KPYK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 81
•27 November 2024
KPYK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 81 (27 November 2024)
Applicant/s: KPYK
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/6800
Tribunal:General Member K. Thornton
Place:Melbourne
Date:27 November 2024
Decision:The Tribunal affirms the decision under review.
...................[SGD]...................
General Member K. Thornton
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class WC Subclass 030 Bridging C 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. 110 –– decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Children, Youth and Families Act 2005 (Vic)
Migration Act 1958 (Cth)Cases
Attorney-General of the Commonwealth v CZA19 & Ors; Attorney-General of the Commonwealth v DBD24 & Ors [2024] HCATrans 46 (31 July 2024).
BOE21 v Commonwealth of Australia [2024] FCA 709;
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
IXW24 v Commonwealth of Australia [2024] FCA 1328
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162Secondary Materials
Administrative Review Tribunal Guideline on Persons Giving Expert and Opinion Evidence dated October 2024
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
Introduction
The Applicant is a 39-year-old citizen of Malaysia who came to Australia on a three‑month visitor visa on 7 August 2012 when he was 27 years old.[1] The Applicant overstayed that visa and remained in Australia illegally. On 18 July 2019, the Applicant applied for a Protection (Subclass 866) visa.[2] On 23 July 2019, the Applicant was granted a Class WC Subclass 030 Bridging C visa.[3] On 5 August 2019, the Applicant’s application for a Protection visa was refused.[4]
[1] Exhibit R1, 70, 142.
[2] Ibid 143.
[3] Ibid 153, 125.
[4] Ibid 143.
The Applicant’s Bridging C visa was mandatorily cancelled by a delegate of the Respondent on 29 March 2023 because he did not pass the character test.[5] On 13 and 14 April 2023, the Applicant made a request to the Minister to revoke the mandatory cancellation decision.[6]
[5] Ibid 14.
[6] Ibid 14, 81.
On 4 September 2024, a delegate of the Respondent decided not to revoke the original cancellation decision.[7] The Applicant was notified of this decision on 5 September 2024.[8] On 9 September 2024, the Applicant lodged an application for review of that decision with the former Administrative Appeals Tribunal (AAT).[9] The Applicant has asked the Tribunal to review the non-revocation decision. The non-revocation decision is reviewable by the Administrate Review Tribunal pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act).
[7] Ibid 12.
[8] Ibid 9, 214.
[9] Ibid 1.
In the Applicant’s case, the cancellation of his visa was mandatory. Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and the person is serving a sentence of imprisonment on a full-time basis for an offence against a law of the Commonwealth, a State or Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have a ‘substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a ‘substantial criminal record’ if they have ‘been sentenced to a term of imprisonment of 12 months or more.’
On 2 November 2022, the Applicant was sentenced by the County Court of Victoria to one charge of Trafficking a Drug of Dependence in a Large Commercial Quantity, which is an offence under Victorian law. The Applicant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of three years. While he was serving that sentence, a delegate of the Respondent mandatorily cancelled the Applicant’s Bridging C visa on 29 March 2023 because he did not pass the character test and he was serving a sentence of imprisonment on a full-time basis (‘the cancellation decision’). The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.[10]
[10] Section 501CA(3)(b).
The Minister may revoke a mandatory visa cancellation decision under s 501CA(4) 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.
From 14 October 2024, the AAT ceased operation and the Administrative Review Tribunal (the Tribunal) commenced. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
Tribunal hearing
The hearing of this application took place in person on 18 and 19 November 2024. The Applicant was represented by Mr Min Gao of counsel, instructed by Victoria Legal Aid. The Respondent was represented by Mr Adam Cunynghame of Sparke Helmore Lawyers. The Applicant was assisted at the Tribunal hearing by a Mandarin interpreter.
The Applicant gave evidence in person through an interpreter, as did his de facto partner. The Applicant also called evidence from forensic psychiatrist Dr Adam Deacon via video. The Tribunal received into evidence from the parties a Joint Tender Bundle comprising 401 pages, the Applicant’s Outline of Submissions, the Applicant’s Submissions in Reply and the Respondent’s Statement of Facts, Issues and Contentions.[11] The Respondent also sought to rely on a subpoenaed document from Victoria Police titled ‘Statement of Material Facts.’ The Applicant objected to the tender of this document on the basis that the document contained immaterial and irrelevant information that was not before the sentencing judge, relying on the principles in HZCP v Minister for Immigration and Border Protection.[12] The Tribunal upheld the Applicant’s objection on the basis the document contained extraneous information that was not referred to by the sentencing judge. The Tribunal did not have regard to this document when making its decision.
[11] Exhibits R1, A1, A2 and R2 respectively.
[12] (2019) 273 FCR 121.
HAS THE APPLICANT PASSED THE CHARACTER TEST?
The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ as defined by s 501(7) of the Act, as he was sentenced to a term of imprisonment of more than 12 months on 2 November 2022. He therefore does not pass the character test in s 501(6)(a) of the Act.
The issue to be decided by this Tribunal is whether there is ‘another reason’ why the original decision should be revoked.
IS THERE IS ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In applying 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 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non‑citizen’s visa, paragraph 5.2 of the Direction contains eight principles which provide the framework for decision‑making to revoke a mandatory cancellation under section 501CA:
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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
7Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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.
8The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, the Tribunal must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 of the Direction says:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3One 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 when making its decision:
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia;
5expectations of the Australian community.
Paragraph 9 of the Direction sets out the Other considerations which must also be taken into account, where relevant. These considerations include (but are not limited to):
1legal consequences of the decision;
2extent of impediments if removed;
3impact on Australian business interests.
Primary consideration 1: Protection of the Australian community
For this primary consideration, paragraph 8.1(1) of the Direction says that decision‑makers should keep in mind that:
the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction says 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 conduct
In assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, the Tribunal has considered the following matters listed in paragraph 8.1.1(1) of the Direction:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision‑maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non‑citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non‑citizen was taken into immigration detention again, 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)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);
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
On 6 September 2022, the Applicant entered a plea of guilty to one charge of Trafficking in a Drug of Dependence in a Large Commercial Quantity in the County Court of Victoria.[13] On 6 November 2022, the Applicant was sentenced to a term of imprisonment of four years and six months with a non-parole period of three years’ imprisonment. The charge of Trafficking in a Drug of Dependence in a Large Commercial Quantity carries a maximum penalty of life imprisonment.[14]
[13] Exhibit R1, 236.
[14] Ibid 237.
The Applicant was part of a large syndicate involved in the manufacture of methylamphetamine across three residential properties in Melbourne. The syndicate comprised of three general roles as follows:[15]
(a)Syndicate heads who arranged for the importation of equipment and chemicals, leasing of properties where the manufacturing process could take place and distribution of equipment and chemicals to be used in the manufacturing process;
(b)Cooks or workers whose task was to manufacture the methylamphetamine in the rented properties; and
(c)Syndicate members who were used to move, control and deal with the proceeds derived from the sale of the drugs that had been manufactured.
[15] Ibid 240-1 [23].
The Applicant’s role was confined to the manufacture of methamphetamine at one of the properties between 10 November 2019 until his arrest on 10 February 2020.[16] The Applicant resided at this property with his de facto partner and two young children. His de facto partner was also a co‑accused in this operation.[17]
[16] Ibid 241 [26].
[17] Ibid 239 [13].
The amount of methamphetamine found at the property where the Applicant was residing was over twelve times the large commercial quantity prescribed for that drug, the threshold being 500 grams.[18] The methylamphetamine found at this location was the most valuable of the three clandestine laboratories and included more finished product with an average purity of between 75 and 80 per cent.[19] The prosecution alleged that the value of methylamphetamine if sold per kilogram was between $697,921 and $921,000, between $838,400 and $1,000,067 if sold per ounce and between $2,437,890 and $3,323,865 if sold per gram.[20]
[18] Ibid 245 [50].
[19] Ibid.
[20] Ibid 246 [53].
The sentencing judge described the Applicant’s offending as ‘most serious due to the quantity of methamphetamine that (he) trafficked, its purity, and the protracted period of offending in which (he) engaged in the offending.’[21]
[21] Ibid 245 [49].
In sentencing the Applicant, the sentencing judge had to balance the mitigating factors in the Applicant’s favour against the need to impose a sentence which was just in all the circumstances.[22] A strong factor in mitigation was the undertaking given by the Applicant to give evidence against his co-accused.[23] The prosecution accepted that the Applicant’s level of assistance, as reflected in his comprehensive statement, was ‘substantial’.[24] It was accepted by the sentencing judge that by assisting authorities, the Applicant has put himself at ‘great risk.’[25] The sentencing judge also took into account the Applicant’s lack of prior convictions, his expressions of remorse and his good behaviour whilst in prison.[26]
[22] Ibid 253-4 [82].
[23] Ibid 254 [83].
[24] Ibid.
[25] Ibid 254 [84].
[26] Ibid 253 [82].
The sentencing judge noted that other syndicate members involved at the same level as the Applicant were sentenced more sternly.[27] The sentencing judge however imposed a ‘very substantial discount’ in the sentence that the Applicant would have otherwise received as a result of the Applicant’s undertaking to assist authorities.[28]
[27] Ibid 254 [88], 255 [92].
[28] Ibid 257 [105].
In the Applicant’s Outline of Submissions to the Tribunal under the heading ‘Protection of the Australian community’, the following submission was made:[29]
KPYK anticipates a predictable submission from the Minister that the offending was “serious”. That has never [been] disputed, but it takes things nowhere. It is not what this case is about.
[29] Exhibit A1, [12].
The Respondent contends that the offending is ‘objectively very serious and its impact on the Australian community should not be understated.’[30] The Respondent also noted that the term of imprisonment imposed upon the Applicant should be viewed as a reflection of the ‘objective seriousness of the offences involved.’[31] The Respondent submitted that a sentence of four years and six months’ imprisonment reflects the ‘very serious nature of his offending’ when taking into account the Applicant’s lack of prior convictions and the significant discount afforded to the Applicant for undertaking to assist in the prosecution of his co-accused.[32]
[30] Exhibit R2, [30].
[31] Ibid [32].
[32] Ibid.
At the hearing of this matter, the Applicant indicated to the Tribunal that he didn’t cavil with an assessment of the offending being described as ‘very serious.’
The Tribunal has noted the sentencing judge placed strong weight on general deterrence in a bid to deter others from offending as the Applicant has, and to impose a punishment which strongly denounces the Applicant’s conduct.[33] As noted by the Respondent, sentences of imprisonment are the last resort in the sentencing hierarchy.[34] The Tribunal has taken this into account when considering 8.1.1(1)(c) of the Direction.
[33] Exhibit R1, 254 [82].
[34] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The Tribunal has had regard to the remaining paragraphs of 8.1.1(1) and notes that the Applicant is a first-time offender with no prior or subsequent convictions. Although the Applicant’s offending was protracted (occurring over a three-month period), the Tribunal accepts that there have been no prior convictions until the commencement of this offence on 10 November 2019 when the Applicant was 34 years of age.
The Tribunal has considered the matters the parties’ submissions and the objective factors relevant to this offending as outlined by the sentencing judge and repeated at paragraph 25 of these reasons. Having regard to all of these circumstances, the Tribunal is of the view that the Applicant’s criminal conduct should appropriately be viewed as very serious.
The Tribunal is of the view that this factor weighs heavily against revocation of the original cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states that in considering the need to protect the Australian Community from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[35]
[35] Paragraph 8.1.2(1) of the Direction.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.[36]
[36] Paragraph 8.1.2(2) of the Direction.
There is no statutory constraint on the way in which risk is to be assessed by the decision‑maker other than that there must be a rational and probative basis for the assessment.[37]
[37] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
In regard to risk, the Applicant submitted that his risk of recidivism is low.[38] To that end, the Applicant relied upon the findings of the sentencing judge.[39] The sentencing judge assessed the Applicant’s prospects of rehabilitation as being ‘very good’ and placed ‘minimal weight on specific deterrence and protection of the community.’[40] The Applicant, again relying upon HZCP v Minister for Immigration and Border Protection, submitted that ‘[t]here is no legal authority for the Tribunal to unpick those findings’.[41]
[38] Exhibit A1 [14].
[39] Ibid [13].
[40] Exhibit R1, 254-5 [82].
[41] (2019) 273 FCR 121; Exhibit A1 [13].
To the contrary, the Respondent relied upon paragraph 8.1.2(1) of the Direction and submitted that this is a case ‘where the risk of harm is so serious that any risk of reoffending is unacceptable’.[42] The Respondent relied upon the Applicant’s involvement in a ‘complex criminal operation which had the capacity to facilitate other offenders in the community by supplying them with illicit substances.’[43] The Respondent submits that large parts of the Australian community would be exposed to the flow-on effects of widespread drug use if the Applicant were to reoffend in this way.[44] It is submitted that the magnitude of the potential harm is such that any risk of it eventuating is unacceptable.[45]
[42] Exhibit R2 [35].
[43] Ibid.
[44] Ibid.
[45] Ibid.
In making this submission, the Respondent relies on an assessment by a clinical psychologist on 24 April 2022 which assessed the Applicant’s prospects of rehabilitation as ‘moderate.’[46] The Applicant submitted that the April 2022 assessment is not in evidence, and in any event the opinion was that of a clinical psychologist rather than a forensic psychologist, and that because the ‘unnamed clinical psychologist’ is not being called by the Respondent to give evidence, the Applicant submits that ‘the Minister’s submission cannot lawfully be accepted by the Tribunal.’[47] The Applicant submits that is because the sentencing judge made a finding that his prospects of rehabilitation are actually ‘very good’ and that this finding binds the Tribunal.[48]
[46] Ibid [37].
[47] Exhibit A2 [3].
[48] Ibid [3].
The Applicant invited the Tribunal to rely on the ‘up-to-date forensic assessment’ from Dr Adam Deacon, forensic psychiatrist.[49] Dr Deacon prepared an expert report for the Tribunal dated 5 November 2024.[50] Dr Deacon also appeared to give evidence on behalf of the Applicant. In preparing his report, Dr Deacon interviewed the Applicant, with the aid of an interpreter, over two sessions in early November 2024. The Applicant provided a personal history to Dr Deacon and detailed the nature of his relationship with his de facto partner and two children. The Applicant also gave an account of the offending conduct for which he was convicted. He also provided an account of his experience in prison and in immigration detention and spoke of his future plans. Those plans included living with his de facto partner and resuming work as a plasterer.[51]
[49] Ibid [4].
[50] Exhibit R1, 316.
[51] Ibid 317-22.
In assessing the Applicant’s risk of reoffending, Dr Deacon administered a tool known as the ‘Level of Service/Case Management Inventory: An Offender Assessment System’ (LS/CMI).[52] Dr Deacon reports that this tool ‘is the most frequently used actuarial scale for the prediction of general recidivism internationally, and that it has been validated with men, women, adults, adolescents, incarcerated persons, and persons on parole’.[53] He explains further that ‘[t]he LS/CMI is a standardised offender classification scale that covers the majority of the best-established predictors of general criminal conduct comprising eight broad risk domains that have all demonstrated predictive validity.’[54] Those eight risk domains are Criminal History, Education/Employment, Family/Marital, Leisure Recreation, Companions, Alcohol/Drug Problem, Procriminal Attitude/Orientation and Antisocial pattern.[55]
[52] Ibid 324.
[53] Ibid.
[54] Ibid.
[55] Ibid 325.
In regard to the Applicant, he scored a ‘five’ across the following domains:[56]
(a)Criminal history – 2 (adult sentenced, prior incarceration);
(b)Education/employment – 2 (left school prior to year 10);
(c)Leisure/Recreation – 1 (absence of participation in organised activity).
[56] Ibid.
According to Dr Deacon, a score of ‘five’ places an offender in a risk category of ‘low’ (which is based on a score between 5 to 10).[57] Dr Deacon noted that the ‘very low’ category is based on a score of 0–4.[58] Dr Deacon explained that the Applicant’s risk can be contextualised and understood to largely relate to his individual circumstances, that is, that he is a non-English speaking man with passive-detached personality traits living under financial stress, whilst casually working without an authorised visa, who was naively lured into a criminal enterprise.[59] He reports that the Applicant is an introverted man with an inability to effectively assert himself.[60] However, on this point, Dr Deacon states that the Applicant has reported an improved capacity to assert himself whilst being in immigration detention.[61] The Applicant reported that he would be confident that he would not be vulnerable to being drawn into criminal activity in the future.[62]
[57] Ibid.
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Ibid 326.
[62] Ibid.
Dr Deacon then stated he did not concur with the earlier psychological assessment that the Applicant’s prospects of rehabilitation were ‘moderate’. He opined that the Applicant’s prospects of rehabilitation are ‘good’ with the recommended supports.[63] In terms of supports, Dr Deacon suggests that the Applicant and his de factor partner could be aided by support agencies to assist them in locating suitable housing and employment.[64] Dr Deacon also recommended that the Applicant could benefit from engagement in psychological therapy to advance his interpersonal assertiveness skills, although Dr Deacon notes that psychological therapy was not available to the Applicant in the prison or immigration detention environment, and that a lack of interpreting services appears to have been a limiting factor.[65] There is no further evidence which details why this is so.
[63] Ibid 328.
[64] Ibid 326.
[65] Ibid.
During Dr Deacon’s evidence it became apparent that he had recourse to the earlier psychological report that assessed the Applicant’s prospects as ‘moderate’, but that the Tribunal did not. When the Tribunal queried this with the Applicant’s counsel, he responded that the report had not been produced because the Applicant does not rely upon it. The Tribunal questioned Dr Deacon in regard to his use of the earlier report and he confirmed he did have recourse to it in the preparation of his expert report to this Tribunal. In fact, Dr Deacon confirmed that he asked the Applicant’s solicitors for a copy of the report given its prominence in other material. Dr Deacon noted that he had been supplied with an Addendum Report from the same author (being the Addendum Report of Ms Alison Maynard, clinical psychologist, dated 15 August 2022 which was produced in the ‘G‑documents) and had enquired about its origin report.[66]
[66] Ibid 123.
The Tribunal again pressed the Applicant regarding the whereabouts of the earlier report when the hearing resumed the following day. The Applicant objected to its production, stating that it was not relevant and not relied upon in these proceedings. The Tribunal referred the Applicant to the Tribunal’s Guideline on Persons Giving Expert and Opinion Evidence dated October 2024 (the Guideline).[67] Paragraph 10(c) of that Guideline states that a written report prepared for the purpose of proceedings in the Tribunal must include either in the body of the report, or as an annexure, details of any facts and assumptions that inform the report and the sources for the factual information in the report. Paragraph 11(b) provides that a written report must also include either in the body of the report, or as an annexure, details of any literature or other material relied on, particularly in preparing the report.
[67] >
Indeed, Dr Deacon adhered to these requirements when he noted at the commencement of his report that he received the following material in preparation for the assessment, including ‘A copy of a psychological report from Alison Maynard dated 24 April 2022.’[68]
[68] Ibid 316
The Tribunal then issued a direction that the report be provided in accordance with the Guideline which was complied with. The report itself was referenced through a range of other sources in the delegate’s original cancellation decision, including via the Defence Outline of Plea Submission dated 30 August 2022 which was provided to the delegate by the Applicant.[69] The delegate referred to Ms Maynard’s assessment of the Applicant’s prospects as ‘moderate’ at paragraph 42 of the delegate’s decision. Indeed, the earlier report was tendered at the Applicant’s Plea hearing and the sentencing judge referred to it on a number of occasions throughout the sentencing remarks.[70]
[69] Ibid 13.
[70] Ibid 74-7, 79.
The Tribunal has had regard to the earlier report to the extent that it provided an opinion on the Applicant’s level of risk as being assessed as ‘moderate’ given the Applicant has the protective factor of his family and some ability to reflect on his behaviour as set out at paragraph 48 of that report.[71]
[71] Psychological Report of Alison Maynard dated 24 April 2022 [48].
A neuropsychological report of Ms Jane Lofthouse dated 7 June 2022 was provided in the G-documents and reported on the Applicant’s psychological state at the time of testing and during the offending period.[72] This report also referred to Ms Maynard’s earlier report.[73] Ms Lofthouse reported that the Applicant’s psychological state has deteriorated since his incarceration. However, she reports it is unclear whether psychological issues would have been present at the time of his criminal offending.[74] She did not consider that the Applicant was at risk of impulsive behaviour, nor did he demonstrate any disordered thinking at the time of the assessment.[75]
[72] Exhibit R1, 127.
[73] Ibid 138.
[74] Ibid 139.
[75] Ibid 138-9.
In considering the reports and the submissions of both parties, the Tribunal makes a finding that the Applicant’s risk of re-offending is low. The Tribunal accepts the findings of Dr Deacon and accepts the Applicant’s submissions in this regard.[76] However, although the Tribunal finds that the Applicant is at ‘low’ risk for re-offending, the Tribunal has had regard to paragraph 8.1.2(1) of the Direction which provides that ‘decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.’ In assessing the risk that may be posed to the Australian community, the Tribunal has had regard to the nature of the harm, the likelihood of further criminal or serious conduct taking into account the information and evidence on risk of re-offending and evidence of rehabilitation.
[76] Exhibit A1 [14].
In relation to paragraph 8.1.2(2)(a), the Tribunal finds that the nature of the harm should the Applicant re-offend in the same manner is so serious that any risk it may be repeated is unacceptable. Indeed, the sentencing judge remarked that although the Applicant expressed remorse insofar as the offending has affected him and his family, the Applicant had not expressed concern for the fact that he was prepared to manufacture methylamphetamine for others in the community to consume.[77]
[77] Exhibit R1, 250 [72].
Again, whilst the Tribunal accepts that the Applicant is at low risk of re‑offending (paragraph 8.1.2(b)(i)), there has been little advanced by way of evidence of rehabilitative efforts. Dr Deacon reports that the Applicant would benefit from psychological therapy but that the custodial environment has made that difficult to occur. It is also noted that the Applicant has not re-offended since being in prison or in detention. However, the Tribunal notes that the risk factors that existed at the time of the offending may likewise exist upon release from detention. That is, the Applicant may again experience financial stress which was determined to be a contributing factor in his earlier offending.[78] The Applicant provided some explanation as to what his plans are should he be released into the community, stating that he has already made enquiries about plastering work.[79] He also indicated that even if he were to experience financial difficulty in the future, ‘it does not automatically mean [he] will turn to illegal work.’[80] The Tribunal has noted that the Applicant has engaged in work in the past without the appropriate visas in place. He stated that he was engaged in plastering work from approximately 2014 through to about 2016 without holding a valid work visa.[81]
[78] Ibid 248 [63].
[79] Ibid 265 [29].
[80] Ibid 265 [30].
[81] Ibid 261-2 [9]-[13].
The Tribunal therefore makes a finding that, although the Applicant’s likelihood of engaging in further criminal or other serious conduct is low, the nature of the harm is so serious that any risk it may be repeated is unacceptable.
The Tribunal finds that primary consideration 1 weighs heavily against the revocation of the cancellation decision.
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2 of the Directions provides that the decision-maker must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a cancellation decision. There is no evidence before the Tribunal that the Applicant has been convicted of an offence that involves family violence. This primary consideration is therefore not relevant to the Applicant’s case.
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3(1) of the Direction states that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) states that where consideration is being given to whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia on 7 August 2012 as a 27-year-old. The Applicant’s offending commenced on 10 November 2019 when he was 34 years of age. Although the Applicant was resident in Australia for approximately five years before he commenced offending, it is noted that he arrived in Australia on a visitor visa only and was working illegally during this period. There is otherwise limited evidence before the Tribunal in regard to positive contributions the Applicant made to the Australian community during this time. The Tribunal has noted in the five years prior to his offending the Applicant was otherwise engaged in work, albeit without a valid visa. The Tribunal notes that the Applicant was not ordinarily resident in Australia during his formative years.
The Applicant has been in a long-term de facto relationship with his partner with whom he has two children. However, both children have been in foster care since the Applicant’s and his de facto partner’s arrest on 10 February 2020. Although his de factor partner has since been released from prison, the two children have remained in foster care.
The Applicant’s partner and children are not Australian citizens or permanent residents. The Applicant’s de facto partner holds a Bridging (Class C) visa with work rights.[82] Each of the children have made valid applications for a Child (Residence) visa.[83] Whilst those applications are being processed, the children were granted Bridging (Class C) visas on 20 December 2023.[84]
[82] Ibid 269.
[83] Ibid 276, 284.
[84] Ibid 282, 290.
Considering the impact of any non-revocation decision on the Applicant’s de facto partner and his two children, the Tribunal gives this primary consideration a limited weight in favour of revocation of the original cancellation decision.
Primary consideration 4: Best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of the Direction provides that decision-makers must make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is, or is not, in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made. Paragraph 8.4(3) states 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 8.4(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:
(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 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.
The Tribunal will consider the best interests of each to the extent that their interests may differ (paragraph 8.4(3)).
The eldest child was born in 2017 in Australia. He was placed in foster care when the Applicant and his de facto partner were arrested in February 2020 where he has remained since. The eldest child has remained in foster care although the child’s mother (the Applicant’s de facto partner) was released from custody in 2021.[85] The Applicant has been separated from his eldest child since February 2020. Although it is not mentioned in the Applicant’s written statement to the Tribunal, the circumstances of another separation between the Applicant and the eldest child were put to the Applicant in cross-examination. It was noted that the sentencing judge had remarked the Applicant’s sister was caring for the eldest child in Malaysia for a monthly caring fee of $1,000.[86]
[85] Ibid 266.
[86] Ibid 246 [65].
In regard to this set of circumstances, the Applicant gave evidence that the eldest child went to Malaysia to be cared for by family soon after the youngest child was born in 2018. The Applicant stated that this arrangement was in place to ease the burden of caring for two young children. The Applicant gave evidence that the eldest child was in Malaysia for over a year and only returned eight days prior to the Applicant’s arrest in February 2020.
The youngest child was born in 2018 in Australia. Like the eldest child, he was placed in foster care when the Applicant and his de facto partner were arrested in February 2020 where the children have remained since. The youngest child was nearly two years old when he was placed in care.
Since the Applicant has been in immigration detention (since June 2024) he states he has only had two in‑person visits with his children.[87] He reports only being able to see or speak with the children around once a month since being arrested, although during the COVID‑19 lockdown he was only able to see them twice by video call.[88] The Applicant has spoken of the difficulty of arranging access to the children through the foster carers and the Children’s Court. The Applicant wants the children to maintain a connection with Malaysia including by learning Mandarin.[89] The Applicant also wants the children to have some exposure to the Chinese culture and traditions of the Applicant and his de facto partner.[90] The Applicant wants the children to have a connection with his parents (the children’s grandparents) in Malaysia. The Applicant reports that prior to his arrest, the Applicant would usually call his parents by video every couple of days, and they would speak to the children. This had to stop once the Applicant was arrested. The Applicant said that his parents did not speak to children again until recently when the children visited the Applicant in detention, and he could video call his parents.[91] The Applicant wants the children to have a relationship with his parents but he states that it has been difficult because of the foster care arrangements.[92]
[87] Ibid 266 [35].
[88] Ibid.
[89] Ibid 266 [36].
[90] Ibid 267 [37].
[91] Ibid 267 [38].
[92] Ibid.
Both children are also subject to separate ‘Care by Secretary Orders’ imposed pursuant to the Children, Youth and Families Act 2005 (Vic) by the Children’s Court on 4 April 2024.[93] Each Order is expressed in identical terms. Both Orders are expressed to remain in force until 4 April 2026 and each of the Orders contain the notation that ‘the Father seeks to be reunified with the children’ and that he is to have monthly contact with them.
[93] Ibid 272, 274.
In considering 8.4(4)(a), the Tribunal has given less weight to the nature and duration of the relationship between the eldest child and the Applicant. The Tribunal notes that the Applicant was taken into custody when the eldest child was approximately three years of age. Prior to that time, the eldest child was resident in Malaysia being cared for by members of the Applicant’s family for at least one year. The Tribunal notes the presence of formal Court orders restricting the Applicant’s contact with the eldest child to once per month.
In relation to the youngest child, the Tribunal has also afforded same weight to the nature and duration of the relationship between this child and the Applicant. The youngest child was less than two years of age when the Applicant was taken into custody. Since that time, and at least until April 2026, the youngest child will be in the care of foster carers.
Both children have been in foster care since February 2020 and according to the Court Orders will remain in care until at least April 2026. The extent to which the Applicant is likely to play a positive parental role in the future is untested. The Tribunal understands that the Applicant has expressed a desire to be reunited with the children and is ‘waiting for the Children’s Court to review the current arrangements, which [he] understand[s] will happen next year.’[94] Even if reunification is not possible, the Applicant hopes to be able to see the children as much as possible.[95] Given these matters, the Tribunal gives the factor in 8.4(4)(b) moderate weight in favour of revocation.
[94] Ibid 266 [36].
[95] Ibid.
The Tribunal has also considered the impact of the Applicant’s conduct and any likely future conduct, and whether that has had or will have a negative impact on the children (paragraph 8.4(4)(c)). The Tribunal is of the view that the impact of the Applicant’s conduct would have had a profound impact on both children, noting that the conduct resulted in the children being placed in foster care where they have remained since. The Tribunal also notes that the children were residing at the property where the methamphetamine was being produced. The sentencing judge noted the inherent danger of this practice by commenting, ‘clandestine laboratories are notoriously dangerous, and you were prepared to conduct these dangerous activities in close proximity to where your children were living, albeit that the laboratory was towards the back of the house behind a locked door and you and your children lived towards the front of the house.’[96] Even if the Applicant is assessed as low risk for future offending, the Tribunal finds that the negative impact on the children thus far has been profound and affords this factor moderate weight against revocation.
[96] Ibid 246 [54].
The Tribunal has considered the matters raised at paragraph 8.4(4)(d). The Tribunal accepts that separation from the Applicant would have a negative impact on both children. The Tribunal notes that the Children’s Court Orders state that it is in each child’s best interest for the Applicant to maintain contact.[97] The Tribunal has weighed this factor significantly in favour of revocation of the cancellation decision.
[97] Ibid 275.
The Tribunal has considered whether there are other persons who already fulfill a parental role in relation to the children (paragraph 8.4(4)(e)). The children’s mother states that she currently sees her children once a month and that they have a ‘good relationship.’[98] She has expressed a desire to reunite with the children once the Applicant is released from immigration detention. Her and the Applicant have agreed that she cannot support them alone in her current financial situation.[99] The Tribunal notes the current parental responsibilities are being fulfilled by foster carers. At present there does not appear to be any firm plans for reunification. In fact, the current Order is to remain in place until at least April 2026. The Tribunal has considered these matters and gives this limited weight in favour of revocation.
[98] Ibid 270 [7].
[99] Ibid 270 [8].
Although the views of the children are unknown, the Tribunal notes that there is material in the form of photographs and letters from the Applicant to the children which depict a happy and loving relationship between the Applicant and the children.[100] The Tribunal weighs this factor in favour of revocation of the cancellation decision (paragraph 8.4(4)(g)).
[100] Ibid 88-96.
There is no evidence that either child has been exposed to family violence or neglect nor whether the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (paragraph 8.4(4)(g) and (h)).
In weighing the above factors, the Tribunal is of the view that that it is in the best interests of both minor children that that Applicant remain in Australia. The Tribunal does note however that any future reunification plans are uncertain. Despite this, the Tribunal accepts the Applicant is genuine in his desire to reunite with the children and introduce them to their culture and heritage, even if future living arrangements are not certain. The Tribunal gives this consideration moderate weight in favour of revocation of the decision.
Primary consideration 5: Expectations of the Australian Community
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 not to allow a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) provides that 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 is 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 position 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) 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) states that 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.
The Tribunal notes the Applicant’s submissions that the Applicant has put himself in danger by giving evidence against his co-accused. The Applicant invites the Tribunal to consider this factor as a reason why the ‘supposed norm’ should be given little weight in this case.[101] The Respondent has submitted that the Australian community would expect that the Applicant should not hold a visa on account of the serious crime he has committed.[102]
[101] Exhibit A1 [21].
[102] Exhibit R2 [52].
In the Tribunal’s view the Applicant has breached the community's expectation and has offended in a very serious manner, namely for trafficking in a large commercial quantity of methylamphetamine, an offence that carries a maximum penalty of life imprisonment. Although drug trafficking is not specifically mentioned in paragraph 8.5(2) of the Direction, plainly an offence which carries a maximum penalty of life imprisonment is serious. The Applicant was engaged in this activity for three months and produced twelve times the large commercial quantity of methylamphetamine applicable to that offence, with an average purity of between 75 and 80 per cent. The Applicant did so while he was residing in a property with his de facto partner and two small children. As such the Australian community would expect, as a norm, that the Government would not allow such a person to remain in Australia.
The Tribunal considers that this primary consideration weighs heavily against revoking the cancellation decision.
Other consideration 1 – Legal consequences of decision under section 501 or 501CA
This other consideration provides that decision-makers should be mindful that unlawful non‑citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under s 189, noting also that s 197C(1) of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction then asks decision-makers to consider whether non-citizens are covered by a protection finding, or not covered by a protection finding. If a protection finding (as defined by s 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non‑refoulement obligations are engaged in relation to the non-citizen (paragraph 9.1.1(1)).
Paragraph 9.1.2(1) provides that claims which may give rise to international non‑refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under s 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under s 501CA. Where such claims are raised, they must be considered.
The Applicant applied for a protection visa on 18 July 2019.[103] That application was refused by a delegate of the Minister on 5 August 2019.[104] The Applicant appealed that refusal to the AAT. On 11 September 2024, the AAT found that the Applicant was owed protection and remitted the matter back to the Minister with the direction that the Applicant satisfied s 36(2)(aa) of the Act.[105]
[103] Exhibit R1, 143.
[104] Ibid 148.
[105] Ibid 216.
Those protection obligations were said to arise because the Applicant provided an undertaking to give evidence against his co-accused. In fact, one of the members of the syndicate who ‘masterminded’ the offending, and who recruited the Applicant into the syndicate, is from the same town as the Applicant in Malaysia. The Applicant has also advised that they are known to each other through family connections.
The Applicant submits that if this Tribunal refuses to overturn the revocation decision, the Applicant cannot be removed to his country of origin, and therefore must remain in immigration detention, with the only possibility of release being on a grant of a ‘Bridging Visa R’ or grant of the protection visa that the Applicant has applied for.[106]
[106] Exhibit A1 [23].
Regarding the protection visa application, the Applicant submitted that there is no indication when a decision may be made by the Minister. Until a decision is made, the Applicant is required to be detained. The Applicant submitted that if the application is refused, this may be the subject of an appeal which would prolong his detention in the meantime.[107] The Applicant submitted that the ‘starting position is that if the refusal to revoke is not overturned, KPYK would remain in immigration detention indefinitely.’[108] The Applicant admitted however that there is the possibility of the application of the constitutional limit as identified in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (NZYQ).[109]
[107] Ibid [25].
[108] Ibid [26].
[109] (2023) 97 ALJR 1005; Exhibit A1 [26].
The Respondent submitted that although the protection visa application has been remitted with the direction that the Applicant satisfies s 36(2)(aa), the Applicant’s protection visa application has not been ‘finally determined’ and therefore there has been no protection finding within the meaning of s 197C of the Act.[110] The Respondent submits that the Applicant is currently being detained for the legitimate and non-punitive purpose of the investigation and determination of a visa application. The Respondent submits that the Applicant’s detention is validly authorised and required by ss 189(1) and 196(1) of the Act.[111]
[110] Exhibit R2 [56].
[111] Ibid [56].
The Respondent’s position is that the NZYQ constitutional limit on immigration detention can only apply once a duty to remove under s 198 of the Act arises if the application for the protection visa is ultimately refused.[112] The Respondent notes that this issue is presently before the High Court in similar matters such as CZA19 and DBD24, which form part of the so-called ‘detention for visa purposes’ cohort.[113] The question of whether NZYQ applies to these individuals is to be determined.[114]
[112] Ibid [57].
[113] Ibid.
[114] Exhibit R2 [57], BOE21 v Commonwealth of Australia [2024] FCA 709; Attorney-General of the Commonwealth v CZA19 & Ors; Attorney-General of the Commonwealth v DBD24 & Ors [2024] HCATrans 46 (31 July 2024).
The Respondent therefore submits that the Tribunal should not consider the issue of the lawfulness of the Applicant’s present detention with respect to NZYQ as part of determining this application.[115] It is submitted that the Tribunal can otherwise take note of the AAT’s findings with respect to the Applicant’s protection visa.
[115] Exhibit R2 [58].
In considering this matter, the Tribunal accepts the submissions of the Respondent in respect of the Applicant being a person not covered by a protection finding. The Tribunal accepts the Respondent’s position that until the application has been ‘finally determined’ by the Respondent, there has been no protection finding within the meaning of s 197C of the Act. The Tribunal however does takes note of the AAT’s findings and has considered the non‑refoulement obligations raised by the Applicant (paragraph 9.1.2(1)).
The Tribunal has considered non-refoulement and has accepted the Applicant’s arguments in this regard. The Tribunal accepts the Applicant’s submission that he has placed himself in danger by giving evidence against his co-accused, one of whom is from the same town of Malaysia as he, and that there is a familial relationship.
The Respondent submits that that while it is accepted that the Applicant has been found to be owed non-refoulement obligations, that consideration does not outweigh the seriousness of the Applicant’s offending.[116] The Respondent submits that the combined weight of the primary considerations in favour of non-revocation outweigh any weight to be given to this other consideration in favour of revocation.[117] The Tribunal accepts this argument. The primary considerations in favour of non-revocation outweigh the weight to be afforded to this other consideration. The Tribunal accepts that the Applicant is owed non‑refoulment obligations but has weighed this against the Applicant’s criminal offending which is of the utmost seriousness. So, while the Tribunal finds this consideration is engaged in favour of the Applicant, the Tribunal is of the view that it does not outweigh the primary considerations.
[116] Ibid [59].
[117] Ibid.
In regard to the Applicant’s detention, the Respondent alerted the Tribunal in its submissions that on 25 October 2024, that the Applicant filed an application in the Federal Court of Australia seeking a writ of habeas corpus on the basis that his ongoing detention is unlawful.[118] As at the time of lodgement of reply submissions, the Applicant indicated that the application remained ‘undetermined, and it is otherwise not in this Tribunal’s jurisdiction to speculate how that application may be resolved.’[119]
[118] Exhibit R2 [12].
[119] Exhibit A2 [11].
During the hearing of this matter the Tribunal enquired as to the status of this application. Counsel for the Applicant advised the Tribunal that the Federal Court dismissed the application on 15 November 2024.[120] During closing submissions, the Respondent sought to hand up a copy of the Federal Court’s decision – a course which was objected to by the Applicant. The Applicant argued that the tender of this decision breached the ‘two‑day rule’ as prescribed by s 500(6J) of the Act. The Applicant also argued against its relevance to the Tribunal’s task. The Tribunal received a copy of the decision but only for the purposes of noting that the Applicant’s application for a writ of habeas corpus was only recently dismissed. The fact of the application was raised by the Respondent and the Applicant in reply and for finality, the Tribunal took notice of the outcome of the Application but otherwise did not have regard to the matters raised by the decision. It was not submitted that the Tribunal should have regard to it, other than noting that the application had been dismissed. The Tribunal did not have regard to it when considering its decision.
[120] IXW24 v Commonwealth of Australia [2024] FCA 1328.
Balancing the non-refoulment obligations owed to the Applicant against the seriousness of the criminal conduct, the Tribunal is of the view that these obligations, however engaged, do not outweigh the primary considerations. The Tribunal gives this other consideration moderate weight in favour of revocation.
Other consideration 2 – Extent of impediments if removed
Paragraph 9.2 of the Direction provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Tribunal is required to consider the extent of any impediments that the Applicant may face if returned to Malaysia. The Applicant submits that if the Applicant is removed to his country of origin, there is a ‘real risk that he will suffer significant harm.’[121]
[121] Exhibit A2 [27].
The Respondent accepts, consistent with the delegate’s decision, that this consideration weighs in the Applicant’s favour, noting the hardship he would face being removed from his family and considering his lack of formal skills, notwithstanding he is in reasonable health, is relatively young and would not likely face any language or cultural barriers, having resided in Malaysia until the age of 27. The Respondent accepts that the Applicant would also face the risk of significant harm if he were returned to his home country.[122] The Respondent accepts that this consideration weighs in the Applicant’s favour but does not outweigh the primary considerations which weigh heavily in favour of non-revocation.[123]
[122] Exhibit R2 [61].
[123] Ibid [62].
The Tribunal is of the view that this consideration weighs in favour of revocation of the cancellation decision. However, the Tribunal is of the view that this consideration does not outweigh the primary considerations which weigh heavily in favour of non-revocation.
Other consideration 3 – Impact on Australian business interests
Paragraph 9.3(1) of the Direction states 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 s 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. This consideration was not raised as a relevant consideration by the Applicant except as to say that the Applicant has relevant ‘job-ready skills.’ This consideration was otherwise not relied upon. The Tribunal has given this consideration neutral weight.
Any Other Considerations
The Applicant also invited the Tribunal to consider the further legal consequence in regard to s 501E of the Act. Section 501E provides that a person is not allowed to make an application for a visa at a particular time (the application time) if, at an earlier time, the person’s visa was cancelled, and the cancellation decision was neither set aside nor revoked before the application time. The Applicant argues that the effect of this is if the cancellation is not revoked, then under s 501E, he would be unable to apply for any other visa. The Applicant argues that should his protection visa be granted, s 501E would preclude him from applying for a resident return visa, which he would have to obtain if he wished to travel outside of Australia and return here. The Applicant argues that this effectively amounts to a ban on any form of international travel, and this is a circumstance that favours revocation.[124]
[124] Exhibit A2 [12].
The Tribunal gives this other consideration very limited weight in favour of revocation. The Applicant has not raised any other matters with the Tribunal which indicates he is intending to travel overseas but the Tribunal accepts that as a legal consequence of the grant of a protection visa, the provisions of s 501E would operate. This other consideration however does not outweigh the primary considerations. The Tribunal has given this less weight than the other considerations at paragraphs 9.1 and 9.2 of the Direction.
CONCLUSION
The primary considerations of protection of the Australian community and the expectations of the Australian community weigh heavily against revocation of the mandatory cancellation decision. These primary considerations outweigh the primary and other considerations in favour of revocation. The Tribunal has afforded the protection of the Australian community greater weight than the other primary considerations.
There is not another reason to revoke the mandatory cancellation decision.
DECISION
The decision under review is affirmed.
Date(s) of hearing: 18 & 19 November 2024 Date final submissions received: 19 November 2024 Counsel for the Applicant: Min Guo Solicitors for the Applicant: Victoria Legal Aid Solicitors for the Respondent: Sparke Helmore Lawyers
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