Kapanadze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2749
•18 August 2022
Kapanadze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2749 (18 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4422
Re:Murad Kapanadze
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 August 2022
Place:Sydney
The decision under review is affirmed.
.......................................[sgd].................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – expectations of the Australian community – non-refoulement – impediments to removal – links to the Australian community – decision affirmed
LEGISLATION
Crimes Act 1900 (NSW) s 195
Crimes (Sentencing Procedure) Act 1999 (NSW) s 9
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ali and Minister for Home Affairs [2018] AATA 2512
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1431
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Matthews v Minister for Home Affairs [2020] FCAFC 146
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
PlaintiffM1/2021 v Minister for Home Affairs [2022] HCA 17
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Slynt v Slynt [2017] FamCA 812
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90
Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
G E Tbilisi, 'Lessons from Georgia's fight against graft', The Economist (online, 7 February 2012) < Bank Group, 'Georgia's Fight Against Corruption in Public Services Wins Praise' (Press Release, World Bank Group, 31 January 2012)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 August 2022
On 21 August 2015 the Applicant was convicted of several offences which resulted in him receiving a custodial sentence of nine years and four months with a non-parole period of seven years. Appeals against both the conviction and the particular sentence imposed were dismissed by the NSW Court of Criminal Appeal on 13 April 2017.[1]
[1] G-documents at 34-54. Due to the sensitive nature of the offences and the need to protect personal privacy, reference will be made only to “the Victim” the “victim’s Sister” and “the victim’s Mother” in these reasons.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[2] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[2] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, of which the Applicant was notified on 21 March 2019.
As provided for under the Act, the Applicant was invited to make “representations” on the revocation of the cancellation decision. The Applicant then provided a Personal Circumstances Form on 29 March 2019 which was taken as his “representations”.[3] After consideration, on 30 May 2022 a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa.[4]
[3] G-documents at 59.
[4] Act s 501CA(4).
On 1 June 2022 the Applicant then applied to this Tribunal for a review of that decision. The hearing was conducted on 9 August 2022 in-person. The Applicant was self-represented but was provided with the assistance of an interpreter in the Russian language. The Applicant was born in April 1961 in Akhaltsikhe which, at the time was in the Georgian Soviet Socialist Republic then being part of the Union of Soviet Socialist Republics (USSR). In April 1991 following the collapse of the USSR, Georgia became an independent republic.
The Tribunal was not able to provide an accredited interpreter in the Georgian language which is the Applicant’s original language but is satisfied that he was able to understand and participate fully in the Tribunal’s proceedings.[5] His clearly written submissions indicate a degree comprehension of the English language.
[5] The Applicant in correspondence with the Tribunal prior to hearing confirmed that it was his experience that no accredited Georgian interpreters were ever available and therefore was happy with a Russian interpreter. This Tribunal also notes that in prior directions hearings in this matter, the Applicant was similarly assisted by a Russian interpreter.
Under paragraph 500(6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance that date is 23 August 2022.
THE BASIS OF ANY REVIEW
The Act provides that where a non-citizen fails the character test, their visa is subject to mandatory cancellation. As already noted, the imposition of a term of imprisonment of more than 12 months is taken to establish that the character test has been failed (s 501(3A)). However they may also automatically fail the character test if they have committed certain other offences, including sexual offences against a child (s 501(6)(e)) even if they have not received a custodial sentence.
Once a visa has been cancelled because of a failure to meet the character test, it may be reinstated (the cancellation decision may be revoked) if there is “another reason” to do so (s 501CA(4)(b)(ii)).
THE APPLICANT’S VISA STATUS
The Applicant arrived in Australia on 1 July 1998 apparently holding a Tourist (TR-676) visa.[6] On 22 December 1998 he lodged an application for a Protection Visa (Class XA) which was refused on 4 February 1999.[7] The Applicant applied to the Refugee Review Tribunal (RRT) (10 September 1999) for a review of that refusal decision but the RRT affirmed the refusal (6 April 2005).[8]
[6] Second Supplementary G-documents at 449-451.
[7] G-documents at 349.
[8] Ibid at 348-369.
On 8 January 2010 the Applicant applied for a Partner (Residence) (Class BS) visa with sponsorship from an Australian resident whom he had married in September 2008. On 27 April 2012 the Partner (Residence) visa was granted.
On 28 February 2014, following receipt of certain information from the Applicant’s sponsor/wife, the Department notified the Applicant of the fact that the Minister was considering the cancellation of his visa under section 109 of the Act, which relates to non-compliance with any prescribed conditions attached to a visa.[9] The Applicant provided further information to the Department as a result and, after consideration of that information the Minister decided (on 27 May 2014) not to cancel the visa on the grounds that while he had not complied with certain conditions, “it is likely that the non-compliance would not have been material to the decision to grant a visa.”[10]
THE APPLICANT’S PERSONAL NARRATIVE[11]
[9] Ibid at 341.
[10] Ibid at 346.
[11] Summons Bundle at 162-166.
As noted, the Applicant was born in Georgia in what was then the USSR. He had a stable family upbringing there with two brothers and one sister. He served in the Soviet Army before studying in a local technical college where he gained various qualifications which allowed him to work in the construction industry. He married in 1982 and had a son and a daughter, although he also lost a son who died aged six months. He states that his life and business was ruined by the Russian invasion of Georgia in order to support militant separatists[12] and that he lost several relatives as a result of this Russian invasion. Both his parents died, his mother in April 2014, and he divorced his wife who retained custody of the children, then aged 14 and 12 years. He goes on to say that he has not seen his children since he left Georgia but that he understands that his son is now a practising lawyer; his daughter a music teacher and that each has children of their own. Although he has not seen them since he left, he makes clear in his Personal Circumstances Form that he is in weekly contact with his son and daughter by telephone and that he has “a good relationship with both… children”.[13]
[12] In Abkhazia and South Ossetia.
[13] G-documents at 70.
On arrival in Australia (in 1998 aged 37 years) he applied unsuccessfully for status as a refugee. In affirming the Minster’s initial refusal of a Protection (refugee) visa the RRT characterised the Applicant’s application as:
“The Applicant's claims in his protection visa application were vague and generalised, citing no significant instances of individual harassment or repression.[14]
…
His evidence about his relationship with the authorities prior to his departure was inconsistent.[15]
[A] baseless application for a protection visa in the first instance, its only substance deriving from the generally undemocratic and authoritarian conditions in Georgia at the time. He made no claims about himself and he certainly provided no basis for concluding that he faced a real chance of Convention-related persecution in Georgia even though its human rights record at the time was not well-regarded.[16]
[T]he evidence supporting his account of his application history is unreliable and inconsistent, and, more importantly, his new claims about the package delivery and the subsequent investigations are implausible, inconsistent, and supported by four documents (Documents 1 to 4) which the Tribunal concludes to be false.[17]
Some of the problems in the Applicant's claims are simply far-fetched in the claimed circumstances…[18]
Other evidence is simply inconsistent…[19]
The Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Georgia. His claimed fear of such persecution is not well-founded. He is not a refugee.”[20]
[14] Ibid at 352.
[15] Ibid at 360.
[16] Ibid at 366-367.
[17] Ibid at 367.
[18] Idem.
[19] Idem.
[20] Ibid at 369.
Once in Australia, he worked repairing machinery on a farm and subsequently as a bricklayer. He made contact with members of the Russian-speaking Christian Evangelic Church in Sydney and volunteered as an assistant to their Pastor. In addition he supported the Church’s efforts in various nursing and aged care homes where he used his skills as both a handyman and as the player of numerous musical instruments.
Having been brought up in the Russian/Georgian Orthodox Church, at some time in 2003 the Applicant converted to identify himself as a member of the Baptist Church.[21]
[21] Idem.
In 2002 he met OZ through the Church in Cabramatta and they were married. OZ had a son AX, who is now an adult. Both mother and son were Australian citizens.[22] This marriage did not last very long, and it was the Applicant’s testimony to the Tribunal that his wife left him, indicating that she would file for divorce. However, he has no papers in his possession to prove that such a divorce actually occurred.
[22] Rev Nikolay Kravtsov’s (Pastor of Russian-Ukrainian Church, Cabramatta) Letter dated 9 March 2005.
In 2008 he commenced a relationship with the victim’s Mother and moved into the family home. The couple were married in September 2008 when the Victim (his stepdaughter) was about 11 years of age.[23] There was also a second (elder) stepdaughter residing in the family house at that time.[24]
[23] Summons Bundle at 68-69.
[24] Ibid at 164.
It appears that this was not a home characterised by domestic tranquillity as the Applicant claims that the Victim resented his presence and began acting in a hostile and disruptive manner. He alleges that the Victim sent him pornographic images, including to his phone and then attempted to blackmail him with threats to report him to the Police. When he stopped giving her money she moved out of the house, although she subsequently returned.
More significantly, the Applicant in his testimony at the Tribunal stated that the “Georgian” way of managing family affairs was “not to forgive children for their mistakes, we punish them” and, as a result he admitted that on two occasions he had slapped the face of the Victim. He went on to say that his wife remonstrated with him and told him, to the effect, “that is not the law in Australia” and that he “could be punished” if he repeated such behaviour. The Applicant told the Tribunal he did not understand the law at the time and would not repeat such behaviour.
However, he described his domestic situation as one in which the Victim regarded him as “an obstacle” preventing her from behaving as she pleased and that, together with her mother they determined to “get me out of the house”.
The Applicant further said that this in turn led his wife to make malicious claims against him and make reports to the Immigration Department which were, in his word “fairytales”.
Disturbingly, in the light of what was found by the Jury, the Applicant claims:
“I never did these things and my care for [Victim] as a step-father and the attention and care I was showing for her for her well-being were normal father-daughter relationship.[25]
[25] Ibid at 165.
His Wife/the victim’s Mother informed the Department that the Applicant moved out of the family house on 16 March 2021 and claims that she never saw him return that house after his date. [26]
[26] G-documents at 342.
THE APPLICANT’S OFFENDING RECORD
The Applicant has been before the Courts on several occasions and convictions have been recorded as follows:
·3 March 1999: maliciously damaging property for which he was fined $150.00[27] Although details of this incident were not explored before the Tribunal, the Applicant in his evidence said that “this was not my problem anyway”;
·15 April 2003: driving with middle-range prescribed content of alcohol (PCA) for which he was fined $800.00 and was disqualified from driving for 6 months. Again the Applicant’s comment to the Tribunal was in relation to this matter that “but it didn’t exactly happen so”;
·7 August 2013: contravention of an Apprehended Violence Order (AVO) for which the Applicant was fined $100.00 and a conditional release order (bond) was made under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months. This included a no contact order.[28] In evidence the Applicant stated that the breach of contact occurred by “accident”;
·21 August 2015: aggravated indecent assault / one count of aggravated sexual assault / two counts of attempted aggravated assault for which he received an aggregate sentence of nine years and four months with a non-parole period of seven years; and
·13 April 2017: the Applicant’s appeal against his latest conviction and the severity of sentence dismissed.
[27] Crimes Act 1900 (NSW) s 195 as provided at the relevant time.
[28] Summons Bundle at 47, 55-56, 94 and 242-243.
Townsend J in the District Court (on 21 August 2015) described the Applicant’s offences as follows:[29]
In respect to count 1 on the indictment, in October 2011 the victim, then aged 14 years, and the Offender were coming back… after having gone to the chemist. Her mother was at home at the time. At the time the Offender was driving a Toyota Camry and they had gone to the chemist so she could get some cream for her face. Whilst on the journey home the Offender stopped the car and told the victim to sit in the back seat. He also got into the back of the car whereupon he inserted his penis into her anus. The victim felt that the incident lasted approximately half an hour. At the time the victim told the Offender to stop. After the incident the victim felt in shock and had a shower when she later arrived home.
In respect of counts 2, 3 and 4, the victim then aged 15 years was at home alone… She had finished having a shower and was wearing only a towel. The Offender arrived home and made her show him her behind. She dropped the towel and the Offender asked that she show her front as well. She described the offender as playing with himself at the time. The victim said no and the Offender became very aggressive. She commenced walking out to the lounge room. The Offender pushed her onto the couch and was on top of her pushing against her. The towel slipped off. The victim screamed and said: “Let me go, get off me, I can’t breathe”. At the time the victim described the Offender as grinding against her. The Offender attempted to open her legs. She recalled the Offender as managing to get his underwear off. At one stage she fell to the ground and the Offender got back onto the couch.
During the incident the Offender placed his hand over her mouth when someone had walked past the house. The Offender felt her breast, being count 2, whilst they were on the lounge, and she described him as attempting to put his penis into her. The Offender attempted to insert his penis into her vagina, being count 3, and her bottom, count 4. At the time the victim used her hands to stop the Offender from doing so. Eventually the Offender desisted and the victim ran into the bathroom and locked the door. He shouted out to her to open the door. She did not respond and she turned on the shower and later heard the Offender slam the door and leave the house.
The offences were not isolated acts. The victim described being sexually assaulted by the Offender on numerous occasions where he would insert his penis into her anus during the period between the first incident being count 1 and the indictment and the last incident being counts 2, 3 and 4 on the indictment. The victim also sent, at the Offender’s request, nude photographs purporting to be of herself to the Offender, although she had in fact found the images on the internet.
Prior to the last incident, she had responded to a text message sent by her sister… where she had acknowledged that the Offender had touched her inappropriately. The following day they had a conversation where the victim informed her that the Offender had tried to “put it in her bum”. The victim reported the matter to the police [over a week] later…
[29] Summons Bundle at 111-112.
At various times the Applicant has sought to discredit the information put before the Court and the character/veracity of witnesses. He directly accused the Victim of lying. He complained that members of the jury had “fallen asleep” during the proceedings and that his legal representation had been inadequate and his solicitor professional incompetent.
His complaints about his solicitor were the subject of a formal complaint to the Law Society of NSW which on 30 September 2021 advised him:
“23. The allegations have been investigated. The information available does not allow the Committee to prefer the statements of one party over that of the other, and accordingly, the allegations are not established.
24. Further, in respect to the second allegation, to the extent that the Complainant may be disputing the quantum of the Respondent Solicitor's costs, that is a matter for determination by the courts' costs assessment process and is not a matter for this Committee.
25. The Committee closes the complaint pursuant to s277(1)(h) of the Legal Profession Uniform Law (NSW) on the ground that, having considered the complaint, it has formed the view that the complaint requires no further investigation.”[30]
[30] G-documents at 312.
The Applicant takes some comfort from the fact that his claims were not rejected, but rather found to be “not established” and the Tribunal understands that the dispute over costs is ongoing.
Further, the Applicant complained that the interpreters in the proceedings were incompetent and that he was not allowed to give evidence so that he felt that his case was never effectively put to the Court.
The Applicant’s final position on this matter is that he did physically assault the Victim, but he did not sexually assault her. He summarised this by saying that he was “partially guilty but not entirely”.
The Applicant’s denials persisted throughout the hearing. When asked by the Respondent if he agreed that the jury had found him guilty, he stated: “[t]hey have decided, yes”. When pressed by the Tribunal as to whether he had ever sexually assaulted the Victim, the reply was, “I do not remember anything”.
Insight was entirely absent from any of the Applicant’s narrative or responses to questions from the Tribunal or the Respondent.
In any event, it is well settled that the Tribunal must not “go behind” the findings of fact established by the Court in reaching a verdict.[31] For the purposes of these Reasons, the facts as stated above by the Sentencing Judge are the accepted facts before the Tribunal.
[31] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653], Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 per Sheppard J at 596, HZCP v Minister for Immigration and Border Protection [2018] FCA 1803.
THE DECISION BEFORE THE TRIBUNAL
The Tribunal has to make a simple determination – whether the cancellation of the Applicant’s visa the “correct or preferrable”[32] decision to be made on the basis of the evidence before the Tribunal.
[32] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister[33] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[34]
[33] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[34] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Subparagraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[35]
[35] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [36] to arrive at a final determination.
[36] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but is it clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. In the Preamble to the Direction it states clearly as an “Objective”: (emphasis added):
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[37]
PRIMARY CONSIDERATIONS
[37] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community and Family Violence
Under this criterion the tribunal must give specific attention to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
The Tribunal notes that the Sentencing Court regarded the seriousness of the offence of aggravated sexual assault as being “at least in the midrange of objective seriousness for offences of this type”[38], the indecent assault finding as “slightly below the midrange of objective seriousness”[39] and the attempted aggravated sexual assault findings as “as within at least the midrange of objective seriousness for offences of this type.”[40]
[38] Summons Bundle at 114.
[39] Ibid at 115.
[40] Idem.
The Tribunal feels bound to accept the Court’s characterisation of the “objective seriousness” of these offences, but, from the point of view of the victim (a 14- or 15-year-old girl, in her own home, assaulted by a stepfather who was in a position of authority and trust) they were anything but “midrange”. They must have been terrifying; the evidence shows that she was left in physical pain and she must have been left feeling distressed, violated and unsafe in a place and relationship that should have remained a sanctuary for her.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[41] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[41] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[42]
[42] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[43]
[43] Ibid.
The Sentencing Court had before it a Pre-sentence consultation report in which a clinical psychologist opined:
“At this stage based on the limited information available, the risk rating of low is considered an accurate reflection of Mr Kapanadze’s current risk for sexual reoffending. He presented with few criminogenic needs and maintains his denial of any sexual interest in his stepdaughter. Offenders in the low risk category of reoffending generally require a low intensity in intervention and/or a minimal level of monitoring and supervision. Departmental resources are currently focused on services for high risk offenders. Should Mr Kapanadze receive a custodial sentence, he may not be considered a priority for Corrective Services Custodial Sex Offender Programs.”[44]
[44] Summons Bundle at 113.
The Court however noted that “The Offender was not directly interviewed for the preparation of the report.”[45] It went on:
“In terms of the Offender’s prospects of rehabilitation, he did not give evidence during sentence proceedings and there was no evidence that he would participate in any programs. It could not be said that his prospects of rehabilitation are good. There is no evidence of remorse.”[46]
[45] Ibid at 114.
[46] Ibid at 115.
In the Custody-based Sex Offender Programs Referral Consent Form the Applicant was asked in relation to your sexual offending:
·“briefly describe what happened” to which he responded “Nothing”;
·“whom has been affected?” to which he responded “Family”;
·“who or what is responsible for sexual offending?” to which he responded “My wife and older stepdother [sic]”.[47]
[47] Ibid at 208.
In a Pre-release report from Corrective Services NSW, dated in June 2021, the following comments are recorded:[48]
“Maintaining denial of his offences, Mr Kapanadze outlined the offence was fabricated by the victim as a means of financial gain, adding that the victim's mother was also a beneficiary in this scenario.
Mr Kapanadze is a categorical denier of his offences which were committed against a female victim aged 14-15 years of age who was his step-granddaughter, who he reported to be a troubled and vulnerable individual that was frequently running away from home and regularly engaging in nefarious activity.
Given that Mr Kapanadze denies his offences, he was unable to display any victim insight. He furthered that due to his ongoing practise of religious faith, he has ’forgiven’ the victim for her alleged false accusations and as 'such does not harbour any ill emotions. Mr Kapanadze described that he has no intentions to establish contact with the victim or her family.
Mr Kapanadze remains steadfast in denial of his convictions, which is of some concern. There is no evidenced behaviour change through therapeutic interventions, having been deemed ineligible due to his low risk rating. Any insight into the impact of his offending upon the victim also poses some concern around his attitude.”
[48] Ibid at 210-215.
Although the Corrective Services assessment of the risk of reoffending is placed as “low / medium” on the Level of Service Inventory – Revised scale and as “low … relative to ither male sex offenders”[49] these assessments have been made in the absence of the Applicant having been tested in the community or assessed through a programme of structured interventions.
[49] Ibid at 212 and 218.
These matters were considered by the Court in fixing its sentence and the Sentencing Judge concluded:
Notwithstanding the Offender’s age, and being his first sentence of imprisonment, in all the circumstances including the Offender’s conviction following trial, the Offender’s lack of remorse, and when there is no evidence of the Offender addressing his offending behaviour nor his participation in any counselling program, I would not make a finding of special circumstances when determining the balance of the term of imprisonment. I intend to impose an aggregate sentence of imprisonment, having regard to the Offender’s presentence custody.[50]
[50] Ibid at 116.
The Applicant seeks to make the point that his “strong Christian belief” should be taken into account in his favour.[51] The Tribunal notes that these beliefs did not prevent him from committing the serious sexual offences of which he has been convicted. His claims to be a “good person”[52] are equally vitiated to a large degree by his objective behaviour and finally, his profession that his time in prison has given him a resetting of his “moral compass”[53] does not comport with continued denials of culpability and responsibility for his actions.
[51] G-documents at 77, 86 and 95 (letter from Chaplain at Junee Correctional Centre).
[52] Applicant’s Letter to Department dated 2 March 2022.
[53] Ibid at 72.
The Tribunal acknowledges that the Applicant undertook a variety of courses while in custody,[54] however none appear to focus on the key issues of improving his understanding of the nature of sexual offending, respect for women or management of deviant behaviour.
[54] G-documents at 96-128.
Although the risk of reoffending may be at the lower end of the scale, the “nature of the harm to individuals” should that behaviour be repeated is anything but. The Tribunal combines this with its assessment of the seriousness of the offence, the breach of the AVO, the Applicant’s continued and persistent denial of guilt and almost complete absence of insight, in giving weight to the criterion.
This criterion counts significantly against the Applicant.
Family violence
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at sub-paragraph 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the non-citizen engage in further acts of family violence.
There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.
In XNBW Senior Member Illingworth described domestic violence as a "scourge", a "plague” and a "pernicious blight" upon the community.[55] I explained in Mendoza that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[56]
[55] Ali and Minister for Home Affairs [2018] AATA 2512 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[56] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
The Court in R v Saunders[57] stated in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[57] [2017] SASCFC 86 at [37].
The Tribunal also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[58]
[58] R v Wood [1994] QCA 297.
These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit,[59] but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct”[60] but the potential consequences of such conduct need to be clearly understood by offenders.
[59] Falzon v Minister for immigration and Border Protection [2018] HCA 2 at [15].
[60] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76].
It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) encompasses offences such as assault, stalking, derogatory taunts, damaging property or exercising coercive control over a family member.
In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.[61]
[61] Vu v Minister for Immigration and Multicultural and Indigenous Affairs [2020] FCAFC 90 at [55] citing Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433.
The Ministerial Direction does not define the exact meaning of “family member”, nevertheless the courts have made clear that the term should not be given a narrow definition. In Deng the Court held that the term should “not be narrowly constructed and should not be limited to close relatives and de facto partners”.[62] While Deng was set aside on appeal, the Full Federal Court expressly agree with the primary judge on that specific point – the term is not to be defined narrowly[63]. In this instance the Victim in question was a stepdaughter and clearly a “family member”.
[62] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 at [156].
[63] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [124].
The violence committed against a vulnerable, young, trusting family member was gross, palpable and indecent. At no stage in any of the material before the Tribunal is there evidence of the Applicant’s appreciation of the impact of his violence upon the Victim, any apology and the Sentencing Judge found that “[t]here is no evidence of remorse.”[64]
[64] Summons Bundle at 115.
This criterion counts significantly against the Applicant.
The best interests of minor children
MD90 (at sub-paragraph 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[65]
[65] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
There are no minor children in Australia as the Victim is now an adult and two of the Applicant’s grandchildren are minors but they are resident overseas.
This criterion counts neutrally in relation to the Applicant.
The expectations of the Australian community
Subparagraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Subparagraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (subparagraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[66] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[66] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[67]
[67] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine, and in this instance it accords the criterion considerable weight.
This criterion counts significantly against the Applicant.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[68]
[68] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[69]
[69] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[70] and more clearly supported by Wigney J in FHHM. [71]
[70] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[71] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[72] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[73]
[72] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[73] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[74]
[74] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[75]
[75] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[76]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[76] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
Where a claim of potential harm to the Applicant, if returned to his country of nationality is raised, even if it is not well or clearly articulated, but is “apparent on the face of the material before the Tribunal”,[77]it must be given appropriate consideration by the Tribunal. In this instance the Applicant has claimed:
“If returned to my country of origin I have real safety concerns and fear for my life. I have previously received death threats from people in my home country. Also if I am go to back [sic] my country this will put my family safety at risk, my children and grandchildren, my brothers and sisters”.[78]
[77] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58].
[78] G-documents at 60.
These claims were subject to detailed and exhaustive examination by the Refugee Review Tribunal in consideration of the original application for a protection visa. They were rejected comprehensively.[79]
[79] Ibid at 348-369.
This Tribunal is not bound by the decision of the previous Tribunal, but it has found nothing put in evidence to it by the Applicant which would cause it to disagree with either the analysis or the finding of that previous Tribunal. The Applicant was given the opportunity, at some length, to explain to the Tribunal why his fears existed. The best that could be gleaned was that he had been involved in, or the victim of, some mafia-style operation involving the transporting of agricultural products across the country and had run into difficulties with the racketeers involved. That was some 24 years or more ago. He also made it clear that he was not involved in any form of political activity which might have had a longer-lasting impact on domestic considerations in Georgia, although again, two decades on the Georgian political landscape is radically different from when he departed. The Tribunal accepts that the Applicant was somehow motivated to leave Georgia when he did, and fled to Australia via Turkey, but it is presented with no evidence which would allow it to come to any justified conclusion as to the exact relevant circumstances.
The Tribunal accepts that the socio-economic-political situation in Georgia is volatile. There are continuing issues with institutional corruption, although both Transparency International and the World Bank have praised Georgia’s recent efforts to reduce this.[80] The ongoing external (Russian) interference in Abkhazia and South Ossetia is destabilising and has led to lawlessness in parts of the country.
[80] G E Tbilisi, 'Lessons from Georgia's fight against graft', The Economist (online, 7 February 2012) < Bank Group, 'Georgia's Fight Against Corruption in Public Services Wins Praise' (Press Release, World Bank Group, 31 January 2012).
However, the Applicant’s claims are basically inchoate and provide no basis upon which it could be established that there is a genuine risk to him, nor to his family. None of the matters raised touch upon the essential Convention Obligations which have to be engaged to establish a “genuine” fear of persecution for non-refoulment consideration, nor do they raise other matters of concern (outside any convention obligations) which can be said to be well-founded or supported by any solid evidence.
In HRZN the Court made clear that:
Non-refoulement obligations are not things in the abstract. They do not arise simply because a person will suffer hardship. They arise having regard to the precise terms of the obligations which are engaged by the ratification of a particular convention. [81]
[81] HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1431 at [60].
This passage was expressly approved by the Full Federal Court on appeal.[82]
[82] HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133 at [52].
The Applicant did say that his wife had fled at some time after he left and was now in Greece but there are no further details of this other than to note that both of his children in Georgia have established successful professional lives and been able to bring up their own families.
The Tribunal accepts that were the Applicant to be returned to Georgia there might be some stigma attracted upon his family if the true nature of his offending behaviour was known. It was the Applicant’s evidence that he has not told them anything about the exact nature of his convictions but that they know he has served some time in gaol, for what they have been told were “Centrelink offences” arising from malicious reporting by his wife to the social security authorities.
In Plaintiff M1 the High Court made it clear that the Tribunal, in most cases has an option not to make a definitive assessment of non-refoulement claims but can defer making a decision where the applicant is still able to make an application for a protection visa.[83]
[83] PlaintiffM1/2021 v Minister for Home Affairs [2022] HCA 17 at 28-35.
That option is not open to this Applicant by virtue of section 48A of the Act which prevents an applicant making a decision for a protection visa on a second occasion once an initial application has been refused, and the applicant remains in the migration zone. That is the case with this applicant.
The Tribunal relies upon the detailed finding of the Refugee Review Tribunal and the fact that the Applicant has proffered no evidence beyond or more contemporaneous to what was considered on that occasion to conclude that Australia’s non-refoulement obligations are not engaged by this application.
In any event, recognising the Applicant’s stated fears, even if this criterion were engaged in some way, it would not carry great weight and would certainly not import any determinative impact on the outcome of this assessment. The Applicant’s personal concerns do not meet the threshold test in HRZN.
This criterion counts with neutral weight in respect of this application.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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 comparator here is not the difference between services or supports available in Australia as compared with those in Georgia, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
Unlike many cases before this Tribunal, the Applicant in this instance has close family ties in Georgia. He has a son, daughter and three grandchildren (aged 18, 13 and 11 years). He knows the addresses of his family members; he is in touch with them regularly and they have a “good relationship”. In his Personal Circumstances Form he writes that “I miss my family very much (20 years) but I cannot guarantee their safety if I return to Georgia”.[84]
[84] G-documents at 75.
The Applicant left his homeland when he was already an adult having grown up there in a secure family environment and having worked there. He would not face linguistic or cultural barriers on his return. He declares in his Personal Circumstances Form that he does not suffer from any health problems.[85]
[85] Ibid at 74.
His ties to the Australian community are not that strong and indeed have been weakened by his extensive period of incarceration and he has no family lies which he wishes to maintain in Australia.
There is no doubt that there would be some impediments faced by the Applicant even under these limited circumstances. There is no solid evidence as to the extent to which his Georgian family would welcome his return and although he professes that they are all in a good relationship and that he loves his Georgian family, he fears that they might be somewhat less amenable to his return if the genuine nature of his offending was revealed. That is a matter not within the hands of the Tribunal to determine and the extent to which the Applicant’s family will continue to accept his current explanation of incarceration is equally a matter of speculation.
This criterion counts in favour of the Applicant to a limited degree.
Impact on victims
Section 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
There is clearly at least one immediate victim in this matter, the Applicant’s stepdaughter (younger) and she indeed has other “family members”. However there is no evidence before the Tribunal of her position in terms of what the impact might be of either allowing the Applicant to remain or to be removed from Australia.
This criterion counts neutrally in respect of the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
There are no immediate family members in Australia whose interests need to be considered. There have been no submissions from or on relation to any family members and the Tribunal is not required to conduct any detailed inquiry into matters not specifically advanced before it, or obvious on the material in submissions.[86]
[86] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25].
In relation to this Applicant there is no doubt that he has maintained a high level of productive employment throughout his time in Australia prior to his incarceration. He has lived in the Australian community for some 24 years. It is also clear that he has contributed as a volunteer through activities under the auspices of the Church.
The Tribunal cannot place any reliance upon the reference from the Rev Nikolay Kravtsov of the Russian-Ukrainian Christian Church which, no doubt written most sincerely was completed in 2005 prior to the Applicant’s convictions for serious sexual offences. It also references the Applicant’s “wife” (not being the same person as his sponsor whom he married in 2008) and “stepson” who are Australian citizens and about whom there are other details in any records.[87]
[87] Applicant’s Submissions to Minister at 49.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. None is apparent in this application.
Nevertheless the Applicant is entitled to some credit on the criteria which are set out in the Ministerial Direction.
This criterion counts to a limited degree in favour of the Applicant.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[88]
[88] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[89]
[89] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “It is, however, improbable that Parliament intended for that broad discretionary power to be confined”[90] to only those representations.
[90] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[91]
[91] Ibid at [70].
The Tribunal is not aware of any further broader issues which it should consider in its assessment of this application.
CONCLUSION
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria as far as the revocation of the Applicant’s visa cancellation is concerned:
·protection of the Australian community weigh significantly against;
·family violence factors weigh significantly against;
·best interests of minor children weigh neutrally;
·expectations of the Australian community weigh significantly against;
·non-refoulement obligations weigh neutrally;
·extent of impediments if removed weigh in favour to a limited degree;
·impact on victims weigh neutrally; and
·links to Australia weigh in favour to a limited degree.
The calculus must clearly resolve as significantly unfavourable to the Applicant and there is not another reason to find that the decision to cancel the Applicant’s visa should be revoked.
DECISION
The decision under review is affirmed.
I certify that the preceding 138 (one hundred and thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.....................................[sgd]...................................
Associate
Dated: 18 August 2022
Date(s) of hearing: 9 August 2022 Applicant: In person Solicitors for the Respondent: Mr K Kim, Clayton Utz
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