Kejoa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 2603
•17 August 2023
Kejoa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2603 (17 August 2023)
Division:GENERAL DIVISION
File Number:2023/3692
Re:Junior David Kejoa
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:17 August 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 25 May 2023 not to revoke the cancellation of the Applicant’s visa.
.................................[SGD].............................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class WA Subclass 010 Bridging A (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
17 August 2023
INTRODUCTION
By application made on 29 May 2023 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 25 May 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made on 14 October 2022 under s 501(3A) of the Act to cancel the Applicant’s Class WA Subclass 010 Bridging A (Temporary) visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under
s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
7For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
Passages in bold in these reasons represent Tribunal added emphasis.
The Applicant is a 23 year old farm worker and citizen of the Solomon Islands. He arrived in Australia on 29 May 2021 on Temporary Work (International Relations) (subclass 403) visa which has since expired. Prior to its expiry, he applied for and was granted the visa which is the subject of this application.
The applicant's movement records indicate that he has made no trip overseas since his arrival in Australia.[1]
[1] G1, p 126.
On 28 September 2022, the applicant was convicted of unlawfully wound another, assaults occasioning bodily harm, and common assault, in the District Court of Queensland at Townsville, and was sentenced to 3.5 years imprisonment (suspended after 42 months).[2] The relevant offending took place on 25 December 2021, less than seven months after his arrival in Australia.
[2] G1, p 33
On 14 October 2022, whilst the Applicant was in custody serving a term of imprisonment the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’), acted pursuant to s 501(3A) of the Act, acted to mandatorily cancel the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 14 October 2022.[3]
[3] G1, pp 119-125.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with
s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[4]
[4] G1, pp 42-46.
On 25 May 2023, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[5] and the Applicant made the present application to this Tribunal for a review of that decision.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] G1, p 18.
[6] G1, pp 4-9.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 17 August 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which the Tribunal is required to read, identify, understand and evaluate.[7]
[7] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[8]
[8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9]
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[10] establishes that the Applicant was convicted of unlawfully wound another, assaults occasioning bodily harm, and common assault, in the District Court of Queensland at Townsville, and was sentenced to 3.5 years imprisonment (suspended after 42 months). Moreover, during his evidence, the Applicant conceded the accuracy of his history of Australian offending as set out in the G Documents and in the Respondent’s Statement of Facts Issues and Contentions (“SFIC”)[11] and that he does have a substantial criminal record and does not pass the character test.
[10] G1, pp 34-37.
[11] Transcript, p 6, lines 40-47.
It is clear that this concession was properly made, as the custodial term imposed was “a term of imprisonment of 12 months or more”, and the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to
s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 99
In considering whether to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the power in s 501CA(4) of the Act.
[12] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[13]
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
[13] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance or criminal or other serious misconduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the Considerations (both Primary and Other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that Primary Considerations should generally be given greater weight than the Other Considerations. Paragraph 7(3) provides that one or more Primary Considerations may outweigh other Primary Considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These Considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
The Tribunal notes the importance of these Considerations being “Other” Considerations, as opposed to “secondary” Considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[14] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these Considerations.
The Applicant, is a 23 year old citizen of the Solomon Islands. The applicant arrived in Australia on 29 May 2021 aged 21, on a Temporary Work (International Relations) (subclass 403) visa which has now expired. He has not departed since. Less than seven months after his arrival, on 25 December 2021 whilst drunk at a work related Christmas party, he committed the offences which led to his incarceration. He has been in custody or immigration detention since that date. He is a single man, with no infant children, and there do not appear to be any other minor children who will be impacted by a decision in this case. He has no relatives in Australia other than two unnamed fellow tribesmen whom he described in the Melanesian way as “cousins’, although they are not biological cousins in the sense in which that term is customarily used in Australia. Neither of them placed evidence before the Tribunal.
31.Extracts from the sentencing remarks[15] of her Honour Judge Clare SC include the following:
HER HONOUR: All right. Mr Kejoa you viciously attacked one man and wounded another who had tried to stop you. The three of you were farm workers. You lived on the farm. The violence started after the Christmas barbeque. You were very drunk. You wanted your speaker back. Hendry told you that someone else was using it. Apparently that caused you to explode. You kicked Hendry in the stomach. The force knocked him flat on his back. You then sat on him and choked him with both hands. The man could not breathe. He managed to use his knees to push you off. In doing so, he managed to get on top of you and restrain you before running off, but you chased after him. He tried to get inside of the premises and you wrestled together. Other workers came to intervene. Still, you did not calm down. The second victim, Clevin, tried to separate you from Hendry, but you just continued chasing after Hendry. Hendry eventually tripped. While he was down and helpless, you kicked him about the head and face four times. He lost consciousness. You left him only to then provoke a fight with Clevin. When it was over, you found a knife. You went after Clevin, ambushing him as he was walking through a doorway. You stabbed him in the head with the small knife. You had swung that knife at him three times. The wound was to his forehead, six centimetres long, down towards his eye. You had cut through to his skull bone. Your fingers left lines around Hendry’s neck. Fortunately, it appears that both men have made a physical recovery, but Mr Kejoa, it so easily could have been much worse. You had repeatedly targeted vulnerable areas of the body. The margin between recovery and death in choking can be a fine one. No one is saying that you intended to kill Hendry, but you did not stop choking him until he had managed to push you away. And later, you assaulted him on the head. Just one misplaced blow to the head can kill a person. Your assault was enough to render him unconscious. It was after that that you chose to pick up a knife and use it at the head of Clevin. I should not need to tell you how dangerous that was. You were an irrational drunk in an irrational and drunken mood, reckless as to the harm that you caused. The violence was persistent. It concerned two victims. Mr Pack pointed out that although you pursued those victims, they did not remain passive for the entire episode. Hendry hit back at one point. There was the fight. At times both men shaped up to you to ward you off. I cannot see how those actions mitigate this violence. You are only 21. You were born in the Solomon Islands and raised by a poor family. You have no criminal record. You have pleaded guilty at an early point. I take a more serious view of this episode than the prosecutor. The gravamen of the offence is its dangerousness, the potential harm, the potential for greater harm against these two people and the persistence in which you pursued it.
Notwithstanding your age, the lack of history and the early plea, the gravity of the offending, this level of violence, requires a substantial sentence of imprisonment, to serve as a stern warning to both you and to others. Choking, the use of knives, blows to the head, unprovoked violence calls for stern punishment for the protection of others.You are a citizen of the Solomon Islands. You were here on a work visa, which then became a bridging visa. You have support from a priest and the labour hire agency. You have spent the last nine months in remand custody. It appears certain that you will be deported. The certainty of deportation is a relevant consideration. It can be accepted that there will be an adverse impact for you. You have had the knowledge, at least recently, that you will be deported, and you have lost the opportunity to continue to apply for work in order to earn money for your family. Remand custody interrupts the working life of any offender, but you have lost the chance of further work in this country. The sentence will be suspended rather than release on parole. For the wounding, you are sentenced to three and a-half years imprisonment. For the assault occasioning bodily harm, count 2, you are sentenced to two years imprisonment. For count 3, 18 months imprisonment, count 1, 12 months imprisonment. The sentence is to be suspended after you have served 10 months in pre-sentence custody. It is to be suspended for three and a-half years, which means that you must not commit another offence punishable by imprisonment if you are to avoid the activation of the suspended sentence.”
[15] G1, pp 35-37.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)
Australian Criminal Intelligence Commission Check Results Report dated
1 November 2022;[16]
(b)
Verdict and Judgment record of the District Court of Queensland dated
28 September 2022[17].
[16] G1, pp 32-33.
[17] G1, pp 40-41.
EVIDENCE AT HEARING
The hearing took place in Brisbane on Wednesday 26 July 2023. The Applicant was self represented. Ms Black of Minter Ellison appeared for the Respondent.
The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “A”.
The Tribunal received oral evidence from the Applicant. Prior to the commencement of his evidence, the Tribunal explained to him the legal obligation of truthfulness which arose from his affirmation, and stressed the importance of his evidence being truthful.
The Applicant told Ms Black he arrived in Australia on 29 May 2021 on a visa which he knew to be a temporary one. He initially said he did not realise his visa could be cancelled if he committed crimes, but then said that he thought it was a possibility that it might be cancelled.
The Applicant was referred to the passage from the remarks of Clare DCJ which read:
“You were very drunk. You wanted your speaker back. Hendry told you that someone else was using it. Apparently that caused you to explode. You kicked Hendry in the stomach. The force knocked him flat on his back. You then sat on him and choked him with both hands. The man could not breathe. He managed to use his knees to push you off. In doing so, he managed to get on top of you and restrain you before running off, but you chased after him. He tried to get inside of the premises and you wrestled together. Other workers came to intervene. Still, you did not calm down. The second victim, Clevin, tried to separate you from Hendry, but you just continued chasing after Hendry. Hendry eventually tripped. While he was down and helpless, you kicked him about the head and face four times. He lost consciousness. You left him only to then provoke a fight with Clevin. When it was over, you found a knife. You went after Clevin, ambushing him as he was walking through a doorway. You stabbed him in the head with the small knife. You had swung that knife at him three times. The wound was to his forehead, six centimetres long, down towards his eye. You had cut through to his skull bone. Your fingers left lines around Hendry’s neck.”
The Applicant accepted that the judge’s remarks were accurate but he maintained that he had only stabbed Clevin once. He agreed that the episode would have been quite traumatic for the victims.
He recalled the day of his sentencing but could not recall the duration of the various sentences.
He said that he was arrested the night of the incident, taken to prison straight away, and has remained incarcerated or in detention since that day.
After receiving notice of cancellation of his visa, he had responded with a Personal Circumstances Form (‘PCF’)[18] in which he stated at question 10 that he was doing drug and alcohol courses. He told the Tribunal that he did not get a certificate of completion because of a computer problem. He said the program ran for two months but the course was not completed because one of the detainees punched the officer who ran the course. He attended for one hour one day a week for three weeks, a total of three hours of alcohol courses. He said that he learned alcohol is not good, and it makes people behave badly. He said it was better to stay off alcohol, and in a circle of good friends.
[18] G1, pp 47-61.
The Applicant was asked about several incidents reported as having occurred whilst he was in detention at the Brisbane Immigration Transit Accommodation. He was referred to an incident on 9 March 2023[19] where two one litre and one two litre bottles of home brewed alcohol were found in a room he shared with another. He denied the home brew was his, and said someone else had put it there. He was referred to a further incident on 7 April 2023[20] where he was recorded as sharing a container of broom with his room-mate. He said that this belonged to his room-mate. He was referred to a further incident where he had verbally abused a female catering staff member, calling her a “mother fucking bitch” and telling her to “go and fuck herself” after she refused to put fruit salad in a takeaway container for him. He later offered to apologise.
[19] G1, p 127.
[20] G1, p 129.
The Applicant said that the record was accurate as recorded. He agreed further that he has difficulty controlling his temper and had not undergone any courses in anger management.
The Applicant said that he is not married.[21] He said he has two cousins in Australia who live in Bowen, a long way from Brisbane. He later told the Tribunal that these were not biological cousins in the sense that the term is used in Australia, but fellow tribesmen from the Solomon Islands. He said he is not close to them, and has no family or children in Australia.
[21] G1, p 56.
He was asked about a female friend named Ashleigh Hearnshaw who had provided a letter in support of him. He said that they met in Townsville in October 2021. He was imprisoned in December so they had contact for about two months prior to his imprisonment. She is a truck driver. He met her while he was out walking. She lives in Weipa.
The Applicant said that he would like to change himself and be a good person. He agreed that he arrived in Australia when he was 21 years old, and the incident took place 7 months after he arrived. He had only spent 7 months in the Australian community.
When asked about his life before he came to Australia, and his family ties in the Solomon Islands, the applicant said that he grew up in a poor family in Guadalcanal, and spent his formative years there. He wanted to earn money in Australia to help support his parents, pay school fees for his siblings, and build a house. He remains in touch with his family by phone, and last spoke to them in January this year. They were worried that he was in prison and detention. They live in the village where he grew up. His family live a traditional lifestyle growing cassava and bananas and raising pigs. He used to help with the farming, but they have been getting by without support from him since December 2021.
He said he would have a very hard time if returned to the Solomon Islands as he would not have a job or a home. Population growth had led to territorial land disputes. Tribes were fighting over land. His father passed away while he was in detention. He agreed that he does have a support network there, speaks the language and has skills to get a job there.
The Tribunal notes that in a statement to the Department,[22] the Applicant expressed concern that he if required to return to the Solomon Islands, it was not safe for him as there was a high chance that he would be kidnapped by, and forced to join rebel forces. The Tribunal notes that in his PCF[23] at item 13, the Applicant appears to have initially ticked the “No” box, before seeking to correct that and ticking the “Yes” box in response to the question ‘Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship.’ The question provided a supplementary question: If yes, describe your fears and concerns about what will happen to you on your return. The Applicant provided a response which referred to a hard life, and fights over land as reasons he did not want to go back. He made no mention of kidnapping either in his response to question 13, or elsewhere in the PCF. Neither did he mention this fear of kidnapping in his oral evidence.
[22] G1, p 63.
[23] G1, p 60.
CONSIDERATION
The Tribunal now turns to the specific Considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of crimes or conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant’s conduct clearly falls for consideration having regard to para 8.1.1(1)(a)(i) of the Direction as it is comprised of a series of violent crimes.
A reading of the sentencing remarks of Clare DCJ reveals quite graphically the extent of the violence perpetrated by the Applicant. His drunken unprovoked attacks on his two victims were vicious, sustained and life threatening, and left one victim unconscious and the other suffering from a severe knife wound to the head. He had pursued his victims even after they sought to flee. Both victims were no doubt traumatised by his conduct, which was reckless as to the harm he caused. Perhaps most tellingly, her Honour remarked:
“The gravamen of the offence is its dangerousness, the potential harm, the potential for greater harm against these two people and the persistence in which you pursued it.”
Consideration of sub-paragraph (a)(i) of paragraph 8.1.1(1) of the Direction leads the Tribunal to find that the Applicant’s offending is very serious.
An overall consideration of subparagraph (a) of paragraph 8.1.1(1) of the Direction weighs very heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
There is no evidence before the Tribunal so as to enliven a consideration of this sub-paragraph, and accordingly paragraph 8.1.1(1)(b)(ii) of the Direction is given neutral weight.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to subparagraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
This Applicant, although lacking criminal history, and offering an early plea, still received a series of very heavy sentences of imprisonment:
“For the wounding, you are sentenced to three and a-half years imprisonment. For the assault occasioning bodily harm, count 2, you are sentenced to two years imprisonment. For count 3, 18 months imprisonment, count 1, 12 months imprisonment. The sentence is to be suspended after you have served 10 months in pre-sentence custody. It is to be suspended for three and a-half years, which means that you must not commit another offence punishable by imprisonment if you are to avoid the activation of the suspended sentence.”
These sentences underscore the gravity of his offending which was referred to by the sentencing Judge:
Notwithstanding your age, the lack of history and the early plea, the gravity of the offending, this level of violence, requires a substantial sentence of imprisonment, to serve as a stern warning to both you and to others. Choking, the use of knives, blows to the head, unprovoked violence calls for stern punishment for the protection of others.
An overall consideration of subparagraph (c) of paragraph 8.1.1(1) of the Direction weighs very heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
There is no evidence before the Tribunal so as to attract consideration of sub-paragraph (d) of paragraph 8.1.1(1) and accordingly it is given neutral weight.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
There is no evidence before the Tribunal so as to attract consideration of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction and accordingly it is given neutral weight.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no clear evidence that the Applicant’s conduct enlivens consideration of this sub-paragraph.
In these circumstances, a consideration of sub-paragraph (f) of paragraph 8.1.1(1) is given neutral weight.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned or otherwise informed about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence before the Tribunal of any formal warning being given to the Applicant
In these circumstances, a consideration of sub-paragraph (g) of paragraph 8.1.1(1) weighs neutrally.
Sub-paragraph (h) arises for consideration where an offence or conduct was committed in another country.
There is no evidence before the Tribunal so as to enliven consideration of this sub-paragraph.
In these circumstances, a consideration of sub-paragraph (h) of paragraph 8.1.1(1) weighs neutrally.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), and (c), of paragraph 8.1.1(1) of the Direction are relevant, the Tribunal is of the view that the nature and seriousness of the Applicant’s offending conduct can be readily characterised as extremely serious.
8.1.1 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The assessment of the risk to the Australian community were the Applicant to engage in further offending or other serious conduct, is properly informed by the nature of his offending and other serious conduct to date. This assessment is also informed by the provision in paragraph 8.1.2(1) of the Direction which stipulates that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated is unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Having regard to para 8.1.2(2)(a) of the Direction, it is clear from her Honour’s remarks, that the nature of the harm that might be caused by any further similar conduct by the Applicant could range from being wounded or bashed unconscious to death either from a knife wound or repeated kicks to the head. Any further similar conduct by the Applicant would, at minimum, result in great physical pain, suffering, and associated trauma, and at worst, death. The Tribunal considers that this type of harm is so serious that any risk that it may be repeated is unacceptable.
Having regard to para 8.1.2(2)(b)(i) of the Direction, there is no expert evidence before the Tribunal as to the Applicant’s likelihood of further criminal or other serious conduct.
Having regard to para 8.1.2(2)(b)(ii) of the Direction, the Applicant has undertaken a minimal amount of rehabilitation in the form of three hours of a partly completed course in relation to his alcohol consumption. This evidence is not sufficient to allow the Tribunal to conclude that it has resulted in the Applicant’s rehabilitation. Moreover, he has been involved with two episodes involving home brew whilst in detention, and in consequence, the Tribunal is not satisfied that he has achieved any rehabilitation in terms of his alcohol consumption.
The Applicant has not undertaken any courses intended to assist him to curb his anger issues.
Having regard to the totality of the evidence the Tribunal considers that the Applicant’s risk of reoffending is linked to his ability to abstain from alcohol and control his anger. There is no persuasive evidence that he has undertaken any successful rehabilitation in respect of either issue. Whilst the Applicant continues to take alcohol, the Tribunal considers his risk of re-offending to be at least moderate.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In 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 evidence before the Tribunal which enlivens consideration of Primary Consideration 8.2.
Conclusion: Primary Consideration 2
Primary Consideration 2 is given neutral weight.
PRIMARY CONSIDERATION 3 THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3(1) of the Direction requires consideration of any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:
(a)The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Consideration of paragraph 8.3(1)
Impact on immediate family
There is no evidence before the Tribunal that any members of the Applicant’s immediate family are Australian citizens or permanent residents, and therefore a consideration of paragraph 8.3(1) of the Direction does not arise.
Conclusion Paragraph 8.3(1)
Paragraph 8.3(1) of the Direction is given neutral weight.
Consideration Of Paragraph 8.3(2) Ties To Children
There is no evidence before the Tribunal that the Applicant has any children, and therefore a consideration of paragraph 8.3(2) of the Direction does not arise.
Conclusion Paragraph 8.3(2)
Paragraph 8.3(2) of the Direction is given neutral weight.
Consideration Of Paragraph 8.3(3) Family And Social Links With Citizens And Permanent Residents
There is very sparse evidence of this Applicant’s ties to the Australian community, which is unsurprising since he was only at liberty in Australia for a period of seven months during which time he was working on a farm. The Tribunal has an undated, unsworn, unsigned letter purporting to be from Ashleigh Hearnshaw who wrote to support the Applicant’s release. It is unclear if the author is a citizen or permanent resident. It asserted that he was “very resourceful for his actions” (sic), but displayed no detailed knowledge of those actions. The letter offered support with accommodation and assistance to obtain a job as a kitchen hand, which appears in any event to be outside the scope of the work allowed by the terms of his visa. It was the Applicant’s evidence that he had only known Ashleigh for the two months prior to his incarceration. The letter did not really detail the nature or extent of any ties the author had to the Applicant, and the Tribunal gives it no weight.
Conclusion Paragraph 8.3(3)
Paragraph 8.3.3 of the Direction is given neutral weight.
Consideration Of Paragraph 8.3(4)(a)(i)
Having regard to paragraph 8.3(4)(a)(i) of the Direction, this applicant was not ordinarily resident of Australia during his formative years, and this consideration is given neutral weight.
Conclusion Paragraph 8.3(4)(a)(i)
Paragraph 8.3(4)(a)(i) of the Direction is given neutral weight.
Consideration Of Paragraph 8.3(4)(a)(ii)
Having regard to paragraph 8.3(4)(a)(ii) of the Direction, the Applicant may be seen to have presumably contributed to the Australian community through the payment of taxes during the seven months he was employed. This is given slight weight in favour of revocation of the cancellation of the Applicant’s visa owing to the brevity of the period in question as there is otherwise no evidence of his contribution to the community.
Conclusion Paragraph 8.3(4)(a)(ii)
Paragraph 8.3(4)(a)(ii) of the Direction is given slight weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Consideration Of Paragraph 8.3(4)(a)(iii)
Paragraph 8.3(4)(a)(iii) of the Direction diminishes the weight in circumstances where the Applicant was not ordinarily resident in Australia during his formative years, and began offending soon after arriving. Clearly the Applicant offended within a very short time of his arrival in Australia as an adult. This has the effect of offsetting the weight given in respect of paragraph 8.3(4)(a)(ii), and neutralising it.
Conclusion Paragraph 8.3(4)(a)(iii)
Paragraph 8.3(4)(a)(iii) of the Direction neutralises the weight given in favour of revocation of the mandatory cancellation of the Applicant’s visa pursuant to paragraph 8.3(4)(a)(ii).
Conclusion Primary Consideration 3
Primary Consideration is given neutral weight.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are no relevant children so as to enliven consideration of Primary Consideration 4.
Conclusion: Primary Consideration 4
For the purposes of Primary Consideration 4, the best interests of the children is given neutral weight.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(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 he may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that 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.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[24]
[24] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 5
The applicant has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is at least a moderate risk that he will offend again.
Having regard to the sentencing judge’s remarks of the viciousness of the Applicant’s unprovoked attack and the potential life threatening consequences of such conduct, as well as paragraph 8.5(1) and (2) of the Direction, the Tribunal considers that the nature of the Applicant’s offending is such that the Australian community would expect that his visa remain cancelled.
The Tribunal considers that Primary Consideration 5 should weigh very heavily against revocation.
Conclusion: Primary Consideration 5
Primary Consideration 5 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PARAGRAPH 9: OTHER CONSIDERATIONS
Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Impact on Australian business interests.
(a) Paragraph 9.1 Legal consequences of the decision
The Tribunal accepts that there will be legal consequences of a decision to affirm the decision under review.
There is no evidence to suggest the applicant is facing detention indefinitely.
As noted earlier, the Applicant did raise in documents before the Tribunal concerns as to the possibility of his being kidnapped and drawn into inter-tribal land disputes. In his oral evidence the Applicant’s concerns of return appeared to focus on the fact that his family would be angry and disappointed that he had lost his job and consequent cash flow, and he would have no paid employment there, and be returned to the subsistence lifestyle with which he had grown up. The evidence before the Tribunal is insufficient to enable it to conclude that Australia’s non-refoulement obligations are enlivened in this case. The claimed threat of kidnapping is of concern to the Tribunal, however there is scant evidence in respect of it. It may be that the Applicant may be able to provide a more fulsome expression of his concern should he seek a protection visa.
In any event, to date, the Applicant has made no claim for a protection visa, and it has been, and remains open to him to do so. Having regard to the High Court’s decision in Plaintiff M1/2021v Minister for Home Affairs [2022] HCA 17, the Tribunal considers that the question of whether the Applicant is owed any non-refoulement obligations are best dealt with if and when he applies for a protection visa.
The first consequence of an affirmation of the decision under review is that the Applicant’s bridging visa will remain cancelled, and the substantive visa in respect of which the Applicant’s bridging visa was issued will be deemed to have been refused: s. 501F(2) of the Act, and he will remain an unlawful non-citizen.[25]
[25] Section 15 of the Act.
The Applicant will be liable for removal from Australia as soon as reasonably practicable pursuant to ss 189 and 198 of the Act. A further consequence of the Tribunal’s affirming the decision under review is that pursuant to s 501E of the Act the Applicant will not apply be able to apply for another visa while he remains in Australia unless this the decision is set aside or revoked prior to his making the visa application. The only exceptions are an application for a protection visa (subject to s. 48A of the Act) or a visa specified in the Migration Regulations 1994 (the Regulations) (i.e. reg 2.12AA) as set out in s 501E(2) of the Act.
The Tribunal is unable to conclude that the legal consequences of this decision will impact this Applicant in any manner different from how others are similarly impacted.
This Other Consideration 9(1)(a) is given neutral weight.
(b) Paragraph 9.2 Extent of Impediments if Removed
Paragraph 9.2(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a) - Age and health
The Applicant is a 23 year old man. He appears to be in good health. It is unclear to what extent if any his health is impacted by his alcohol consumption. There does not appear to be any reason that either his age or health will impact his capacity to assimilate back into the community he comes from.
The Tribunal finds that the Applicant’s age and health weighs neutrally in relation to the mandatory cancellation of his visa.
Paragraph 9.2 (1)(b) Substantial language or cultural barriers
There is no evidence before the Tribunal so as to suggest that the Applicant will encounter any language or cultural barriers on his return to the Solomon Islands.
This Consideration is therefore given neutral weight.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country.
There is no evidence before the Tribunal that suggests that the Applicant will be denied access to any social, medical and or economic support that is generally available to other citizens of that country.
Accordingly, this Consideration is given neutral weight.
Conclusion Paragraph 9.2 Extent Of Impediments If Removed
Having regard to the factors in Paragraph 9.2(1) of the Direction, the Tribunal finds that this Consideration weighs neutrally in regard to the mandatory cancellation of the Applicant’s visa.
(c) Paragraph 9.3(1) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal so as to enliven a Consideration of paragraph 9.3(1) of the Direction.
In the circumstances, the Tribunal gives this Other Consideration 9.3 neutral weight.
(d) Paragraph 9.4 Impact on Australian Business interests
Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence before the Tribunal that the Applicant’s deportation will, by itself, impact on Australian business interests in the manner contemplated by Direction 99, i.e. that the decision would “significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
This Other Consideration 9.4 is therefore given neutral weight.
Conclusion As To Paragraph 9: Other Considerations
An overall Consideration of Paragraph 9: Other Considerations, as well as the additional Other Consideration raised by the Applicant weighs neutrally in relation to the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the power afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 is given neutral weight;
·Primary Consideration 3 is given neutral weight;
·Primary Consideration 4 is given neutral weight;
·Primary Consideration 5 weighs very heavily in favour of non-revocation;
·The totality of Other Considerations weighs neutrally.
·Having regard to para 8.1.2(1) of the Direction, together with the principles stated in paragraph 5.2 of the direction, particularly in paragraphs 5.2(1),(2), (3), (4) and (6) of the Direction the Tribunal is of the view that the harm that would be caused if the Applicant’s conduct were to be repeated is so serious that any risk that it may be, repeated is unacceptable.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
The Tribunal is therefore not prepared to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 25 May 2023 not to revoke the cancellation of the Applicant’s visa.
I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.....................................[SGD]..............................
Associate
Dated: 17 August 2023
Dates of hearing: 26 July 2023 Representative for the Applicant: Self-represented Solicitor for the Respondent: Sarah Black Minter Ellison ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents
(G1-G6, paged 1-158)R Various 6 Jun 2023 R1 Respondent’s Statement of Facts, Issues and Contentions
(paged 1-9)R 11 Jul 2023 11 Jul 2023 A1 Statement of Ash Hearnshaw
(1 page)A Undated 27 Jun 2023 A2 Summons Material
· Queensland Police Service documents (12 pages);
· Queensland Corrective Services documents (88 pages);
· Townsville District Court documents (14 pages).
A Various 4 Jul 2023
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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