KLQF and Minister for Home Affairs (Migration)

KLQF and Minister for Home Affairs (Migration) [2019] AATA 933 (16 May 2019)
Division:GENERAL DIVISION
File Number: 2019/0975
Re:KLQF
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Tigiilagi Eteuati
Date:16 May 2019
Place:Sydney

The decision under review is affirmed.
........................................................................
Member Tigiilagi Eteuati
Catchwords
MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision affirmed
Legislation
Migration Act 1958 (Cth) – s 36, s 195A, s 197C, s 198, s 417, s 499, s 501, s 501CA, s 501J
Cases
Al-Kateb v Godwin [2004] HCA 37
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Afu v Minister for Home Affairs [2018] FCA 1311
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BKS18 v Minister for Home Affairs [2018] FCA 1731
Chol v Minister for Immigration & Anor [2018] FCCA 306
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Doan and Minister for Home Affairs (Migration) [2019] AATA 169
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FACFC 66
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
Omar v Minister for Home Affairs [2019] FCA 279
Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554
PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782
Sowa v Minister for Home Affairs [2018] FCA 1999
Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40
TGXY and Minister for Home Affairs (Migration) [2019] AATA 757
Toki and Minister for Home Affairs (Migration) [2019] AATA 742
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Tigiilagi Eteuati
16 May 2019
BACKGROUND

This is an application by KLQF (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 21 February 2019 not to revoke, under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), the cancellation of the Class CD Subclass 851 (Resolution of Status) visa.
The Applicant is a 48 year old citizen of the Democratic Republic of the Congo (“the Congo”) who was born in 1971. The Applicant arrived in Australia in February 2002. The Applicant’s visa was cancelled under section 501(3A) of the Act on 28 May 2018. The Applicant’s visa was cancelled by the Minister on the basis that the Applicant did not pass the character test as set out in section 501(6)(a) of the Act (when read with section 501(7)(c)) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. On 31 May 2018, the Applicant sought that the cancellation decision be revoked. On 21 February 2019, the Minister refused to revoke the cancellation of the Applicant’s visa. On 22 February 2019, the Applicant applied to this Tribunal for review of that decision.
The matter was heard on 2 and 3 May 2019. For the reasons below, I have found that the Minister’s delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa is the correct decision and I have affirmed that decision.
ISSUES
Pursuant to section 501CA(4) of the Act, the Minister may revoke the decision made under section 501(3A) of the Act to cancel the Applicant’s visa. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations to the Minister about revocation of the cancellation of his visa and he made representations in accordance with the invitation. Thus, section 501CA(4)(a) is satisfied in this case.
The two remaining issues are:
a.Whether the Applicant passes the character test as defined in section 501 of the Act; and
b.Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Tribunal finds that the Applicant passes the character test or that there is another reason why the decision to cancel the Applicant’s visa should be revoked, the cancellation decision must be revoked.
The Tribunal considers that the meaning of “another reason” in subparagraph 501CA(4)(b)(ii) of the Act is a reason other than that the Applicant passes the character test. The Full Court of the Federal Court has found that there is no residual discretion to be exercised once the Minister (and in this case, the Tribunal) finds that the Applicant passes the character test or there is another reason why the cancellation decision should be revoked. The Full Court has also found that the “reason” in subparagraph 501CA(4)(b)(ii) of the Act does not mean “any reason” but rather the determinative reason for revocation arrived at after a balancing of factors both in favour and against revocation.
In Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66 the Full Court of the Federal Court (Collier J, with whom Logan and Murphy JJ agreed), after citing with approval the reasons of North ACJ at paragraphs [38] and [39] of his decision in Gaspar v Minister for Immigration and Border Protection[2016] FCA 1166, stated at [31] and [32]:
“I agree with this analysis. The primary Judge in these proceedings found, and the parties are ad idem, that s 501CA(4)(b) requires the Minister to revoke the cancellation if he or she is satisfied of relevant requirements. To that extent his Honour held that “may” in s 501CA(4)(b) means “must”. I consider that this is a correct construction of s 501CA(4)(b).
In relation to the question whether s 501CA(4)(b)(ii) contemplates an evaluative process on the part of the Minister, I respectfully adopt the reasoning of North ACJ in Gaspar [2016] FCA 1166 at [38]- [39]. In so doing, I note that the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation. This is the exercise upon which the Minister clearly embarked in this case. It follows that I respectfully agree with the view formed by his Honour at [52] and [53] of the primary Judgment.”
If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A7 and the documents tendered into evidence by the Respondent and marked as exhibits S1 to S43. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision.
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
A summary of evidence of witnesses is provided below from paragraph 32 of these reasons.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6) relevantly provides:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more.
Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.
Offending history
An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 21 November 2018 shows the following offences committed by the Applicant:
(a)On 19 March 2018, the Applicant was convicted of the following offences:
(i)Knowingly produce false/misleading document: state law, the Applicant was sentenced to 12 months imprisonment with a non-parole period of 8 months.
(ii)Never licensed person drive vehicle on road - prior offence, the Applicant was sentenced to 6 months imprisonment.
(iii)Use unregistered registrable Class A motor vehicle on road and fined $500.
(b)The Applicant appealed the severity of his sentence and on 29 May 2018, the Applicant’s sentences were varied as follows:
(i)Knowingly produce false/misleading document: state law, the Applicant was sentenced to 10 months imprisonment with a non-parole period of 5 months.
(ii)Never licensed person drive vehicle on road - prior offence, the Applicant was sentenced to 4 months imprisonment.
(c)On 8 November 2017, the Applicant was convicted of Never licensed person drive vehicle on road - prior offence, and fined $400.
(d)On 4 July 2017, the Applicant was convicted of the following offences:
(i)Driver or rider state false name or home address, with no other penalty.
(ii)Knowingly produce false/misleading document: state law, the Applicant was subjected to a community service order: 50 hours property to owner.
(iii)Driver never licensed person (section 53(5)) – first offence, with no further penalty.
(iv)Goods in personal custody suspected of being stolen (m/v), and subjected to a community service order 50 hours property to owner.
(e)On 17 January 2013, the Applicant was convicted of the following offences:
(i)Knowingly deal with proceeds of crime, and sentenced to 3 years and three months imprisonment with a non-parole period of two years and two months.
(ii)Goods suspected stolen in/on premises (not m/v), and taken into account on Form 1.
(iii)Knowingly deal with proceeds of crime SI (48 Attempt), taken into account on Form 1.
(iv)Deal with identity info to commit indictable offence, taken into account on Form 1.
(v)Possess identity info to commit indictable offence, taken into account on Form 1.
(f)On 23 June 2010, the Applicant was convicted of the following offences:
(i)Never licensed person drive vehicle on road – 2^nd+ offence, and fined $100 plus court costs of $76.
(ii)Goods in personal custody suspected of being stolen (m/v), and subjected to a 2 year good behaviour bond.
(g)On 17 June 2010, the Applicant was convicted of the following offences:
(i)Never licensed person drive vehicle on road – 2^nd+ offence, and subjected to a 12 month good behaviour bond.
(ii)Use unregistered registrable Class A motor vehicle and fined $600.
(h)On 21 January 2010, the Applicant was convicted of Use unregistered registrable Class A motor vehicle and fined $500.
(i)On 17 September 2007, the Applicant was convicted of Never licensed person drive vehicle on road – 1st offence, and fined $600.
(j)On 20 April 2006, the Applicant was convicted of the following offences:
(i)four counts of make false instrument w/i – value <= $2000, and sentenced to 18 months imprisonment with a non-parole period of 12 months suspended on entering into a good behaviour bond for 18 months on each count.
(ii)Use false instrument w/i and sentenced to 18 months imprisonment with a non-parole period of 12 months suspended on entering into a good behaviour bond for 18 months on each count.

(k) On 6 August 2003, without proceeding to a conviction, the Parramatta Local Court found the Applicant was found guilty of shoplifting value <= $2000 and made an order dismissing the charge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
(l) On 23 May 2003 the Applicant was convicted of Assault occasioning actual bodily harm and sentenced to 12 months imprisonment suspended on entering into a good behaviour bond for 12 months. The Applicant was to accept probation service supervision, ordered to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the probation office within seven days. The Applicant was ordered not to assault, molest, harass or otherwise interfere with the victim or incite any third party to do so.

I am satisfied the Applicant has a substantial criminal record for the purposes of subsections 501(6)(a) when read with section 501(7)(c) of the Act, as the Applicant was sentenced to a term of imprisonment of more than 12 months on multiple occasions.
Consequently, I am satisfied that the Applicant does not pass the character test.
The only remaining issue is whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked, the Tribunal must comply with any Directions made by the Minister pursuant to section 499 of the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to consideration of revocation of a cancellation decision are contained in Part C of the Direction.
Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Subparagraphs 8(3) to (5) of the Direction provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 Colvin J stated at [23]:
“… Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement 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.”
The Tribunal considers that Colvin J’s assessment regarding the various considerations in Direction 65 apply equally to the considerations in the Direction.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable and are to inform the consideration of each of the primary and other considerations.
The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation. The principles in paragraph 6.3 are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)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 only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Summary of evidence of witnesses

The following is a summary of the evidence of witnesses who appeared before the Tribunal. The evidence referred to below includes evidence provided in written statements submitted to the Department and the Tribunal and evidence given by the witnesses at the hearing in response to questions in cross examination and from the Tribunal. The summary also includes information which was in documents before the Tribunal.
The Applicant
The Applicant was born in the Congo in 1971. He arrived in Australia in 2002 at the age of 30. The Applicant claimed that he had left the Congo in late 2001 and spent a few weeks in Thailand before travelling to Australia.
The Applicant claimed that he feared that the “current president”, Joseph Kabila would persecute him if he returned to the Congo. In his affidavit dated 26 April 2019, the Applicant relevantly stated:
“…I have grave concern about returning to the Democratic Republic of the Congo (DRC) based on my previous refugee claims. The only reason I did not provide detail of such fear is that the form provided to me (Personal Circumstances Form) did not have any questions that raised this issue. If it did, I am most certainly would have provided such detail.
My previous partner, [ex-wife’s name] relied upon the consequence of her being the sister of [ex-wife’s brother’s name]. At the time of my arrival in Australia he was a General in the DRC Army, who was part of a dissident group opposing the power of President Kibilla. In the intervening years all of [ex-wife’s name]’s family have been forced to flee the country. I believe the current president, Joseph Kibilla will persecute me, that is I will face serious intimidation and harassment if I am forced to return to DRC. This is because I am seen as a supporter as a previous family member of the [ex-wife’s surname] family. It was General [ex-wife’s brother’s surname] who was part of a group who tried to overthrow the Kibilla Government. I certainly have a very grave fear of return and can provide additional detail.
I have maintained close, significant and continuous support of the four children who are in Australia. My daughter, [eldest daughter’s name] lives in Melbourne with [ex-wife’s name] (now known as [ex-wife’s new name]). She visits me on holidays and I try to support her as much as possible. Previously, I have provided information regarding the constant contact I have had with my three other Australian children from my former partner, [former partner’s name]. It is fair to say I play an important and continuing role in their lives.”
The Applicant’s ex-wife lodged a Protection visa application on 13 March 2002. The Applicant completed a form for the grant of a Protection visa as a member of the family unit of his ex-wife. The form was for members of the family unit of a person who was owed protection obligations, and who had no claims of their own to be a refugee. On 28 August 2002 the Applicant was granted his first temporary Subclass 785 Protection visa on the basis that he was a member of his wife’s family unit. The Applicant indicated that he did not assist in the completion of the Protection visa application form but that he understood that he was making an application for a Protection visa as a member of the family unit of his wife.
On 24 February 2003, the Applicant’s ex-wife applied for a further Protection visa. Again the Applicant applied for a Protection visa on the basis that he was a member of his wife’s family unit. The Applicant indicated that he did not assist in the completion of the Protection visa application form but that he understood that he was making an application for a Protection visa as a member of the family unit of his wife.
On 14 February 2005, the Minister’s delegate purported to refuse the Applicant a Protection visa on the erroneous basis that he had left Australia on 6 February 2005.
On 23 February 2005, Departmental officers, having undertaken investigations, concluded that the Applicant had not in fact departed Australia and decided that the Applicant’s application for a Protection visa had yet to be determined. A Departmental officer wrote to the Applicant on the same day indicating that the Department had set aside the refusal decision.
The Applicant indicated that he separated from his ex-wife in around February 2005. This accords with a statutory declaration reportedly made by the Applicant in 2008 which indicated that the Applicant had found that his wife had been sleeping with his best friend in early 2005, and a record which indicated that the Applicant had attempted to leave Australia in February 2005. At the hearing the Applicant indicated that he had attempted to leave Australia in February 2005 as he was having problems with his ex-wife and she had moved out of the house.
On 26 May 2005, the Applicant was granted a temporary Protection visa on the basis that he was a member of his ex-wife’s family unit. It appears from the evidence, as he had separated from his wife in February 2005, that the Applicant was no longer a part of his wife’s family unit when he was granted a second temporary Protection visa on 26 May 2005.
On 26 May 2008, the Applicant applied for a Protection visa in his own right. His Protection visa claims were as follows:
“Wife’s family was politically active and consequently were persecuted by the Govt. As a result of the marriage, I was also persecuted.
…
I will still be targeted as everyone knows my connection with [ex-wife’s father’s name] who is my wife’s father + my brother in law [ex-wife’s brother’s name].”
On 29 May 2008 a Departmental officer wrote to the Applicant’s representative requesting that the Applicant complete an Australian Criminal History Check form.
On 5 August 2008, the Applicant’s representative sent a letter to the Department outlining the Applicant’s criminal history. Attached to that letter was a statutory declaration from the Applicant, letters of support and documents relating to the Applicant’s then criminal record.
On 28 August 2008 the Applicant was notified by the Department that he had been granted a Class CD Subclass 851 (Resolution of Status) visa. That visa was a permanent visa and is the visa that was cancelled by the Minister’s delegate on 28 May 2018. It does not appear that the criteria for the grant of a Subclass 851 visa included that an applicant is owed protection obligations because he or she is a refugee. The decision record indicates that no consideration was given to this issue in granting the Applicant the visa.
It appears that around the time the Applicant was granted the Subclass 851 visa, he was sent a formal counselling letter by an officer of the Department. That letter relevantly stated:
“The purpose of this letter is to warn you that if you engage in any further conduct that comes within the scope of subsection 501(6) it could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that the consequences of visa cancellation under section 501 of the Act may include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.”
The Applicant claimed that he did not know that he had made an application for Protection visa in 2008. He said that he approached a lawyer about applying for permanent residence. He said that he had told the lawyer that he feared persecution in the Congo as that was the reason that he came to Australia. The Applicant said that he did not remember telling the lawyer about the circumstances of his offending up until that point. He said that he did not remember receiving the counselling letter and did not remember his lawyer telling him about the counselling letter. The Tribunal notes that it is difficult to accept that the Applicant did not know that his criminal history to that point was not a potential impediment to being granted a visa. That is because the Applicant made a statutory declaration dated 5 August 2008 which outlined his criminal offences. Even if the Tribunal accepted that the Applicant is illiterate and could not have produced a statutory declaration by himself, he would have had to tell his lawyer about the circumstances of his offending as they were contained in his statutory declaration and the Applicant’s lawyer’s letter to the Department dated 5 August 2008.
The Applicant was taken in to criminal custody on 29 June 2011. He was convicted of five offences on 17 January 2013 and sentenced to 3 years and 3 months imprisonment with a non-parole period of 2 years and 2 months commencing on the date he was taken into criminal custody on 29 June 2011. He was eligible for parole on 28 August 2013.
Prior to his release, the Department sent the Applicant a Notice of Intention to Consider Cancelling his Visa under subsection 501(2) of the Act on 7 August 2013.
It appears that the section 501 decision maker had before them a Personal Details form which was completed by the Applicant with the assistance of another detainee. It appears the decision maker also had before them an Immigration Report made by the Probation and Parole Service of Corrective Services New South Wales. The Applicant also caused to be provided to the Department a letter signed by him on 10 September 2013. On 13 February 2014, the Minister’s delegate found that the Applicant failed to pass the character test but the Minister’s delegate decided to exercise his discretion not to cancel the Applicant’s visa. By letter of 14 February 2014 the Applicant was notified of this decision. That letter relevantly provided:
“Please note: this decision does not mean that your case cannot be considered again under s501 in the event of further criminal offending by you.”
The Applicant claimed that he had no recollection of receiving the letter of 14 February 2014 notifying him that the Minister’s delegate had decided not to cancel his visa but warning him of the possibility of visa cancellation should he continue to offend.
Subsequent to receiving the second warning letter, the Applicant continued to offend, being convicted of 8 further offences before the courts on four occasions.
On the last occasion on which the Applicant was convicted of offences, on 19 March 2018, the Applicant was convicted of three offences and sentenced to a total effective sentence of 12 months imprisonment with an eight month non-parole period. On appeal, on 29 May 2018, the effective sentence was varied to a total effective sentence of 10 months imprisonment with a five month non-parole period.
On 28 May 2018, a day before the Applicant’s sentences were varied on 29 May 2018, the Minister’s delegate cancelled the Applicant’s visa under section 501(3A) of the Act. On 31 May 2018, the Applicant sought for the cancellation decision to be revoked. On 25 June 2018, the Applicant provided a handwritten letter to the Department in response to the Department’s letter of 28 May 2018 notifying the Applicant of the cancellation of his visa. On 30 July 2018, the Applicant submitted to the Department a Personal Circumstances Form in which he provided further information to the Department in support of his request for the revocation of the cancellation decision.
In the Personal Circumstances Form the Applicant provided information about his children, the mothers of his children, the relationship he had with his children, the effect of cancellation on his children, his mother and siblings in the Congo, his criminal history and risk of reoffending, his employment history in Australia and his medical ailments. However, the Applicant did not raise any fear of harm in the Congo if he had to return there despite specific questions in the form inviting such claims.
In the Personal Circumstances Form, there was a question which asked “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” The Applicant did not provide an answer to that question. The form also contained the question “Are there any other problems you would face if you have to return to your country of citizenship?” Again the Applicant did not provide an answer to that question. The form contained the question “Please outline any other information you would like the Minister or delegate to consider when making their decision.” The Applicant did not provide an answer to that question.
It appears that the Applicant was taken into immigration detention immediately upon his release from criminal detention on 19 August 2018.
On 7 December 2018, a Departmental officer wrote to the Applicant inviting the Applicant to comment on a New South Wales Police Fact Sheet outlining allegations which resulted in his convictions on 19 March 2018 and his subsequent varied sentence imposed on 29 May 2018.
The Applicant sent two letters in response on 24 December 2018. It appears that, in relation to the Applicant’s offending, the letters from the Applicant were only responsive to his most recent offending for which he was convicted on 19 March 2018.
On 21 February 2019, the Minister’s delegate refused to revoke the decision of 28 May 2018 to cancel the Applicant’s visa. On 22 February 2019, the Applicant applied to this Tribunal for review of that decision.
The Applicant had been directed by the Tribunal to file any further evidence and written contentions by 25 March 2019. The Applicant failed to do so.
The Respondent filed written contentions on 9 April 2019. In those contentions the Respondent indicated that the Applicant had not claimed to fear harm on return in his application for review and that, subject to any such claims being raised, the Tribunal did not need to engage with the question of non-refoulement.
On 25 April 2019, Mr Adrian Joel, a solicitor who subsequently notified the Tribunal on 29 April 2019 that he acted for the Applicant, filed written contentions on behalf of the Applicant. In those contentions, the solicitor raised for the first time in the process of the cancellation of the Applicant’s visa and subsequent non-revocation, that the Applicant feared persecution in the Congo.
The Respondent subsequently filed a large volume of material with the Tribunal which was said to be relevant to the non-refoulement claim.
On 30 April 2019, the Applicant filed further written contentions.
On 1 May 2019, the day before the hearing, both the Applicant and the Respondent filed written submissions in relation to the Applicant’s claims relating to Australia’s international non-refoulement obligations.
The Applicant claimed that he had four children in Australia who would be greatly adversely affected if he was removed from Australia. At the hearing the Applicant indicated that his eldest child in Australia was his daughter to his ex-wife who was 16 years of age. That daughter lives in Melbourne with her mother and her mother’s husband. That daughter wrote a letter to the Tribunal in support of the Applicant in which she indicated that she was 17 years of age. At the hearing, the Applicant indicated that he had three children to a former partner. He indicated those children were aged 15, 11 and 7. In the Personal Circumstances Form that the Applicant completed in July 2018 he indicated that these children were 12, 10 and 8 years of age. In the letters to the Department which he sent in December 2018, the Applicant indicated that these children were 12, 9 and 7 years of age. For the purpose of these proceedings, the Tribunal is willing to accept that the Applicant has a 17-year-old daughter in Australia and three other children between the ages of 15 and 7.
The Applicant has provided evidence that he maintains a close relationship to all four of his Australian children. The Applicant said that prior to his last period of imprisonment in March 2018, his eldest daughter in Melbourne would visit him during the holidays. She later gave evidence that the last time she had seen the Applicant in person was during the Christmas holidays in late 2016.
The Applicant claimed that prior to his imprisonment in March 2018 he had spent time with his three younger children every weekend. He said that they would go on excursions including going to the cinema. The Applicant said that since he entered immigration detention on 19 August 2018, he has been visited by his three younger children on two occasions. He says that he speaks with each of his three younger children by telephone almost every day.
The Applicant said that on the last occasion that he was visited by his former partner and his three younger children, about four weeks prior to the hearing, he had an argument with his former partner and the children had not visited since. However, the Applicant claimed that he maintained telephone contact with the children every evening. The Applicant said that his former partner had not written a statement in support of him as they had fallen out after the argument and that she could not “write properly.”
The Applicant said that his eldest daughter knew about his criminal record and that he was being held in immigration detention. He said that his three younger children did not know that he had a criminal record, that he had been to jail or that he was being held in immigration detention. He had told his younger children that he was in hospital and they believed that when they had visited him in immigration detention that they were visiting the Applicant in hospital.
The Applicant told the Tribunal that he would be permanently separated from his children if he was removed from Australia. He said that he would be unable to visit his children in Australia and they would not visit him in Africa as they had never been there. The Applicant also suggested that it was dangerous for both himself and the children in Africa.
The Applicant indicated that all of his children would be severely emotionally affected if he was permanently separated from them. He indicated that he would also be severely emotionally affected if he were separated from his children.
The Applicant indicated that in the past he had provided what financial support that he could for all of his children including assisting in paying the children’s school fees. He said that since he had been detained he had been unable to provide financial support for his children. He said that, as a result, his former partner had to take on additional employment. The Applicant indicated that this had meant that his three younger children were often left alone in their home while their mother works. The Applicant indicated that this was bad for the children.
The Applicant explained that after his arrival in Australia he started a hairdressing business in Parramatta. However, he explained that this business had not been in operation since 2013. The Applicant said that he had employed one other person in his business. He said that she was an Australian citizen of African descent. The Applicant claimed that he paid his employee but that no tax was paid on her earnings.
The Tribunal notes that in the statutory declaration that the Applicant made on 5 August 2008, he claimed that he and his ex-wife had started a beauty salon in 2002 but that this business had closed after a year. In the sentencing judge’s remarks from January 2013, the sentencing judge indicated that the business had re-opened in 2008. In the handwritten letter that the Applicant had provided to the Department on 25 June 2018, the Applicant indicated that he owned a hairdressing business in which he employed two Australians a full-time basis. He indicated that if he was removed from Australia that those two Australian employees would lose their employment. On the Personal Circumstances Form which the Applicant completed on 30 July 2018, the Applicant indicated that he owned a beauty salon in which he had worked as a barber for 15 years. At the hearing, the Applicant indicated the business had closed in 2013 and that he had told the Department that the business was still operating and that he employed two Australians a full-time basis because he thought that this may prevent him from being removed from Australia. That is, at the hearing, the Applicant admitted that he had lied to the Department in relation to his employment and ownership of a business in order to improve his chances of remaining in Australia.

The Applicant said that he has been receiving Government welfare benefits and that he has been doing odd jobs on a “cash in hand” basis. The Applicant gave examples of these jobs as including painting and loading shipping containers. The Applicant indicated that he did not pay tax on the income that he earned even though he knew that this was an improper way of operating for tax purposes.
The Applicant indicated that he was illiterate and that all of the various statements made, and forms completed which were provided to the Department over the years had been completed by other people. For the most part, the Applicant said that he could not remember who had assisted him in writing the statements or completing the forms. He said that, the statements had been made, and the forms completed, by him telling the assisting person what to write and that the assisting person would then write the statement or complete the form.
The Applicant indicated that his mother, two brothers and three sisters were currently living in the Congo. He said that he maintained contact with his mother and his siblings by telephone. The Applicant said that he had been providing financial assistance to his mother and one of his sisters in the Congo. The Applicant said that his mother lived in Kinshasa and his siblings were dispersed in the Congo.
In the handwritten statement provided to the Department on 25 June 2018, the Applicant had indicated that he had no close ties to anyone in the Congo. He said that if he returned to the Congo he would not have a job or any place to live. In one of the letters that the Applicant provided to the Department on 24 December 2018 the Applicant indicated that he had no contact with anyone in the Congo since he moved to Australia in 2002 and that he was unaware of the whereabouts of his family in the Congo. The Applicant had stated that if he were to return to the Congo, he would not have a place to live, have no work, would not know his way around, that he did not speak the language and did not know about social security or the health system in the Congo. He said that in the Congo he would have no community and nothing to look forward to.
When these inconsistencies were raised with the Applicant he said that the information contained in his statements to the Department must have been made by mistake.
The Tribunal asked the Applicant why he could not live with his mother or one of his siblings if he were to return to the Congo. The Applicant indicated that there may not be room for him as they may have families. When the Tribunal asked the Applicant whether they did in fact have families, the Applicant indicated that that none of them had families as they had no employment. He then said that one of his sisters had children.
The Tribunal indicated to the Applicant that he had said that he faced persecution in the Congo because his ex-wife’s brother and father had been involved in opposition to the government. The Tribunal indicated that the Applicant had said that in Africa the people looking to harm an adversary would also seek to harm all members of the adversary’s family. That was the basis upon which the Applicant claimed that he would be harmed. The Tribunal pointed out that the Applicant had admitted that none of his family had been harmed or threatened by the government in the Congo. The Applicant appeared to indicate that this was because his family members had disbursed within the Congo to avoid harm.
The Applicant indicated that his ex-wife’s brother was involved in an attempted coup against the government in 2000 and yet he and his wife remained in the country until the end of 2001.
The Tribunal asked the Applicant why he feared that he would be harmed by the government if he returned to the Congo. The Applicant said that he would be harmed because the government knew that he had been married to the sister of someone who had attempted to overthrow the government. He said that although he had been separated from his ex-wife since 2005, the government did not know that he had been separated from his ex-wife.
The Tribunal summarised the offences that the Applicant had committed and asked the Applicant how the Tribunal could be satisfied that he would not continue to offend.
The Applicant said that he had been negligent, stupid and naive. The Applicant said that if he were allowed to remain in Australia that he would attempt to pass a driving test in order to be granted a driver license. The Tribunal pointed out that the Applicant had claimed that he was illiterate and that he had said that he thought that the driver license test could only be completed if a person was illiterate. The Tribunal asked the Applicant how he could expect to pass the driver license test if he was illiterate. The Tribunal pointed out that the Applicant may take years to learn to read and write sufficiently to pass the driver license test.
The Applicant indicated that he would not drive unless he had passed the driver license test. The Tribunal asked the Applicant why it should accept that the Applicant would not drive again without a license. The Applicant said that he would not do so because what he had done in the past was now affecting him and his children emotionally and mentally. He said that he did not want to continue to go through what he had been through or to put his children through this again.
The Tribunal pointed out that while the Applicant said that he was naive or negligent in continuing to drive without a license, he was almost 50 years old and he had been committing offences since he arrived in 2002 and had done so until late 2017, shortly before he was imprisoned in March 2018. The Tribunal also pointed out that the Applicant had been warned twice previously that any further offending could result in the cancellation of his visa and yet he continued to offend. The Applicant indicated that he never considered that his visa would be cancelled if he continued to offend and that he could not recall having received any warnings about this from the Department.
The Tribunal pointed out that, prior to his most recent period in prison and immigration detention, the Applicant had been on welfare benefits and doing odd jobs. Given that the Applicant was likely to face financial pressures if he remained in Australia, the Tribunal asked the Applicant why it should be satisfied that he would not continue to commit fraud -related offences or other crimes of dishonesty. The Applicant said that he would not do so as his children were getting older. He said that he did not want his children to know that their father had been involved in criminal activity and did not want to be separated from his children again.
The Tribunal pointed out that the Applicant has had children for many years and that this never deterred him from continuing to commit offences in Australia. The Applicant said that he had not committed crimes of dishonesty for a long time and that his recent crimes were just traffic offences. The Tribunal pointed out that the Applicant’s recent offences were not limited to simply driving without a license but that he had provided the police with false identification, false driver licenses and had told the police lies.
The Applicant admitted that this was the case and asked the Tribunal to give him a chance to remain in Australia. He said that he never knew that his offences would potentially have the consequence of him being removed from Australia. He said that he now understood that if he commits further crimes he may be removed from Australia and separated permanently from his children. The Applicant said that he had not previously understood the gravity of his offences. The Applicant said that if he is removed from Australia his life would be in danger. In addition, he said that if he is removed from Australia this will have a severe negative impact on his children.
The Tribunal indicated that it had some difficulty believing that the Applicant had not understood that if he kept on offending, his visa would be cancelled. The Tribunal said that this was especially so given that the Applicant had been warned twice previously of this by the Department. The Tribunal indicated that if the Applicant understood that his visa could be cancelled if he continued to offend and he continued to offend notwithstanding that he knew that his visa could be cancelled, this may indicate that the Applicant did not fear returning to the Congo. The Applicant indicated that he had never received the warnings from the Department that reoffending may lead to the cancellation of his visa and his removal from Australia.
The Applicant said that life in Africa was very difficult. He said there were three types of people in Africa who could make a good living. He said that these were politicians, criminals and pastors. He said that everyone else in Africa who had the option to leave Africa would do so.
The Applicant said that other than his children, he did not have close relationships with many others in Australia. He said that he was not good at making friends, that he was not a popular person and liked to keep to himself. The Applicant said that he had a couple of friends but that he would not share the negative happenings in his life with his friends. He said that he was embarrassed to do so. The Applicant said that the African community in Sydney would gossip and would look down on him if they knew that he had been committing crimes and had been held in immigration detention. The Applicant said that he did not ask his friends to provide letters of support in these proceedings because he did not want them to know that his visa had been cancelled as it was embarrassing. Similarly, he said that he had wanted his eldest daughter to travel to Sydney to give evidence at the hearing, but he said that if she had come to Sydney, the African community in Sydney would discover that he had committed crimes and had his visa cancelled.
The Tribunal indicated that this raised the concern that the Applicant may not fear harm in the Congo as it appeared that he would rather return to the Congo then suffer the embarrassment of the African community in Sydney discovering that he had committed crimes and had his visa cancelled. The Tribunal asked the Applicant whether he wanted to comment on this concern and he indicated that he did not.
The Applicant insisted that he had never considered that the Department may cancel his visa as he “was not doing nothing bad.” While the Applicant said that he accepted that he had committed offences, he did not consider that they were of sufficient seriousness to warrant cancellation of his visa and his removal from Australia. He said that he was not a rapist, killer or a drug dealer. He said that the domestic violence offence was “nothing”. He said “besides fraud, it was driving no license. That issue, you can’t cancel my visa for driving no licence.” The Applicant said the following in response to a question by the Respondent’s solicitor:
“My friend, you cancelling someone’s visa, someone who got children, children that born to Australian citizen children, to send me to Congo. My children, they call you father all their life, they can’t see their father. You got sense, what you talking about someone visa who got children, he is not a criminal, he is not a killer, he’s not a raper, he is not a drug dealer, because he drive no license, my friend, because one – no - human rights is not working for this country.”
The Respondent’s solicitor indicated to the Applicant that he had claimed to fear harm if he returned to the Congo from President Kabila and his government. The Respondent’s solicitor asked the Applicant a question as to the identity of the current president of the Congo. The Applicant answered “Tshisekedi”.
The Applicant claimed that he suffered from diabetes and depression and claimed that it would be unlikely that he would be able to afford medical treatment and medication if he were to be returned to the Congo. The Applicant claimed that he could die if he did not receive appropriate medical treatment and medication.
Applicant’s ex-wife
The Applicant’s ex-wife had provided two statements to the Tribunal in support of the Applicant. The first statement was made on 5 April 2019. That statement focuses almost entirely on the relationship between the Applicant and their daughter and the potential effect on their daughter if the Applicant were to be removed from Australia. That statement provided:
“I, [ex-wife’s name] writing this letter as support to [the Applicant] my daughter’s father who has been arrested for one year and almost 4 months at the detention centre in Sydney in the position visa cancellation and deportation to the country of origin (Congo DRC).
[The Applicant] has been very involved and supportive to her daughter [daughter’s name] life. He recommended to find a good Christian private high school for her education and promised to be responsible for it.
In the past years, he was contributing with her school fees and others daughter’s need. They have a strong relationship. [Daughter’s name ] goes for weekends sleep over, and spend good time on school holiday with him and her siblings. I have been observing and seeing how much the situation has a terrible negative impact on [daughter’s name].
[Daughter’s name] has been worried and affected in the fact that she was unable to see the father, or talk to him in a regular basis, he was unable to support with the school fees last and this year which has become a burden to me. Her learning performance even her behaviour has been changed, she has been so quiet and isolating herself lately, especially at home. Her biggest fear is asking herself “what is going to happen to him? And what is going to happen to us?” (referring to her siblings).
I believe that everyone deserves a second chance, for the sake of his children, he deserves a second chance. As responsible, as parents please consider this matter before taking any decision. Every child needs both parents, especially the younger ones. Today if is not around it will affect [daughter’s name] and younger siblings morally, mentally as well as financially.”
In the second statement dated 26 April 2019, the day after the Applicant’s solicitor provided written contentions to the Tribunal, the Applicant’s ex-wife stated:
“…The previous refugee claims that were made were based upon my brother, [brother’s name] who lives in France. He was a former General in the DRC (Congo) army. He was part of an opposition group who tried unsuccessfully to challenge the power of President Kibilla.
As a consequence the government has persecuted my family and it is true to say such persecution has been life-threatening. All members of my family have been forced to flee the DRC. President Kibilla’s son, Joseph is the current President.
If [the Applicant] is forced to return to the DRC he faces a continuing, serious threat, as the current government of DRC will not hesitate to eliminate any opposition.
If necessary and I can and will provide additional details, but the threat against us certainly continues.
[The Applicant] maintains constant contact with our daughter, [daughter’s name] - at least on a weekly basis. She visits and stays with him during school holidays and they share a very close relationship and he has tried to financially provide when he can. Given how close they are, I think she would be deeply upset if she lost her father’s support.”
The evidence of the Applicant’s ex-wife at the hearing was largely consistent with the evidence provided in her statements.
Applicant’s eldest daughter
The Applicant’s eldest daughter gave evidence to the Tribunal by telephone from Melbourne. About a week before the hearing, she made a statement which she had submitted to the Tribunal. That statement read:
“My name is [daughter’s name], born on the [daughter’s birthday]. I am turning 17 this year and currently a year 11 VCE student. I am also the first daughter of [the Applicant].
The purpose of this letter is to show my support against my father’s deportation back to Congo (DRC). My father’s absence has already had a tremendous negative impact on my life, although not seen from the surface. Without knowing I didn’t really know how much this overwhelming situation was affecting me until I started seeing a psychologist. And hadn’t realised how much it was weighing me down on top of school work. For the past year and a few months, I have not been able to see him and my siblings during the school holidays, and the situation is obviously not getting any better.
If my dad was to be deported back to the Congo, emotionally I really don’t know how I would cope. As would any child. So far, I have pushed my fears and worries to the side as if knowing that it was surely going to work out and that there was just some kind of misunderstanding. However, if otherwise I have no idea how I would handle myself. Just the thought of it alone makes my heart ache. I make regular phone calls with him and it makes me sad to see him back at square one. I also make regular calls with my three half siblings located in Sydney, holding back tears when they ask questions about Dad’s situation, it hurts to see how evident the impact has been on them.
The little things like, taking them out during the holidays hasn’t been a promised option because “Mum is at work”. As an older sister to six children it really pains me to see the effect on them because of my father’s absence. One thing I learned from seeing the psychologist, is that at times I feel responsibility to check on the oldest of the three, who is in year 8. The thought of her hiding her feelings, and not having anyone to openly share with scares me because it has held me for many years.
My dad has been a supportive system for many personal things and was also supported in the best way he could financially. However, since his absence it has added extra burden not only on my mother and step father, but also on my stepmother, thus why she is always working.
Last year I wrote a similar letter, concerning again the act of taking away my father’s visa. One of the many things I talked about is how he SHOULD be there for the upbringing of his children, no matter if they are a teenager or still a child. Last year I was in year 10 and in writing that letter I was furious and knew that it was just a matter of time till he came out, a year later now in year 11. I had gotten my L’s license, opened my first ever bank account and card, started working, got baptised, achieved many school awards and performed in many events. It’s disappointing to know that he had to be told this over the phone while he was in a detention centre.
This time writing this I’m filled with agonising emotions, I have one more year of high school till I graduate, and the stress has already started creeping up. The second term has just started and to be honest I haven’t been holding up very well, this is a worry for my school and parents. I pray that my father will be here to see my graduation but also my siblings, and I also pray that in the next few days that my father will walk out of his hearing a free man, and able to see his children and I far from detention centre and very very far from deportation.”
The Applicant’s eldest daughter’s evidence during the hearing for the most part echoed the evidence contained in her statement. She indicated that she had a very close relationship with her father and would be devastated if he had to return to the Congo. She also indicated that her father had a close relationship with her three half-siblings. She expressed some concern that if her father departed that this may affect her ability to continue to spend time with her half-siblings.
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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.
The nature and seriousness of the Applicant’s conduct to date

[2019] AATA 933

16 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction