questions asked by Mr Gerrard, however I am satisfied that the Applicant did understand what was being asked, especially as the questions were put to him differently later, and he gave similar answers.
I admitted the following documents into evidence at the hearing:
(a)signed typed letter from the Applicant dated 22 June 2022 (Exhibit A1);
(b)email from SM dated 4 August 2022 attaching a typed signed letter from SM dated 4 August 2022 (Exhibit A2);
(c)undated and unsigned letter from LB (Exhibit A3);
(d)section 501 G-Documents, labelled G1 to G31, comprising pages 1 to 185 (Exhibit R1);
(e)supplementary section 501G documents, labelled SG32 to SG 33, comprising pages 186 to 384 (Exhibit R2); and
(f)section 91P Assessment for the Applicant dated 20 May 2020, comprising seven pages (Exhibit R3).
The Respondent also filed a Statement of Facts, Issues and Contentions dated 12 July 2022 prior to the hearing.
The country of reference
At the hearing, the Applicant’s evidence was that he was born in a refugee camp in Ethiopia and that his biological parents were citizens of Sudan. However, in the protection visa decision record of the Tribunal dated 11 September 2020, the Tribunal Member recorded that the Applicant’s evidence was that he was born in Bombo, Sudan (R1/137).
The Respondent tendered a s 91P Assessment for the Applicant which records he was born in Bonga Refugee Camp, Gambella, Ethiopia (Exhibit R3). The delegate who undertook the assessment noted that s 91N(6) of the Migration Act required that nationality of a particular country be determined solely by reference to the law of that country. The delegate noted the Sudanese Nationality Act 1957, Part II, Nationality by Descent, section 5(2), provides that “[a] person born after the commencement of this Act, shall be a Sudanese by descent if his father is a Sudanese by descent at the time of his birth”. The delegate also found that the Applicant’s father was a Sudanese citizen at the time of his birth and that “there is nothing to indicate that he has lost his Sudanese citizenship”.
The delegate also considered the relevant Ethiopian citizenship law, the Proclamation on Ethiopian Nationality, No. 378 of 2003 (Ethiopian Proclamation). Part two, Article 3 of the Ethiopian Proclamation provides for acquisition of citizenship by descent. It provides in part that “[a]ny person shall be an Ethiopian national by descent where both or either of his parent is Ethiopian”. Thus, as the delegate observed, “citizenship is not automatically granted to babies born in Ethiopia to non-Ethiopian parents”. The delegate also noted that citizenship could be acquired by law which requires a foreigner to apply for Ethiopian nationality. The delegate stated that as the Applicant was a minor under the care of his aunt, SK, (whom as I mentioned above, he calls his stepmother) and her husband, and was included in their application for a humanitarian visa, it was taken that he had not applied for Ethiopian citizenship. The delegate found that the Applicant was not a citizen of Ethiopia.
I agree with the findings of the delegate, which are also consistent with the Applicant’s evidence at the hearing of this application regarding his place of birth and the nationality of his biological parents. I am satisfied that the Applicant is a citizen of Sudan, which I find is the country of reference.
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act. That section provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I noted above, the Applicant has been sentenced to three separate terms of imprisonment upon which it can be concluded that he has a substantial criminal record. These were: a term of two years three months imprisonment imposed on 30 August 2013 for “aggravated robbery”; an 18-month concurrent term of imprisonment and a three-month concurrent term of imprisonment imposed on 30 August 2019 for “aggravated burglary and commit offence in dwelling” and “stealing”; and three six-month concurrent terms of imprisonment imposed on 6 September 2019 for three convictions for “breach of protective bail conditions” (R2/190-191).
The Applicant has therefore been sentenced to a term (indeed terms) of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) and (d) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of “another reason” with reference to the Full Federal Court’s decision in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
That is, there must be “a reason that carries sufficient weight or significance” (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction No 90 then provides:
(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.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Before evaluating the nature and seriousness of the Applicant’s offending (para 8.1.1(1) of Direction No 90) I will briefly outline his offending history. The Applicant has a juvenile history, as well as an adult history.
Juvenile conduct
I have treated the Applicant’s juvenile history as conduct, and therefore have given it significantly less weight than his adult offending.
The Applicant was convicted of 11 offences as a juvenile. The Applicant’s juvenile offences include “without lawful excuse trespass on a place”, “aggravated burglary and commit offence in dwelling”, “receiving”, “aggravated burglary and commit (stealing) or receiving”, “stealing”, “possessing stolen or unlawfully obtained property” and “aggravated robbery”. He was sentenced to community-based orders for most of these offences, no punishment for time spent on remand for two of the offences, and four months’ detention for an “aggravated robbery” offence committed on 5 November 2011 (R2/192-193).
On 27 May 2012, the Applicant committed the offence of “steal motor vehicle” whilst he was on a community-based order imposed by the Perth Children’s Court.
The Applicant was found by police in a vehicle with three associates. The vehicle had been stolen from a shopping centre on 24 May 2012. The complainant, who was the owner of the vehicle, was approached by a young African man, with a group of other young African men standing a few metres away. The initial man demanded the complainant’s car keys and when he did not hand them over, threatened the complainant with a tomahawk. The complainant handed over his keys and that male, together with four or five other males got into the complainant’s car and drove away. The Applicant was charged because he was in the vehicle without lawful excuse. He was not the person threatening the complainant with the tomahawk (R1/50; R2/195).
On 28 November 2012, the Perth Children’s Court sentenced the Applicant to a nine-month community release order and a $500 undertaking for the “steal motor vehicle” offence (R2/192).
Adult offending history
The Applicant’s first adult offences were committed on 15 May 2013. They were “receiving” and “gains benefit by fraud”. According to the statement of material facts, the Applicant was in the company of several associates outside a recreation and fitness centre. One of his associates entered the centre and stole a debit card from a sports bag and gave it to the Applicant. A short time later, the Applicant used the debit card to purchase a cooked chicken from a supermarket, with the purchase of the chicken being captured on close circuit television (R2/199).
On 13 January 2014, the Perth Magistrates Court imposed a fine of $50 for the “receiving” offence and a fine of $100 for the “gains benefit by fraud” offence.
On 18 May 2013, the Applicant committed an “aggravated robbery” offence. For convenience, I will refer to this as the Train Station Robbery offence. At the time he was subject to the community release order imposed by the Perth Children’s Court. When sentencing the Applicant in the Perth District Court on 30 August 2013, the sentencing Judge described the facts of the offence (R1/49):
The facts in this case highlights how serious the offence was. In the early hours of 18 March 2013, the victim, a 19-year-old student, was walking … from the Perth Train Station to [suburb name omitted] to try and get a train home.
He arrived at the station. He was told that there were no further trains until early the next morning, so he decided to find a taxi. He walked down the stairs, and he is viewed on the video walking along the pathway area, when around the corner comes you, together with some six or seven other males of various size.
I pause to note that you are a commanding presence. You are tall, strongly built young man. To be confronted by anyone of your stature at 2 o’clock in the morning would have been frightening. That you were then in company with others, indeed six others, would have been terrifying.
One of your group demanded that he hand over his wallet. He opened his wallet and showed there was nothing in it. That wasn’t good enough, and that was snatched. As shown in the video, you then readily get involved in the assault on this man while others are standing back. It is you that leaps in. And then in the course of this man struggling, you are seen to reach into his pocket in the course of striking him, but also taking the phone from his pocket and stealing it.
You and the other person were seen to continue assaulting this man as he’s backing away. It was a violent, unprovoked assault at 2 o’clock in the morning on a 19-year-old student going about his lawful business by you in company with a group of others in what your counsel has described as a pack mentality. I would describe it in similar terms, but it was just a violent assault and attack that was terrifying for the victim.
You need to understand that people within the community are entitled to walk about their business without being confronted by a group of large young men who just take what they want from other people as though it’s some right.
At the time of committing this offence, you were then on a community-based order [community release order] imposed by the Children’s Court in respect of your role in - where you were charged with stealing a motor vehicle.
The Applicant was sentenced to a term of imprisonment of two years and three months for the Train Station Robbery offence. The sentencing Judge imposed a $500 fine for the breach of the community release order.
On 25 November 2016, the Applicant was sentenced in the Joondalup Magistrates Court of “disorderly behaviour in public place”, which was committed on 26 September 2016, for which the Magistrate imposed a $600 fine (R2/191). There is no statement of material facts, nor are there any sentencing remarks for this offence.
At the hearing, the Applicant was asked about an offence of “disorderly behaviour in public” committed on 27 April 2017 (which I refer to and discuss below as the Stepsister Disorderly offence). However, he described a different incident. He stated (transcript/40-41):
At the time I was just drunk. I was drunk, walking - passing through - passing through and this - and this girl was sitting in this station. I don’t know, I said something - I said something to her. I said something to her but I don’t remember saying anything and she starts swearing at me. She start, you know, like I don’t know, she just start swearing at me and then I was drunk, I was drunk at that time so - and I start punching her. I start punching her. Like you know, she was (indistinct).
The Applicant’s ex-partner, SM, also gave evidence about this incident because she was with the Applicant (transcript/72):
That was the one incident that I’ve only seen to why he went to court. It’s because the woman - we were catching a train, I think it was a [name omitted] train station, and we stopped [train station name omitted], got off and I don’t know how they got into some sort of argument. But, that woman - like, I can already see by the way she was acting. She had some sort of disability or some impairment of some sort just by the way she was talking and acting. She was actually screaming on some people on the train beforehand. But, anyway, they got into some altercation and [the Applicant] had been drinking, like, you know, he wasn’t intoxicated but he had alcohol in his system. But, they were arguing. I don’t know what happened. But, all I remember is that when the hitting came is she actually said to him something along the lines of, “Oh, go F your mother” or go something, like, with the mother issue. She said something really bad about a mother. And knowing [the Applicant], I know that he hasn’t got a mother, like, his mum is dead and stuff. So, that makes me a bit emotional and, yes, it’s just sad that she said and he just got really upset and just, you know, went and punched her and it’s very sad that he did that.
It is unclear to me whether the facts described by the Applicant and SM related to the 25 November 2016 “disorderly behaviour in public place” offence for which the Applicant was fined $600 on 25 November 2016. I do, however, accept that this conduct occurred because it was described by both the Applicant and SM. That is, that the Applicant punched a woman at a train station who said something to him. As there are no sentencing remarks or any other police record of this offence, there is insufficient evidence upon which I can be reasonably satisfied that the woman was a vulnerable member of the community (for example, for the purpose of para 8.1.1(1)(b)(ii) of Direction No 90), as the only reference to that is in SM’s evidence.
On 27 April 2017, the Applicant was sentenced for “disorderly behaviour in public” which was committed on 9 April 2017. As I explain below, this offence involved a woman whom the Applicant described as his stepsister. For the reasons outlined in the background section above, she may biologically be his cousin. For convenience, I will refer to it as the Stepsister Disorderly offence. According to the statement of material facts, the Applicant was with a group of associates in the Perth city area when he assaulted a woman (his stepsister) in the group (R2/201). The following is an excerpt from the statement of material facts with references to the accused being the Applicant:
The accused became involved in a physical altercation with a female of the group to which he knocked to the floor.
The accused continued to assault the female with several punches and had to be pulled off by other members of the group leaving the female on the floor.
The accused walked with several males away from the female towards the intersection of St Georges Terrace and Barrack Street. The female stood up after several minutes and stood on St Georges Terrace when the accused returned to her punching her again causing her to fall to the ground a second time.
The accused continued to assault the female and in the process of the physical altercation the female received swelling to her right eye. (Nil complaint made by the female) The accused was pulled off by other males and walked away.
Police were advised of the accused location by City of Perth camera operators, the accused was located in Hay Street Mall Perth.
The accused was arrested under suspicion of assault occasioning bodily harm and conveyed to Perth Watch House, as a result of further investigation the accused was charged with the present charge preferred.
EXPLANATION: “I’ve been wanting to hit her all day”
At the hearing the Applicant said he remembered this incident. He explained that the woman was his stepsister and that “I just hit her a couple of times because she was running amok to her friends about me”. The Applicant explained further in the following exchange (transcript/39-40):
MR GERRARD: Can you just elaborate? What do you mean, “she was running amok with your friends”?
APPLICANT: Like criticising me and all that stuff, you know how womans talk behind closed doors and one of her friend told me what was going on and I didn’t take it - I didn’t take it well because I thought she was my sister. I thought - I thought, you know, like I trusted her because she’s my sister.
MR GERRARD: So you felt betrayed by her?
APPLICANT: She - I feel betrayed. I feel betrayed by her.
MR GERRARD: And you said that you punched her several times until she fell to the ground. Is that right?
APPLICANT: Yes, I did, yes.
MR GERRARD: And then she was dragged again by you and you again punched her and she fell again. Is that right too?
APPLICANT: Yes.
MR GERRARD: And when you were asked by the police about that you said, “I’ve been wanting to hit her all day”?
APPLICANT: Yes, because she pissed me off.
The Applicant was fined $1000 for the Stepsister Disorderly offence in the Perth Magistrates Court (R1/191).
On 10 January 2018, the Applicant was sentenced for a similar offence of “behaving in a disorderly manner in a public place or in sight or hearing of any person in a public place” for an incident that occurred on 28 December 2017 (R2/190). As I outline below, this offence involved a member of the public trying to assist in an altercation involving the Applicant’s young female cousin, and so I will refer to it as the Good Samaritan Disorderly offence. According to the statement of material facts, the Applicant was in Perth near some fast-food outlets. He was “observed in an altercation with a female” on the City of Perth’s close circuit television. The female “did not appear to want to go with the [Applicant] and has sat down”. A member of the public approached the Applicant and informed him he was going to ring the police. The statement records that the Applicant took “offence to this and has punched the member of the public 6 to 7 times to the upper body and head, following him as he backs away and hits him again causing the member of the public to drop his phone as he falls to the floor”. The Applicant walked away and was followed by the City of Perth close circuit television until police were able to detain him. The statement of material facts states that the Applicant’s explanation was “I was trying to get cousin home and this guy came over saying he was going to ring the police on me and i took offence to it” (as original) (R1/204).
At the hearing the Applicant confirmed that the woman was his cousin who was 16 or 17 years old at the time (transcript/43). He was asked about parts of the statement that the member of the public gave to the police (R2/242-248). This provides further detail about the offences (transcript/41-42):
MR GERRARD: And what he says at paragraph 9, after some introductory statements, he says:
I heard a lady’s voice screaming. She was saying, “Can someone help me? Let me go. I need to call my dad”.
I looked over to my right-hand side and saw a male pulling a woman down the street by the arm.
He was pulling her by the upper arm, and I could see that she was trying to get away from him.
Do you remember that?
APPLICANT: Yes, I tried to take my little cousin home and she refused to go home.
MR GERRARD: And you’re pulling her along and she’s screaming?
APPLICANT: Yes.
MR GERRARD: And a little later at paragraph 15? …
As they went past Hungry Jack’s, I saw her fall to the ground and then the guy was trying to drag her along the street. The woman was shouting, “Please let me go”.
Do you remember that?
APPLICANT: Yes, I do.
MR GERRARD: And at paragraph 19 he says:
I walked towards him and said, “You need to let her go or I’m going to call the police”. He let go of her and turned straight to face me. He said, “Go on then, call the police”. I said, “Just step back from her”. Then he struck me to the left side of my face above my eye. That happened so quickly I didn’t see it coming at all.
MR GERRARD: Do you remember that? .
APPLICANT: Yes, I do
MR GERRARD: You’re dragging your cousin along the street, she’s screaming, a man intervenes and says, “Stop or I’m going to call the police” and you hit him; yes?
APPLICANT: Yes, I did.
MR GERRARD: Yes?
APPLICANT: I did.
MR GERRARD: And I was extremely dazed straight away. I wasn’t aware exactly of what had happened. But, I managed to keep my balance and stay on my feet.
Straight after that he began punching me again. He punched me around five to six times all on my head and face.
I was shouting to him to stop and to get away, but he kept hitting me.
During those blows, I was knocked to the ground. I don’t recall him punching me whilst I was on the ground and I was not knocked out.
That was when some other people nearby intervened.
MR GERRARD: So, that’s all true? Did that all happen?
APPLICANT: Yes, it all happened.
The Applicant was fined $750 for the Good Samaritan Disorderly offence in the Perth Magistrates Court (R1/190).
On 30 August 2019, the Applicant was sentenced in the Perth District Court for “aggravated burglary and commit offence in dwelling” and “stealing” offences committed on 26 September 2018. The victim of this offence was the Applicant’s former partner, SM, who is the mother of his minor daughter and she was 18 years old at the time. According to the statement of material facts, SM and a friend were at SM’s home with the Applicant’s daughter. The Applicant and SM had an argument earlier that day on Facebook Messenger. SM told the Applicant not to come to her home. The front door was closed but unlocked, the Applicant entered the front door without permission and they had an argument. The Applicant left but returned after five minutes and continued to argue with SM. While he was there, the Applicant damaged SM’s television by throwing an object at it so that it was damaged beyond repair and would not work. The Applicant also wanted to check SM’s phone which she gave to him with her password. He refused to return her mobile phone and took it with him when he left (R2/207).
The Perth District Court sentenced the Applicant to a concurrent term of imprisonment of 18 months for the “aggravated burglary and commit offence in dwelling” offence, and a concurrent term of imprisonment of three months for the “stealing” offence (R2/190). For convenience, I will refer to these offences as the Phone Stealing offences.
On 6 September 2019, the Perth Magistrates Court imposed a $200 fine for the offence of “possess a prohibited drug (cannabis)” which the Applicant committed on 26 October 2018. The Applicant had been arrested in relation to other matters and police found a small amount of cannabis (less than 0.6 grams) in his pocket when they searched him (R2/215).
On 6 September 2019, the Applicant was also convicted in the Perth Magistrates Court of three counts of “breach of protective bail conditions” committed on 19 December 2018, 23 December 2018, and 2 January 2019 (R2/190). I will refer to these offences as the Protective Bail Breach offences. The statement of material facts states that the Applicant entered into a bail undertaking to appear at the Perth Magistrates Court on 13 February 2019. The conditions that were part of this undertaking included that the Applicant was not to approach or be within 50 metres of SM or her premises. The Applicant breached this condition on 19 December 2018 by attending SM’s home. When asked by police he stated that he was there to see his daughter. He breached that condition again on 23 December 2018 and 2 January 2019 in the same manner and for the same reason (R2/218-219).
On 6 September 2019, the sentencing Magistrate found that the Applicant “deliberately failed to comply with [his] requirements” (that is, the conditions of his bail undertaking) and that the three breaches “warrant a term of imprisonment, having regard to the persistence of [his] behaviour”. The sentencing Magistrate imposed three terms of imprisonment of six months for the Protective Bail Breach offences, each to be served concurrently with the Applicant’s existing term of imprisonment (R1/45; R2/218-219).
Assessing the nature and seriousness of the conduct
Direction No 90 provides that certain crimes or conduct should be regarded as being “very serious”. These include “violent crimes”, “crimes of a violent nature against women regardless of the sentence imposed” and “acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed” (para 8.1.1(1)(a)(i), (ii) and (iii)).
The Train Station Robbery offence involved a violent assault on, and robbery of, a 19-year-old student in company, with the Applicant being one of the perpetrators of the assault. I find that it meets the definition of a “violent crime” and that it should be viewed very seriously.
I am also able to consider conduct of the Applicant under this sub-paragraph. Thus, whilst the Stepsister Disorderly offence and the Good Samaritan offence were disorderly conduct offences, they involved violence. The Stepsister Disorderly offence involved the Applicant punching his stepsister several times. The Good Samaritan offence involved an assault by the Applicant against his young cousin whom he dragged by the arm while she was calling out for help. As I discuss below in the section on family violence, the conduct associated with the Stepsister Disorderly offence meets the definition of family violence. Additionally, the Good Samaritan offence involved the Applicant repeatedly punching a member of the public in the face and upper body six or seven times who threatened to call the police due to the Applicant’s violent conduct towards his cousin. I therefore also find that the Applicant’s conduct with respect to the Stepsister Disorderly offence and the Good Samaritan offence, which the Applicant accepts that he committed, falls into the very serious category.
Similarly, the Applicant and SM described an incident where he punched a woman at a train station who said something to the Applicant that upset him. Although it is unclear whether this incident was the basis of the 26 September 2016 “disorderly behaviour in public place” offence, this violent conduct towards a member of the public should also be viewed as very serious.
With respect to the Applicant’s adult offending, his serious offending is also interspersed with some less serious offences such as “receiving”, “gains benefit by fraud”, and “possess a prohibited drug (cannabis)”.
Paragraph 8.1.1 of Direction No 90 is not limited to “offending” (that is, offences an applicant has been convicted of). It also refers to “other conduct”. The Applicant has a juvenile history, which includes some conduct of a more serious nature such as two “aggravated burglary” offences and “aggravated robbery”. The Applicant was sentenced to four months’ detention for this latter offence, which is an indication of seriousness given that a custodial sentence, especially for a child, is most often a last resort. Again, there are some less serious offences in the Applicant’s juvenile history such as trespass, stealing, receiving, and possessing stolen property offences.
As an adult, the Applicant has been sentenced to terms of imprisonment (para 8.1.1(1)(c) of Direction No 90) on three occasions. As I outlined above, for the Train Station Robbery offence the Applicant received a prison sentence of two years and three months. The sentencing Judge commented that imprisonment was appropriate due to the seriousness of the offending (R1/54):
… this is a very serious offence and the only appropriate sentence is one of a term of imprisonment. Having regard to the circumstances in which this occurred and the very violent manner that this attached [sic] was launched on this young man to seize his property, the only appropriate sentence is a term of imprisonment.
With respect to the Phone Stealing offences, the Applicant was sentenced to 18 months for the “aggravated burglary and commit offence in dwelling” component and three months for the “stealing” offence. The sentencing Judge commented that the offending was too serious to suspend (R1/41):
But the view in the court’s mind is that the offending is too serious to warrant a suspended term of imprisonment. There is a need for general deterrence in relation to any domestic violence in the community. But more importantly, there is a need for personal deterrence in your case, which has to be weighed against the sentencing consideration for general deterrence. There’s also a need for protection of other members of the community from your behaviours.
With respect to the Protective Bail Breach offences, the sentencing Magistrate commented (R1/45) that, “I’m nevertheless of the view that these do warrant a term of imprisonment, having regard to the persistence of your behaviour”. The Magistrate sentenced the Applicant to three six-month terms of imprisonment, each to be served concurrently with the sentence the Applicant was serving for the Phone Stealing offences. Often breaches of court-imposed orders result in fines or suspended sentences. I find that these terms of imprisonment, together with the sentencing Magistrate’s comment, tend to suggest the seriousness with which the court viewed the breaches.
At the time of these sentences, the Applicant was aged 19 years (Train Station Robbery offence) and 25 years of age (Phone Stealing offences and Protective Bail Breach offences). Imposing sentences of imprisonment are usually a last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]), especially for a young person, and reflect the seriousness of the offending.
I do note, however, that as well as sentences of imprisonment, the Applicant has received fines for some offences such as “receiving”, “gains benefit by fraud” and for reoffending when he was subject to a community release order, which is indicative of the less serious nature of these offences. However, I find that the fines imposed by the court for the Stepsister Disorderly offence and the Good Samaritan offence do not diminish the serious nature of the violent conduct by the Applicant that occurred in the conduct of those offences. In that regard, I note para 8.1.1(1)(c) of Direction No 90 directs decision-makers to consider the sentence imposed by the courts (with the view that there is a correlation between the sentence and seriousness) with the exception of certain crimes or conduct, which includes violent crimes and family violence.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant committed 13 adult offences between May 2013 and January 2019. Overall, the offending can be said to be frequent (noting that on three occasions he committed two offences on the same day). The serious offences committed by the Applicant, (including the Train Station Robbery offence, Stepsister Disorderly offence, Good Samaritan offence, and Phone Stealing offence), occur at several intervals in the Applicant’s adult criminal history, and so there is no overall trend of increasing seriousness. His adult history does, however, show that the Applicant has become more violent during his offending as an adult.
I also consider that there would be a cumulative effect of repeated offending given the number of offences committed, numerous court attendances and three custodial sentences of imprisonment. This would have had the effect of burdening the resources of police, the courts and corrective services which are ultimately funded by the taxpayer (para 8.1.1(1)(e) of Direction No 90).
There is no evidence before me to suggest that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending, such as on incoming passenger cards (para 8.1.1(1)(f) of Direction No 90).
The Applicant has reoffended after being formally warned (para 8.1.1(1)(g) of Direction No 90). As discussed above, the Applicant’s Visa was previously cancelled on 13 July 2015, but after making representations, the Minister decided to revoke that cancellation decision. He was advised of the revocation of the cancellation in a letter dated 4 February 2016, which he signed to acknowledge receipt of on the same day (R1/145). That letter warned the Applicant that he could be reconsidered for cancellation on character grounds in the future if he committed further criminal offences (R1/143-144). Despite receiving this warning in February 2016, the Applicant committed nine further offences and was sentenced to two custodial sentences of imprisonment for the Phone Stealing offences and the Protective Bail Breach offences.
As I have explained above, the Applicant has committed several offences, including violent and domestic violence offences, which should be viewed very seriously. This seriousness is also reflected in the sentencing comments and (except for the Good Samaritan Offence and the Stepsister Disorderly offence) the penalties imposed. He continued to offend after being formally warned. Thus, despite the Applicant having committed some offences that can be regarded as less serious, overall, his offending can be viewed as serious.
For these, and the other reasons that I have outlined above, I find that paragraph 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
Should the Applicant commit further offences involving violence, including domestic violence, the associated harms to members of the community are potentially serious and could include injury, impairment, or loss of life, as well as psychological harm to victims.
The Applicant has also committed offences of a general nature involving property including “stealing”, “receiving”, and “gains benefit by fraud”. Broadly speaking, offences against property are less serious than offences against persons, but such offences can also result in psychological and financial harms to victims, as well as contributing to increased costs for businesses including insurance premiums which are ultimately passed on to consumers.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The evidence suggests that there were several factors which contributed to the Applicant’s offending and other conduct, including violence. The main factors appear to be his being under the influence of drugs and alcohol and anger management issues. Immaturity and associating with negative peers are also likely to have contributed.
The Applicant’s evidence at the hearing was that he started drinking when he was approximately 14 or 15 years old and that he would drink to get drunk every weekend. Around that time, he also started using cannabis and from the age of approximately 16 or 17 he was using cannabis daily (transcript/22-24). When asked about whether his drinking played a part in his offences, the Applicant responded that it did with some of the charges including “stealing, robbery, burglary, that type of stuff like that” (transcript/24). The Applicant later stated that (transcript/63):
… when I was drunk, when I was high I used to do stupid things. I used to do stupid things like, but threatening people, no, that’s not one of my things, no. I don’t threat people. I don’t threat people at all.
The Applicant also gave evidence that he was drunk when he punched the woman at the train station who offended him, although his partner thought he had been drinking but was not intoxicated (transcript/40-41 and 72).
When asked about his violent offences, the Applicant’s evidence was that they occurred when “somebody piss me off sometimes” and that, “when I was young, I don’t really take anything from people, like use - using names, calling me this, calling me that, I never used to take anything from people”. When asked for clarification, the Applicant said that some of his violent offences may have been connected to drinking and drug use (transcript/24). The Applicant also gave evidence that he offended because (transcript/25):
I was young and I was living carefree. I was living carefree and I didn’t realise what I was doing to myself when I committed them crimes.
The Applicant also attributed his juvenile offending to being immature and falling in with the wrong crowd, and that he initially did not realise that they were committing crimes (transcript/26). In this regard, I note that several of the Applicant’s offences occurred when he was in company. For example, when he was found in the stolen car in May 2012, the Applicant was with other young men. His May 2013 “receiving” offence was committed when he was in the company of a group of young men outside a recreation and fitness centre. The Train Station Robbery offence was committed when the Applicant was in the company of several other young males.
When sentencing the Applicant for the Phone Stealing offences, the Judge noted that the Applicant was “under the influence of illicit substances at the time” (R1/39). However, when sentencing the Applicant for the Train Station Robbery offence, the sentencing Judge observed that the Applicant had some history of substance abuse and began using cannabis when he was 14 and that the Applicant had issues with alcohol, which he often consumed to excess. The Judge concluded, however, that the Applicant was not “significantly affected by alcohol that night and that it did not play any significant role in [the Applicant’s] behaviour” (R1/51). Regardless of his level of intoxication, the Applicant had been consuming alcohol at the time of these offences, and I find that it is likely to have been a contributing factor.
The Applicant has done minimal rehabilitation to address the factors that have contributed to his offending. In 2014, his main intervention needs were assessed by prison treatment assessors as being in the areas of “Cognitive Skills, Education and Vocational Training, Violent Offending, Addiction Offending”. He was assessed as requiring the High Intensity Violence program, the High Intensity Pathways program and the Medium Intensity Think First program (R2/325).
In April and May 2014, he completed the intensive Think First program which addresses decision-making and consequential thinking skills (R2/379-384). The program facilitators reported that he made positive gains and that in the post-course interview he stated that “his future goals were: staying off drugs, staying out of prison, getting his licence, being there for his family, making up lost time with his brother and getting a house” (R2/384). And yet, after his release from prison the Applicant committed nine offences, including offences involving violence and domestic violence, and was sentenced to two terms of imprisonment.
The Applicant refused to participate in the High Intensity Violence program and the High Intensity Pathways program (R2/325). The Applicant gave the following explanation as to why he refused to do the Pathways program (transcript/36):
MR GERRARD: Why did you not want to do that program?
APPLICANT: It wasn’t the best suggestion at that time, that’s why I didn’t want to - like I didn’t wanted to do anything at all when I was in prison. I didn’t want to do anything. I didn’t want to do social - associate with anybody so I isolated myself from prisoners, from prison guards and all that. I just wanted to be alone and to get my mind straight before anything happens. That’s why I refused to do the course.
The Applicant also stated that, “I refused all of them because I didn’t want to do it” (transcript/36). When asked why he did the Think First program, the Applicant stated that he did the program “because that one was related to one of crime I’d done, was related, so I needed to do it to get my mind straight”. When it was put to him that he had committed a violent crime, the Applicant responded, “yes, back then - back then I was living carefree and my mind was always on something - doing something and so that’s why” (transcript/36).
With respect to the Applicant having outstanding treatment needs, he was refused parole in 2014 (R2/326, see also transcript/37). There is no decision of the Prisoners Review Board before me, however the Applicant’s parole review report completed by corrective services did not support his parole because he had “not yet addressed his offending behaviour” and “still has outstanding treatment needs”. The report stated that whilst the Applicant was currently completing the Think First program, he had refused to participate in the Pathways and High Intensity Violence programs and had not engaged in any voluntary programs (R2/369). It is not clear to me whether the Applicant was granted parole in 2019, however, again, the Applicant’s parole review report completed by corrective services recommended that parole be denied due to a perceived risk of reoffending, his current offences including the Protective Bail Breach offences indicating that he was unlikely to comply with parole conditions, and no confirmed accommodation (R2/376). However, even if parole was granted, his sentence expiry was 1 July 2020, and so the Applicant will not have the benefit of a period of parole supervision under conditions that may assist with his rehabilitation and reintegration into the community.
The Applicant did, however, complete several education and vocational training units in areas such as food, occupational health and safety, budgeting and money, computer skills and other general adult education units (R2/325). The Applicant has limited employment experience and a limited employment history. He worked loading and unloading boxes from delivery trucks for a retailer for approximately a year and a half, and for six months in 2017 before he went to prison, he went to TAFE and was undertaking an apprenticeship as a mechanic (transcript/19-20). He was also dismissed from his employment in prison on 26 February 2015 for not attending shifts. He explained at the hearing that this was because (as with his refusal to undertake the Pathways and Violence programs), “I didn’t wanted to do anything” (transcript/37). The Applicant also gave evidence that his brother would help him to get a job working in a kitchen where he will start with washing dishes (transcript/64). In her letter (Exhibit A3), the Applicant’s sister, LB, also referred to his wanting to be a chef. There is no evidence of who the Applicant’s employer would be, or if he has a firm offer of employment. The units that the Applicant completed in prison, may help him to find work, and if he is able to work in a kitchen, that may help him to make meaningful use of his time, which may assist with his reintegration.
The Applicant has provided two online certificates issued in February 2022 which confirm he completed a “Drug and Alcohol Abuse 101” course and an “Anger Management 101” course (R1/120-121). In his evidence at the hearing the Applicant explained that they were both online courses which he completed over six or seven days. The Applicant had difficulty explaining what he learnt from those courses at the hearing, as the following exchange indicates (transcript/57-58):
MR GERRARD: What did you get out of your anger management course?
APPLICANT: Yes, I learn a lot about the anger management. The words I was reading from anger management, I understand most of it about anger issues and all that. But, I learn a lot from the course and I done couple of courses as well. Parenting and self-esteem. But, I never got the chance to send it to you guys.
SENIOR MEMBER: That’s okay. I’m still interested in this anger management course. So, you said that you learnt about anger issues?
APPLICANT: Yes.
SENIOR MEMBER: So, can you tell me a bit more about what you learnt?
APPLICANT: Yes, I learn how to respect people. I learn how to respect myself. And I learn how to speak to people clearly and not - anger management was hard for me. Because, I didn’t do it in gaol.
SENIOR MEMBER: Yes?
APPLICANT: When I start doing it here online, it wasn’t easy for me to do. It was hard. So, I had somebody help me out with it in here. And I learn a lot from it.
SENIOR MEMBER: Anything else that you are able to tell me about what you learnt in the anger management course?
APPLICANT: There was hard questions in that. But, I done it a while back, you know.
SENIOR MEMBER: All right. And what about the drug and alcohol course; what did you learn from that?
APPLICANT: Yes, I learn about the drug and alcohol. Yes, it can destroy your liver and destroy your mind at the same time. And can make you very sick and even kill you. That’s what I learn so far from drug and alcohol. But, it’s worse for some people. Even if they know how to handle what they use, if you use it the wrong way and take advantage of it, you will overdose.
…
And drugs, it’s not easy when you use it. Like, sometimes it make you lose your mind and out of control. There’s one time I was taking heaps of pills and heaps of drugs and I couldn’t control myself. That’s why I agreed to do the course in here …
Even if the Applicant made more gains than he was able to articulate, I find, based on the nature of his offending, his reoffending, and his history of alcohol and cannabis use, that the Applicant is likely to require far more intensive treatment than these two online courses for the risk of relapse and reoffending to be reduced.
I am also concerned that the Applicant tried to minimise his offending conduct at the hearing, although he denied trying to do this. I will discuss two examples.
The first example is that the Applicant tried to minimise his involvement in the Train Station Robbery offence, stating that (transcript/31):
Yes, I was the main victim because I got caught, so the Judge put everything on me. I took all - I took the charges. I pled guilty for it too as well.
This attitude appears consistent with that observed by the sentencing Judge on 30 August 2013 who stated that the Applicant sought to minimise his role when confronted by police, downplayed his involvement, blamed others, and lacked remorse (R1/48, 52, 53). When questioned further at the hearing, the Applicant later admitted his role in the offence (see transcript/30-33).
Secondly, when asked about the Phone Stealing offences at the hearing the Applicant claimed to have difficulty remembering the incident and gave varying versions of the events. He initially gave evidence that he went to SM’s house to borrow her phone, accidentally left with it and that she lied to police that he had stolen it (transcript/46). Next, his evidence was that he went to the house to visit his child (transcript/47). When taken to SM’s statement about the incident, the Applicant thought it might have been correct that they had an argument via Facebook Messenger earlier that day (transcript/51 and 53). He agreed that when he came in without knocking, SM told him to leave (transcript/51). The Applicant said he did not remember arguing with SM and did not remember picking up a salt lamp and threatening to throw it at her, although “it might have happened” (transcript/52-53). He remembered having an argument via Facebook Messenger and “breaking a couple of TVs” (transcript/53). He said he may have pled guilty because he “didn’t want to deal with it” and “to get it over and done with” (transcript/54). Later in his evidence, the Applicant provided yet another version of events. He agreed with a statement he gave to the Department where he said he went to check on his daughter that day because SM had been drinking and taking drugs and he was concerned about his daughter’s wellbeing. As I discuss below, I accept SM’s evidence that she did not use drugs. Towards the end of his evidence the Applicant asked to clarify his evidence because he said the questions were unclear. He said he asked to borrow the phone “but I didn’t use my manners”. He said he and SM had a fight and were throwing things at one another and that he ended up hitting the TV. He said he did not remember picking up the lamp and thought he would have thrown it at SM if he did, because at that time he “used to do stupid things” when he was drunk (transcript/62-63). Overall, the Applicant’s evidence was inconsistent, and I find that he was not confused, but rather trying to minimise his behaviour.
The Applicant’s attempt to minimise his offending suggests that he lacks insight into it, which in turn, is a risk factor with respect to the Applicant reoffending.
It is also concerning that the Applicant has not been deterred from reoffending in the past notwithstanding juvenile detention, a written warning, and going to prison on two occasions. When asked about why these things did not deter him, the Applicant gave the answer that he should have listened to his mother and applied for Australian citizenship but that he “wasn’t paying attention to what she was saying” and that his “mind was too distracted”. He said that he offended after receiving the warning because he was “premature” (which I infer is immature) and “I don’t know what was still going on around me” (transcript/39). I later asked the Applicant about using drugs and alcohol again, and essentially, what had changed. As the following exchange indicates, the Applicant said he had matured, that he had family responsibilities and that he wanted to be a good role model for his daughter (transcript/63-64):
SENIOR MEMBER: So how do you feel about getting drunk or getting high now?
APPLICANT: Now?
SENIOR MEMBER: Yes?
APPLICANT: No. No, I quit - I quit drinking and I quit all - everything.
SENIOR MEMBER: And how can I be ---?
APPLICANT: I know ---
SENIOR MEMBER: - - - how do I know that you’re not going to start drinking or using drugs again?
APPLICANT: Yes, I was going to clarify that. I was going to ---
SENIOR MEMBER: Yes?
APPLICANT: Like right now … I’m turning 28. I’m turning 28. That’s an age for men to try to do something with his life. Like I’m turning 28. I don’t think I’m going to be wasting my life running around going to liquor stores and drinking, and I have responsibility now. I have responsibility. I have people to look after now. So I’m not - I’m not going to just sit at home and (indistinct), “Hi mate, let’s go liquor store now.” I’m not going to do that. I’m just going to go home, look for work. If I don’t find work I look for another one. Maybe I go different state and look for work. There’s too many job - there’s too many jobs in Australia, Western Australia. There’s job everywhere. And I’m looking forward for that opportunity to maybe get my visa or whatever and go live my life and do better with my life.
SENIOR MEMBER: All right. I mean you were talking about you’ve quit everything and you’ve got people to look after, but you had a young child to look after before - ?
APPLICANT: Yes.
SENIOR MEMBER: - - - but you still ended up using cannabis and alcohol and you ended up in prison. So what’s different about now?
APPLICANT: Yes, that time when I was using, I was still confused. I wasn’t mature, you know, to realise what I brought to this world. Like, I brought somebody that means to me so much it’s so hard to even describe it. And now doing all the things I done back in the days, like, back then, it’s not going to look good for her. That’s not the story I want to tell her. I want to tell her a different side of my story and I want to let her know who her father is, a great man. Not just drunken fellow, I don’t know, arguing for no reason, chucking things for no reason, beating up people for no reason. No, I don’t want to tell her that story. I want to tell her a different side of the story.
The Applicant’s 21-year-old sister, LB, gave evidence that she thought he had matured (Exhibit A3; transcript/82). So did his 21-year-old ex-partner, SM, based on conversations she has had with him including where he has expressed plans for the future (Exhibit A2; transcript/77). If the Applicant has matured and has reflected on his life and his offending, he may be able to find the motivation to find work and to be a good role model to his daughter. I am, however, concerned that the Applicant may not have a comprehensive enough plan. I note that the Applicant does not want to reoffend or to relapse to drug and alcohol use, wants to find work in a kitchen with his brother’s friend who is a chef, and that he would like to be a good role model to his daughter. However, I am concerned that, together with him likely requiring more intensive treatment for drug and alcohol abuse and violence, he does not have sufficient supports in the community to help him achieve this. His sister and ex-partner are both 21 years of age and are therefore very young. He does not propose undertaking any rehabilitation, such as counselling, in the community. Additionally, the birth of his daughter did not prevent him from offending in the past.
There are some factors that may be protective and influence the Applicant not to reoffend. These include that he is now a 28-year-old man who has been in prison and then immigration detention since 2019. He has matured and has been able to reflect on his life. As I mentioned above, it is his intention to find work in a kitchen and to be a good role model for his daughter.
However, as I have discussed above, there are also factors that suggest a risk of reoffending. These include:
(a)The frequency of the Applicant’s offending and the fact that he has not been deterred from future offending by juvenile detention, a warning from the Department, and imprisonment.
(b)His minimisation of his offending at the hearing which shows a lack of insight into his offending behaviour.
(c)His less than comprehensive release plan, which does not include any counselling or community support or any intention to disassociate from negative peers, and is unlikely to be protective enough.
(d)His history of drug and alcohol misuse, and anger management issues for which he has not undergone intensive enough treatment.
(e)Having a daughter was not a sufficient factor to deter him from offending in the past.
Paragraph 9.1(2) refers to ss 197C and 198 of the Migration Act. These provisions concern the removal of unlawful non-citizens from Australia. The effect of these provisions was recently clarified by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth). The effect of the amendments to s 197C of the Migration Act is that a non-citizen cannot be removed to a country under s 198 of the Migration Act if a protection finding has been made in relation to that person and country unless the protection finding decision has been quashed or set aside; the Minister is satisfied that the person is no longer owed protection obligations; or the non-citizen requests voluntary removal.
As I referred to in the background section above, on 11 September 2020 a Member in the Migration and Refugee Division of this Tribunal was “satisfied that the applicant is a person in respect of whom Australia has protection obligations under s. 36(2)(aa)” and remitted the matter for reconsideration with the direction that the Applicant satisfies s 36(2)(aa) of the Migration Act (R1/135-142). The Minister accepts that a protection finding has been made in respect of the Applicant. However, as I also mentioned above, as at the date of the hearing, the Applicant’s protection visa application was still undergoing assessment with the Department.
This means that there is a possibility that the Applicant’s protection visa may be granted. However, it could also be refused. This would result in the Applicant being prevented, by s 48A of the Migration Act from making another application for a protection visa whilst in the migration zone, unless the Minister determines under s 48B that s 48A does not apply. Further, if I affirm the Reviewable Decision, the Applicant would be prevented from applying for any other class of visa without leaving the migration zone, except a Bridging R (Class WR) visa, which he could only apply for in response to an invitation (para 9.1(8) of Direction No 90).
If I affirm the Reviewable Decision, the Applicant cannot be refouled to Sudan because he is afforded the protection against removal offered by s 197C of the Migration Act. He would therefore face the prospect of indefinite detention which I consider below as a separate other consideration.
It would be a possibility, however, that the Minister could consider other options, including removal to a third country, or exercising personal discretion under s 195A of the Migration Act to grant another visa or to exercise personal discretion to make a residence determination under s 197AB of the Migration Act (see para 9.1(3) of Direction No 90). However, with respect to the current application, Mr Gerrard confirmed at the hearing that the Minister was not currently considering exercising these non-compellable powers.
Paragraph 9.1(2) of Direction No 90, requires me to weigh Australia’s non-refoulement obligations against the seriousness of the Applicant’s offending. I note the recent decision of Colvin J in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 that indefinite detention is not to be included as part of this weighing exercise:
15However, para 9.1(2) of the Direction (quoted above) does not require the legal and practical consequences of prolonged detention with no fixed chronological end point to be weighed against the seriousness of the applicant's criminal offending and other serious conduct.
16The Minister concedes that it was irrational or illogical for the Tribunal to reason that para 9.1(2) of the Direction required the Tribunal to weigh the prospect of the applicant facing indefinite detention against the seriousness of his criminal offending and other serious conduct where the Direction imposed no such requirement. It concerned the weighing of the non-refoulement obligation which was a separate matter to the prospect of prolonged and indefinite detention. I accept the correctness of that concession.
Due to this guidance, I have considered indefinite detention as a separate other consideration.
With respect to para 9.1(2) of Direction No 90, I evaluated the seriousness of the Applicant’s offending conduct in detail above under the nature and seriousness of the conduct part of the first primary consideration. In short, the Applicant has committed acts of violence, including violence against members of the public and family violence, which should be viewed as very serious. Above, I assessed the nature and seriousness of the Applicant’s conduct as weighing strongly against revocation of the Cancellation Decision. However, Australia owes non-refoulement obligations to the Applicant and a protection finding has been made. These are serious and substantial international obligations because the Applicant faces a real risk of harm if returned to Sudan. However, they should be viewed in the context that the Applicant will not be refouled to face harm in Sudan whilst the protection findings regarding the Applicant for that country remain on foot.
Balancing the existence of non-refoulement obligations concerning the Applicant, I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 28 years of age. His management and placement report performed by corrective services on 18 September 2019 states that there were no records found of any medical conditions and stated that he had no current medical alerts (R2/340). His parole review report from September 2019 also states he has no psychological or psychiatric issues (R2/374). In his personal circumstances form the Applicant stated that after being in immigration detention for one year he saw a psychologist who had prescribed medication for nerve pain and melatonin to help him with sleep issues (R1/111).
For completeness, I note a medical record from corrective services for a prescription for the antidepressant escitalopram from 7 November 2020, but it was for a different prisoner with a similar offender ID to the Applicant (R2/315).
The Respondent accepts that the Applicant would be likely to face hardship if he was removed to Sudan. He came to Australia with members of his extended family when he was 12 years of age. As the Applicant has spent the entirety of his teenage years and adulthood in Australia, Sudan is a foreign country to him. He is likely to experience significant language and cultural issues if removed to Sudan. He also has no family or friends he can rely upon as a support network in Sudan. His father is in Sudan, but the Applicant does not know where he is (transcript/19).
However, as I have discussed above, the Applicant is a person to whom non-refoulement obligations are owed, and while these obligations continue, he cannot be removed to Sudan. I accept the findings of the Migration and Refugee Division of this Tribunal on 11 September 2020 which are relevant to this other consideration. The Member found that (R1/139, paras [26]-[28]):
Although I have not found the applicant to be at any risk as a result of any conflict, tribal or otherwise, in Sudan, I do accept that the applicant lacks any connections, let alone support network in Sudan, and that he has been brought up as a teenager and young adult in Australia and has therefore built roots in this country, notwithstanding his criminal record.
… I am satisfied that he has no real social or familial links with Sudan that could help him navigate what is by now an alien landscape to him. He also has few skills that would allow him to survive, let alone prosper, in Sudan.
Given these circumstances, I accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sudan, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s. 36(2)(aa).
Overall, I find that there are likely to be substantial and insurmountable impediments, both in the short and long term, that the Applicant would face establishing himself in Sudan and maintaining basic living standards. Given these impediments, together with the real chance of harm that the Applicant would face if returned, it would be appropriate to weigh this consideration in the Applicant’s favour.
However, due to the protection finding, the Applicant cannot be removed to Sudan pursuant to s 198 of the Migration Act whilst non-refoulement obligations are owed to him (s 197C(3) of the Migration Act). Consequently, there is no present prospect that the Applicant will be removed to Sudan, and there is no evidence to suggest that the Applicant may request voluntary removal.
For that reason, although I have found that this extent of impediments if removed other consideration weighs in favour of the revocation of the Cancellation Decision, I find that minimal weight should be given to it. Consequently, I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
SM, the Applicant’s ex-partner and the mother of his daughter was the victim of the Phone Stealing offences. She is supportive of the Applicant and thinks he has learned his lesson and that he has changed (transcript/79; Exhibit A2).
SM is anxious for the Applicant to stay in Australia so that he can have a relationship with their daughter. SM does not want their daughter to grow up without a father like she did (R1/89-90). It appears to me that SM has had a difficult time being a young mother who had a baby when she was trying to complete school. She did not receive any help from her own mother, and it was the Applicant who provided emotional support throughout her pregnancy and later looked after their daughter while she was at school.
As I mentioned above, from mid-2018 when their relationship ended, the Applicant saw his daughter less. However, since the Applicant went into immigration detention he and SM have been communicating and they have made plans to co-parent their daughter (transcript/76 and 78; R1/117). She said that “it’s just been really hard” without having the Applicant to help her, and that when she thinks about him being released into the community, “it just feels like a big relief” (transcript/78-79).
I find that revocation of the Cancellation Decision is in the best interests of SM. She has experienced hardship as a young single mother and wants her daughter to grow up with a father. She would benefit from the Applicant’s assistance in parenting their daughter. Consequently, I find that this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As I mentioned above, the Applicant arrived in Australia as a young child when he was 12 years of age. He has therefore resided in Australia for approximately 16 years, including all his teenage and adult years.
Although the Applicant arrived in Australia as a 12-year-old child, he started offending as a juvenile from the age of 16.
He has a long history of offending and has spent a not insubstantial part of his adult years in prison and immigration detention. His employment history is minimal and apart from helping to look after his daughter, he has made minimal, if any, positive contributions, to the community.
Therefore, these factors diminish the weight to be given to the Applicant’s time in the Australian community and the fact that he came here as a young child.
The Applicant does, however, have strong ties to Australia because all his immediate family members reside here. These family members include his aunt (whom he refers to as his stepmother), his aunt’s husband, and nine cousins (whom he refers to as his brothers and sisters), including LB who gave evidence at the hearing (see also R1/118). The Applicant’s evidence was that all his family members have citizenship, except for him (transcript/91). He also has an uncle and at least two cousins (R1/80), one of whom, HL, has written a letter of support for him (R1/86).
LB is anxious for the Applicant to stay in Australia. She stated, “[g]ive him that chance to also be with the family as he is the oldest brother”. She further stated that “[i]t breaks my heart that he can’t be here with us” and “[o]ur family need him home. We miss him and love him” (R1/118). At the hearing, LB’s evidence was that it would cause her “emotional like pain” if the Applicant was not released from immigration detention. She further stated that it “doesn’t feel like the family is complete if he’s not there” (transcript/83-84). LB also gave evidence that not having the Applicant around to help has been difficult and that he would be able to help provide financial support for her mother (the Applicant’s aunt whom he calls his stepmother) and to help with raising his minor siblings (who are his cousins).
The Applicant’s former partner, SM and minor daughter are also in Australia. I have discussed their interests above under the primary consideration concerning minor children and the other consideration of the impact on victims.
As the Applicant is owed non-refoulement obligations, and indefinite detention is the most likely outcome, it is likely that his family members will suffer emotional detriment if the Applicant remains in immigration detention.
I find that the Applicant has strong ties to Australia because all his immediate family members, as well as his ex-partner and daughter, are in Australia.
On balance, I find that paragraph 9.4.1 of Direction No 90, being the strength, nature, and duration of the Applicant’s ties to Australia, weighs moderately to strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Indefinite detention
If I affirm the Reviewable Decision, the Applicant faces the prospect or prolonged or indefinite detention (that is, detention with no chronological fixed end point), in circumstances which include the following:
(a)The Applicant cannot be refouled to Sudan because he is owed protection obligations and is consequently afforded protection against removal by s 197C of the Migration Act. This raises the prospect of indefinite detention.
(b)As I mentioned above, the Applicant’s protection visa application was remitted to the Department. Depending on how long the consideration of the Applicant’s protection visa remittal might take, the Applicant will be detained in immigration detention for an indefinite period.
(c)If I affirm the Reviewable Decision and the Applicant’s matter is referred to the Minister to consider the exercise of the Minister’s non-compellable powers, the Applicant faces the prospect of detention for an indefinite or uncertain period whilst the matter is prepared for referral to the Minister, and whilst the Minister considers whether to exercise any of those non-compellable powers (which, as I have outlined above, include removal to a third country, granting the Applicant another visa or making a residence determination).
I find that the prospect of indefinite detention weighs strongly in favour of the revocation of the Cancellation Decision.
the weighing exercise
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 90. These were:
(a)The protection of the Australian community primary consideration weighed strongly against the revocation of the Cancellation Decision.
(b)The family violence primary consideration also weighed strongly against the revocation of the Cancellation Decision.
(c)With respect to the best interests of minor children:
(i)the best interests of the Applicant’s five-year-old daughter, N, weighed strongly in favour of revocation of the Cancellation Decision;
(ii)the best interests of the Applicant’s five minor cousins (who he calls siblings) aged from primary-school age to 16 or 17 years old, weighed moderately in favour of the revocation of the Cancellation Decision;
(iii)the best interests of the Applicant’s one year old brother (who is his biological cousin) weighs slightly in favour of the revocation of the Cancellation Decision;
(iv)there was insufficient evidence to make a finding about the best interests of his other minor nieces and nephews, and so I have treated their interests as being neutral; and
(v)the Applicant is no longer in a relationship with his previous partner, AC, and no longer sees her children, and so I concluded that their interests would not be affected by this decision.
(d)The expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)International non-refoulement obligations weighed slightly in favour of the revocation of the Cancellation Decision.
(b)The extent of impediments if removed weighed slightly in favour of the revocation of the Cancellation Decision.
(c)The impact on victims, namely the Applicant’s former partner, SM weighed moderately in favour of the revocation of the Cancellation Decision.
(d)The Applicant’s links to the Australian community weighed moderately to strongly in favour of the revocation of the Cancellation Decision.
(e)The prospect of indefinite detention weighed strongly in favour of the revocation of the Cancellation Decision.
I find that the primary considerations that weigh strongly against the revocation of the Cancellation Decision outweigh the primary and other considerations that weigh in the Applicant’s favour.
Specifically, the best interests of minor children (particularly the best interests of Applicant’s five-year-old daughter which weighed strongly, and his minor cousins which weighed moderately), Australia’s international non-refoulement obligations (which weighed slightly), the Applicant’s links to the Australian community (which weighed moderately to strongly), the extent of impediments if removed (which weighed slightly), impact on victims (which weighed moderately) and the prospect of indefinite detention (which weighed strongly) in favour of revocation of the Cancellation Decision. However, I find that they are outweighed by the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community which all weighed strongly against the revocation of the Cancellation Decision.
In other words, the primary and other considerations that weigh in favour of revocation of the Cancellation Decision are not significant enough reasons which carry significant weight, so that I am satisfied that the Cancellation Decision should be revoked (Viane). That is, there is not another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
Decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 7 June 2022, is affirmed.
I certify that the preceding 226 (two hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.........[Sgd]............................................................
Associate
Dated: 30 August 2022
Date of hearing: 11 August 2022 Representative for the Applicant: Self-represented Representative for the Respondent:
Mr A Gerrard, The Australian Government Solicitor
3
4
0