JXVH and Minister for Immigration, Multicultural Affairs and Citizenship
[2013] AATA 550
[2013] AATA 550
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2405
Re
JXVH
APPLICANT
And
Minister for Immigration, Multicultural Affairs and Citizenship
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 6 August 2013 Place Sydney The Tribunal sets aside the decision under review and in substitution, decides not to exercise the power conferred by s501 of the Migration Act 1958 (Cth to refuse to grant a protection visa to the applicant.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
MIGRATION — Visa application — Protections visa — Character test failed — Ministerial Direction No. 55 — Nature and seriousness of applicant’s criminal history — Drug related offences — Whether the applicant poses an unacceptable risk to the Australian community — Likelihood of reoffending — Breach of previous visa conditions — Vulnerability — International non-refoulement obligations — Refugee Review Tribunal decision that the applicant is a person in respect of whom Australia has protection obligations — Impact of visa refusal on the applicant’s brother — decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) – ss 33(1)(c); 35;
Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501 – paras 6.1; 6.2(1); 6.3; 7.1; 8.1; 8.4; 9.1(1); 9.1(2); 9.1.1(1); 11; 11.1.2(1); 11.1.2(2)(a); 11.3;
Drugs, Poisons and Controlled Substances Act 1981(Vic) – s 73(1)
Evidence Act 1995 (Cth) – s 144
Migration Act 1958 (Cth) – ss 36(2)(aa); 499(2A); 501(2); 501(7)(c); 501K;Migration Regulations 1994 (Cth) – Schedule 8 conditions 8101; 8015
CASES
Poto and Minister for Immigration and Citizenship [2012] AATA 311
Salahuddin v Minister for Immigration & Citizenship [2013] FCA 588SECONDARY MATERIALS
International Convention on Civil and Political Rights – Art 9.1
REASONS FOR DECISION
Senior Member A K Britton
6 August 2013
The applicant is a 23-year-old Chinese citizen who has lived in Australia since November 2007. In June 2012 after completing a 10 month custodial sentence for drug-related offences, he was released on parole and transferred to the Villawood Detention Centre in Sydney where he now awaits the outcome of these proceedings.
On arrival in Australia the applicant was 17 years of age and commenced a course of studies in the NSW Higher School Certificate. He completed but did not pass that course. In April 2010 his application for a further student visa was refused. In 2012 he applied for a Protection (Class XA) visa. That application was refused. In December 2012 the Refugee Review Tribunal remitted that decision to the Minister with the finding that Australia owed protection obligations to the applicant because there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to China, there was a real risk that he would suffer significant harm (s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act)).
The power to refuse to grant a Protection visa may be exercised because the applicant does not pass the “character test” on account of having a “substantial criminal record” (ss 501(2), 501(7)(c) of the Act). It is agreed that the decision of the Refugee Review Tribunal does not preclude the exercise of the power to not grant a visa to the applicant. The sole issue to be decided in these proceedings is whether that power should be exercised in this case. In making that decision “Direction No. 55, Migration Act 1958, Direction under section 499, Visa refusal and cancellation under s 501” (the Direction), must be taken into account (s 499(2A)).
Confidentiality orders
The decision under review relates to the applicant in his capacity as an applicant for a Protection visa and accordingly the Administrative Appeals Tribunal must not publish any information which may identify him, or any of his relatives (s 501K of the Act). With the consent of the parties, I have made orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) restricting the publication of the name of, and any information that might identify, the applicant and his relatives. In addition, having formed the view that identification of other people relevant to these proceedings is likely to disclose the identity of the applicant and/or his relatives, I have decided to restrict the publication of the names of anyone mentioned in these Reasons, apart from persons acting in an official capacity.
Exercising the discretion not to grant a visa
The Direction is binding on decision-makers, including the Tribunal, and sets out the matters that must be taken into account in exercising the power to cancel a person’s visa under s 501 of the Act (s 499(2A)).
The Government’s objectives are set out in the preamble to the Direction:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into and presence in, Australia of non-citizens.
2Under section 501 of the Act, a person may be refused a visa if the person does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
The Direction states 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” (para 6.2(1)) and sets out six principles “of critical importance in furthering that objective” (para 6.2(1)) which must inform the exercise of the discretion (para 7(1)):
6.3 Principles
1Australia 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.
2A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
4Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
6The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Direction lists three primary considerations that must be taken into account, where relevant (paras 7(1)(a) and 8(1)). Two are relevant in this matter:
(a)Protection of the Australian community from criminal or other serious conduct
(b)…
(c)Whether Australia has international non-refoulement obligations to the Applicant.
The Direction also lists a number of “Other Considerations” and instructs that generally primary considerations should be given greater weight (paras 8(1) and 8(4)). One such consideration is relevant in this matter: the impact of a grant of visa on members of the applicant’s family who are in, and have a right to reside indefinitely in, Australia.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian Community
The Direction instructs that when considering the protection of the Australian community, decision-makers should have regard to the principle that (para 9.1(1)):
… [T]he Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Direction instructs that in the assessment of the “protection of the Australian community” consideration be given to (para 9.1(2)):
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(i) The nature and seriousness of the applicant’s conduct to date
The Direction sets out a number of factors that must be taken into account in assessing the seriousness and nature of the criminal offending (at cl 9.1.1(1)):
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
…
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the person's offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
…
On entering a guilty plea the applicant was convicted of one count each of “attempting to possess a drug of dependence” and “possessing a drug of dependence” (s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic)). He was sentenced to 20 months imprisonment with a non-parole period of 10 months. His co-accused received a slightly shorter sentence.
The following summary of the facts of the offence is taken from the judgement on sentencing. The applicant, his co-accused and a third man, YYYY, flew from Sydney to Melbourne for the purpose of collecting a parcel and transporting it to Sydney. The parcel was intercepted by police and found to contain 1,310 grams of pure pseudoephedrine, which is classified as a “drug of dependence” under the Drugs, Poisons and Controlled Substances Act 1981. The applicant testified he had been approached by YYYY and offered $2000 to collect and transport the parcel to Sydney and to recruit a third person to assist in that task.
On sentencing, Stuart J identified five aspects critical to the execution of offence:
1The establishment of a dummy postal address …;
2Contact with the delivery company to ensure collection at the dummy address;
3Arrangement of travel to and accommodation in Melbourne and the return travel of [the co-accused] to Sydney;
4The supervision of [the co-accused] before, during and after the collection of the package at the dummy address, and
5Moving the drugs back to Sydney.
His Honour stated that the role of the co-accused was to act as “gopher” and to protect the applicant and YYYY from being implicated in possession of the drugs. His Honour found that the applicant had a “supervisory and organisational role” in the crime and had been involved in establishing the dummy postal address, payment for the Melbourne accommodation, and supervising the co-accused during the delivery process whilst deliberately distancing himself from the risk of arrest during critical phases of the delivery and return travel process.
In these proceedings the applicant testified that YYYY told him that the package contained cold medication on which tax had not been paid. He said he suspected that the package contained illicit drugs and his suspicions were confirmed when he was told by the police that while the parcel did contain cold medication, that medication was commonly used to manufacture illicit drugs. The applicant claims that after the arrest he has had no contact with, and no knowledge of YYYY. Apart from a reference in the remarks made on sentencing to him being arrested at the same time as the applicant, there is no other available information about YYYY.
The applicant claims this was the first and only time he has been involved in any criminal activity. That claim is uncontradicted and corroborated by the applicant’s brother.
Findings and Conclusions: It is agreed that the offences for which the applicant was convicted are serious in nature. On sentencing, Stuart J commented:
Offences of this kind are difficult to detect and the damage to our social fabric caused by the drug trade are well understood and must be denounced. The consequence must be that general deterrence is of particular importance in this case.
Notably the offence was not just one of using or possessing a drug of dependence but it was a trafficking offence. The fact that the applicant received a custodial sentence notwithstanding that he had no prior convictions and entered an early guilty plea reflects the serious nature of the offences. That is also reflected by the maximum penalty carried by the offence: five years imprisonment and/or a fine of $44,000.
The only available finding is that the applicant’s conduct was extremely serious notwithstanding that it was the only matter for which he has been charged or convicted.
(ii) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The Direction states (para 11):
1In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of nature 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 likelihood that it may be repeated may be unacceptable.
2Decision-makers should also consider whether the purpose of the intended stay reflects strong or compassionate reasons for granting a short-stay visa. In making the risk assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence from independent and authoritative sources on the likelihood of the person re-offending; and
(ii) evidence of any 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); and
(iii) the duration of the intended stay in Australia.
Nature of the harm
It is conceded for the applicant that if he were to reoffend, individuals and/or the community would suffer harm through direct or indirect exposure to illicit drugs of dependence.
The Minister contends that it is a matter of common knowledge that pseudoephedrine is an ingredient used in the manufacture of methamphetamine, more commonly known as Speed and Ice, an illicit drug of dependence, and, by the operation of s 144 of the Evidence Act 1995 (Cth), it is a matter of which the Tribunal is entitled to take into account. Citing in support Salahuddin v Minister for Immigration & Citizenship [2013] FCA 588 (at [38]-[43]), the Minister contends that in order to properly undertake the task required by paras 11.1.2(1) and 11.1.2(2)(a) of the Direction, namely to evaluate the “nature of the harm” should the applicant re-offend, it is necessary to identify the type of illicit drug that uses pseudoephedrine as an ingredient.
The Tribunal is, of course, not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate (s 33(1)(c) of the Administrative Appeals Tribunal Act1975 (Cth)). While I accept that it is a matter of common knowledge that pseudoephedrine is an ingredient used in the manufacture of some illicit drugs, I do not accept that it is a matter of common knowledge that it is an ingredient used to manufacture the particular drug, methamphetamine. More to the point, I do not agree that it is necessary to decide what type of illicit drugs pseudoephedrine is used to produce, to undertake an evaluation of the “nature of the harm” if the applicant were to re-offend.
The Minister’s argument assumes that it is not possible to make a proper assessment about the nature of the harm unless that drug is identified. I do not agree that para 11.1.2(2) of the Direction should be construed as requiring a finding of that degree of specificity. In my opinion it is sufficient to make a more general finding about the nature of the harm such as the observation made by Stuart J, when on sentencing the applicant he commented that the damage to our “social fabric” from the drug trade is “well understood”. In my opinion there can there can be no argument that illicit drugs of dependence can have devastating social, economic and health consequences, not just on drug consumers, but their families, associates and the community at large.
A further flaw in the Minister’s argument is that it presupposes that if the applicant were to re-offend it would be only be in relation to the trafficking of pseudoephedrine and that the assessment of the nature of the harm should be made on that basis. In my opinion that is an overly narrow interpretation and, rather, the question posed by the Direction is — what is likely to be the nature of the harm to individuals and/or the community if the applicant were to again be involved in trafficking an illicit drug of dependence?
Likelihood of reoffending
Information and evidence from independent and authoritative sources on applicant on risk of reoffending
Pre-sentence assessment
At the request of his solicitors, the applicant was assessed by clinical psychologist, Stephen Gault, prior to sentencing. In a report dated 20 March 2012, Mr Gault wrote that during the interview the applicant expressed regret for his offending and acknowledged that what he had done was wrong. Mr Gault concluded that the applicant did not meet the criteria for diagnosis of a mental disorder nor did he suffer from any significant cognitive impairment. While he considered the applicant’s intellectual level to be “below average”, in his opinion the applicant was nonetheless able to comprehend the nature or wrongfulness of the offences for which he had been charged.
Mr Gault did not offer an opinion about the applicant’s risk of reoffending.
VISAT assessments
In May 2012 Corrections Victoria assessed the applicant using the Victorian Intervention Assessment Tool (VISAT), an actuarial tool used to predict recidivism rates among known offenders. The VISAT examines static risk factors (such as the offender’s age, offending history etc.) — and dynamic risk factors (such as social integration, education and employment history). Two separate assessments were conducted. Each rated the applicant’s risk of reoffending as “moderate” from three possible scores: low, moderate and high.
At the request of the Minister both assessments were reviewed by Megan McClelland, a senior officer with responsibility for oversight of the use of VISAT within the Victorian Department of Justice. Ms McClelland was of the opinion that both assessments appeared to have been completed in accordance with Corrections Victoria’s policy and that the conclusions reached in each appeared sound. She attributed the differences between the two to the fact that each used a different version of VISAT, one using a shortened screening version, the other the full version of the test.
Under the full version of the test the applicant’s “need” in respect of “social integration” and “family and friends” was rated as moderate, and “education and vocational” rated as high; the screening version rated each of these factors as low. Ms McClelland explained that the reason for this difference was that the screening version of VISAT did not assess these factors and they were automatically awarded a rating of low.
In the report of the screening version the applicant is recorded as saying that the subject offence occurred in the context of him going to Melbourne for a “break”, accompanying a friend to pick up a parcel, and having no knowledge of its contents. In contrast the report of the second assessment recorded the applicant admitting that he had travelled to Melbourne for the purpose of picking up a parcel, and receiving $2000.
Ms McClelland explained that in the version of VISAT used to assess the applicant, age was a “significant predictive factor” and any male under 27 years of age would be assessed as posing at least a moderate risk of reoffending. She explained that under the current version of VISAT, introduced in early 2013, age was no longer a significant predictive factor and if the applicant were now to be assessed, his risk of re-offending would be low.
Evidence of rehabilitation
A file note made by an officer of Corrections Victoria, dated 18 January 2012 and apparently prepared following an interview with the applicant, records him as stating that he was “aware of offending behaviour programs but stated that he did not require help or support at this time”. A file note made two months later recorded the applicant as stating he was “prepared to work and do programs”. The note recorded “general risk of reoffending nil”.
While in custody and detention, the applicant has undertaken and completed numerous vocational and language courses. His conduct in prison and immigration detention is reported to be exemplary.
Reason for the offending
The applicant testified that at the time of the offence he was “really struggling” to meet his expenses and too embarrassed to ask his parents or elder brother (the brother), who had been living in Australia since early 2005, for support. He said he also felt under a “moral obligation” to make some contribution towards the significant costs incurred by his parents of funding his education in Australia.
His evidence given in these proceedings indicates that when approached by YYYY, the applicant’s financial position was not straitened — while his income was modest so too were his living expenses. On questioning, he agreed that he saw the offer made by YYYY as an opportunity to make easy money.
Remorse
The applicant testified he was extremely remorseful for his actions and the shame it had brought to his family. His brother stated that the applicant told him that he deeply regrets his actions and feels he brought great shame on his family. The brother testified that on learning of his crime, his parents were extremely angry and initially disowned the applicant.
Stuart J found that the applicant was remorseful as did Mr Gault.
Credit
The Minister contends that some of the evidence given by the applicant to the Refugee Review Tribunal was untruthful and this raises question as to the reliability of the evidence he gave in these proceedings.
In a statement prepared for these proceedings, the applicant stated that following a brutal attack by a fellow student, which resulted in him being hospitalised for a couple of months, he was too frightened to return to school and stayed at home until he left for Australia the following year. In oral evidence he said that the attack occurred about 10 days after the commencement of the school year in September 2006.
Attached to the applicant’s application for a student visa lodged with the Department in June 2007 was a copy of a certificate issued by the “Light Industry School”. Dated 3 April 2007, it states that the applicant was enrolled in the first year of a three-year technical course. Also attached to the application was a copy of the applicant’s student record which records the marks awarded to the applicant for subjects apparently undertaken in term one of the 2006/2007 school year.
When asked in these proceedings to explain the apparent discrepancy between these documents and his claim of not returning to school after September 2006, the applicant initially suggested that the documents might have related to his junior school results. He later suggested that the documents might have been false and that they were obtained by the agent who made the application on his behalf for a student visa.
Breach of visa conditions
The Minster contends that the evidence of the applicant breaching his visa conditions also raises questions about his credit.
A condition of the student visa held by the applicant on his arrival in Australia was that he not engage in work (condition 8101 to Schedule 8 to the Migration Regulations 1994 (Cth)). On 25 May 2008 he applied for, and was granted, a variation of that condition and as a consequence was permitted to work up to 20 hours per week while his course of study was in session (condition 8105 to Schedule 8 to the Migration Regulations 1994 (Cth)). Between March 2010 and September 2011 the applicant held a bridging visa which was granted subject to the same condition.
The applicant testified that when he first arrived in Australia he undertook a six-month language course and worked in the mornings. He admitted in these proceedings that a couple of days after commencing that course he was told by fellow students that the approval of the Department was needed to lawfully work in Australia.
While not entirely clear when the applicant commenced work, I am satisfied that he had been working on a part-time basis for some time prior to seeking approval from the Department of Immigration to vary the condition of his visa which barred him from undertaking employment. I am also satisfied that during the period he was permitted to work up to 20 hours per week, he sometimes worked in excess of those hours.
Post-release plans
The applicant’s brother testified that if the applicant is released from detention he will take an active role in supporting and assisting him find employment. He stated that he is renting an apartment in Sydney and that on release the applicant will join him and is welcome to stay indefinitely. The brother also stated that if the applicant were to reoffend, which he is confident will not happen, he will “cut him off” and have nothing further to do with him.
Protection of the Australian community: findings and conclusions
The primary consideration — “protection of the Australian community” — requires an evaluation of the nature and seriousness of the applicant’s conduct and the risk to the Australian community should he reoffend. The latter in turn requires a two-step assessment — first, an evaluation of the nature of the harm to individuals and/or the community should the applicant reoffend and second, an assessment of the likelihood of him reoffending. That evaluation must be undertaken in light of the principles set out in the Direction. The Direction emphasises the Government’s commitment “to protecting the Australian community from harm as a result of criminal activity … by non-citizens” and states that a non-citizen who has committed a serious offence should generally expect to be denied the privilege of coming to Australia (para 6.3(3) of the Direction).
While not suggested that the offences for which the applicant was sentenced are “so serious, that any risk of similar conduct in the future is unacceptable”, there can be no argument that they are serious in nature (para 6.3(3) of the Direction).
The Minister conceded that the risk of the applicant reoffending if he were to be granted a visa is not high, but argues it is real and that it is plausible that he will once again offend. The Minister contends that those factors which go some way to explaining what led the applicant to offend, which include: his vulnerability — commented upon by the sentencing judge, the Refugee Review Tribunal, and others; coupled with his limited English and employment prospects, will continue to exist on his release from detention. Further, the Minister contends that the applicant’s statement of remorse needs to be treated with a degree of circumspection. The Minister argues that the applicant’s claim of being committed to not reoffend should also be treated with some caution given his conduct of providing false information about when he stopped attending school in China and his failure to comply with the conditions of his visa. The Minister also submits that there is a real question as to the brother’s capacity to undertake a supervisory and protective role, given his apparent lack of contact with the applicant after moving to Queensland in 2010.
The applicant has not provided a satisfactory explanation for the apparent inconsistency between the claim made in these proceedings and that made before the Refugee Review Tribunal, of not returning to school after being attacked, and the certificates issued by his school which suggest otherwise. Whichever of these irreconcilable accounts is true, they indicate that the applicant has been prepared to provide an untruthful account for the purpose of gain. I accept that this evidence coupled with the evidence of him knowingly working in breach of his visa conditions requires that a cautious approach be taken to the assessment of his evidence especially where it is unsupported and/or contradicted.
In my opinion the following factors reduce that the risk of the applicant reoffending.
First, the absence of any criminal history. There is no evidence to suggest that the applicant has been involved in any criminal activity either in China or Australia, apart from the subject offence.
Second, his remorse for, and acknowledgement of, his crime. As the Minister points out there is some evidence which suggests that the applicant does not acknowledge the part he played in the offence. I think however that the weight of evidence suggests otherwise. That finding is consistent with his actions in entering an early plea, the history given to Mr Gault in 2012, his evidence given in these proceedings and the history recorded in the full version of the VISAT report.
Third, the support he is likely to receive from his brother if permitted to remain in Australia. I am satisfied that if the applicant were to be granted a visa he will receive significant support from his brother. The brother’s evidence reveals that he feels a deep sense of shame for not taking a more active role in supporting his brother. I am satisfied that the brother is committed to do everything in his power to ensure that the applicant does not reoffend and recognises that the provision of stable accommodation and employment are critical to achieving this end.
Fourth, the applicant’s conduct in custody and the evidence of him actively engaging in employment and education is consistent with his claim that he is committed to building a new life on release.
Fifth, the strong likelihood that he will be disowned by his brother and parents if he were to reoffend.
Against these factors are a number which in my opinion indicate that the risk of reoffending is real. These include the applicant’s vulnerability — commented upon by the sentencing judge and the Refugee Review Tribunal; his limited income earning ability on account of his lack of English proficiency and limited education and employment skills; his sense of obligation to repay his parents for funding his education in Australia.
In my opinion the VISAT assessments provide limited assistance in the assessment of the applicant’s risk of recidivism. The arbitrary nature of these assessments is demonstrated by the fact that were it not for the applicant’s youth he would have been rated a low recidivism risk in the first assessments, and now because of a change in the weighting of risk factors, he would be assessed as a low risk. While not the most powerful evidence these assessments are broadly supportive of the applicant’s claim of being unlikely to reoffend.
The Direction instructs the duration of the applicant’s stay in Australia must also be taken into account in undertaking the assessment of the risk of the applicant reoffending (para 11.1.2(2)(b)(iii) of the Direction). The applicant has indicated that if granted a protection visa he intends to remain in Australia indefinitely. Because this is likely to be a significant period it is arguable that this increases the applicant’s risk of reoffending.
It goes without saying that the task of predicting whether a person will reoffend is difficult and does not lend to objective measurement. As commented upon in Poto and Minister for Immigration and Citizenship [2012] AATA 311 at [27] the task of charactering that risk “involves an impressionistic assessment of the probability of re-offending conduct, regard to the available evidence of rehabilitation, and an appropriate reservation about the accuracy with which any such assessment can be made”.
It does not necessarily follow that because of the factors that I have characterised as protective against further offending, that the applicant will not reoffend. Similarly it is not inevitable that he will reoffend because of the risk factors identified by the Minister. The task is far more complex. Of those factors protective against further offending I place significant weight on the applicant’s acceptance that it is highly likely, if not inevitable that he will be disowned by his family, if he were to re-offend. I accept that he would be devastated if this were to occur. In my opinion this knowledge is very likely to act as a powerful deterrent. Having carefully examined all of the evidence I have formed the opinion that that while that risk of the applicant reoffending is real, it is not significant and can best be characterised as low.
As noted the evaluation of the risk to the Australian community requires consideration to be given to both the “nature of the harm” that may result if the applicant were to reoffend and the likelihood that he will reoffend. As stated there can be no argument that the potential harm that might result to the community and individuals through the trafficking of illicit drugs is serious both because of the large number of people potentially affected and the wide ranging types of harm they may suffer.
While I am satisfied that the risk of the applicant reoffending is low, given the serious nature of the offences he has committed together with the serious nature of the harm that might befall individuals and the community if he were to reoffend, the consideration of the protection of the Australian community weighs against granting a protection visa to the applicant.
PRIMARY CONSIDERATION 3: INTERNATIONAL NON-REFOULMENT OBLIGATIONS TO THE APPLICANT
The third primary consideration requires the Tribunal to take into account whether “Australia has international non-refoulement obligations” to the applicant (para 11.3). It is agreed that as a consequence of the decision made by the Refugee Review Tribunal, those obligations are enlivened. It is also agreed that the existence of that obligation does not preclude refusal of a visa to the applicant (para 11.3(2)). The Direction explains:
[T]his is because Australia will not necessarily remove a person, as a consequence of refusing to grant them a visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person's criminal offending or other serious conduct in deciding whether or not the person's visa application should be refused.
The parties agree that as a consequence of the decision made by the Refugee Review Tribunal it would not be open to the Minster to return the applicant to China. They agree that if the Minister’s decision to refuse to grant a Protection visa is affirmed, a number of possible scenarios could follow.
First, the applicant could be subject to indefinite detention within Australia. The applicant contends that this would breach Australia’s obligations, specifically Article 9(1) of the International Convention on Civil and Political Rights.
Second, the applicant could be sent to a third country providing that action would not infringe Australia’s non-refoulement obligations and that county was willing to accept him. The applicant contends that this option is “highly speculative” and points out that to date no third country has been identified that is willing or obliged to accept him. I agree it appears unlikely that a third country could be found.
Third, the applicant could be granted a temporary visa and permitted to remain in Australia indefinitely unless otherwise decided.
The Minister suggests a fourth possible scenario: the applicant’s return to China in the event that the perpetrator of the attacks against him — which led the Refugee Review Tribunal to conclude that he was in need of protection — dies, leaves China, or is found to no longer pose a risk of significant harm to the applicant.
The parties agree that this Consideration assists the applicant. The issue between them is whether it is outweighed by other Considerations, and, in particular, the only other applicable Primary Consideration: the protection of the Australian community.
Other considerations: impact on immediate family members
The applicant’s elder brother is his sole immediate family member in Australia. The brother is a permanent resident and has been living in Australia since February 2005.
The applicant lived with his brother after arriving in Australia until his brother moved to Queensland for work reasons in 2010. According to the brother, after learning the applicant had been arrested he resigned from his job and returned to Sydney to be closer to him (the applicant was then incarcerated in Victoria). The brother claimed that he drove to Melbourne on three occasions to visit the applicant, and since his transfer to immigration detention in Sydney, visits him on a regular basis.
The brother claims that it is a source of great shame to him that the applicant committed a criminal offence while under his care. He feels he has let down his parents. He also claims that he is committed to supporting the applicant and assisting him to commence a new life. He stated that he is very worried about what the future might hold for the applicant if his application for a protection visa is refused.
The task of assessing the impact on the brother is difficult given that it is not possible to predict with any certainty what would happen to the applicant if his visa were to be refused. The brother’s testimony reveals that he holds the mistaken belief that deportation to China is a possible option.
I am satisfied that if the applicant were to be detained indefinitely this would impact heavily on the brother. If however the applicant were to be issued a temporary visa(s), the impact of visa refusal would be less severe, notwithstanding the attendant uncertainty. The impact of removal to a third country, which in my opinion is probably the least likely scenario, is difficult to predict and would turn in part on the feasibility of the brothers maintaining contact.
There can be no argument that the applicant and his brother enjoy a close relationship. The brother, however, is neither emotionally nor financially dependent on the applicant. This factor assists the applicant but not to the extent it might if the brother were dependent upon him.
SHOULD THE POWER NOT TO GRANT THE VISA BE EXERCISED?
In exercising the power to refuse to grant a visa I must take into account any relevant Considerations and make a determination about whether the risk of further harm to the Australian community by the applicant is “unacceptable”. That decision is required to be informed by, among other things, the principles contained in the Direction, which include the proposition that coming to Australia is a privilege, and, a non-citizen who has committed a serious crime should generally expect to be denied that privilege. The Direction explains that different considerations apply to visa holders and visa applicants in recognition that “persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved” (para 8(1) of the Direction).
The Direction consistently emphasises Australia’s “low tolerance” for applicants who have previously engaged in criminal conduct (para 11.1 (1) of the Direction).
The Direction instructs that in exercising the power to refuse to grant a visa I must take into account any relevant Consideration and determine whether the risk of future harm by the applicant is “unacceptable”, and conduct a “balancing exercise”. As the Tribunal (Justice Downes, President, and Senior Member McCabe) observed in Re VisaCancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49]:
The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations — and without forgetting other considerations that are generally regarded as being of lesser weight — we must ask ourselves: what is the preferable decision in this case?
While these comments were made in relation to a decision to cancel a visa made under the predecessor to the current Direction, the task, and its inherent difficulty, is the same.
In this case there are only three relevant Considerations: the protection of the Australian community, the existence of international non-refoulement obligations and the impact visa refusal will have on the applicant’s brother. The Direction instructs that of these the latter should generally be afforded less weight.
As the Minister correctly points out a decision to refuse to grant the applicant a protection visa will not mean that Australia will be in breach of its international obligations. This is because even if that decision were made it would be unlawful for the applicant to be deported to China or any other country, if that were to involve infringing Australia’s non-refoulement obligations. As the Minister points out, if the decision under review is affirmed a number of options would be available, including indefinite detention in Australia, or, his return to China if at some later date it were found that he were no longer at risk of harm.
While I accept that the applicant would not be returned to China if not granted a protection visa it does not follow that he is not assisted by this Consideration. Rather, the issue is whether in combination with the impact of visa refusal on his brother, which as I have noted favours the applicant but not to any great extent, these Considerations outweigh that of the protection of the Australian community.
There can be no argument that the offences the applicant committed were serious in nature. Similarly the type of harm that would fall on the Australian community and/or individuals if he were to reoffend is likely to be both serious and far-reaching. As a visa applicant, the applicant is not entitled to the greater tolerance that might be afforded to a visa holder who for example had lived in Australia from a young age. The finding that the applicant poses a low risk of re-offending, while not determinative in this case, has led me to conclude that the risk of future harm posed by the applicant is not “unacceptable”.
A finding that the risk of harm posed by the applicant is not “unacceptable” is not determinative of the issue of whether the power to not issue the visa should be exercised. The balancing exercise contemplated by the Direction remains to be undertaken. While not the most compelling case I am satisfied that those Considerations that favour the applicant outweigh the primary Consideration of the protection of the Australian community.
For the reasons set out above I have decided that the preferable decision is to set aside the decision under review and in substitution, I decide not to exercise the power conferred by s 501 of the Act to refuse to grant a protection visa to the applicant..
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton
..................[SGD]......................................................
Associate
Dated 9 July 2013
Date(s) of hearing 22 and 23 July 2013 Date final submissions received 2 August 2013 Solicitors for the Applicant Refugee Advice and Casework Service Solicitors for the Respondent DLA Piper Australia
0
3
0