KQDV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 210
•10 February 2022
KQDV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 210 (10 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8984
Re:KQDV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:10 February 2022
Place:Adelaide
The decision of the Tribunal is to set aside the decision of 19 November 2021 and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 31 March 2021.
........................................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – applicant poses low risk of reoffending – other considerations – ties to the Australian community and extent of impediments if removed outweigh primary considerations – decision under review set aside.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109.
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124.
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338; [2016] FCA 1166.
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56; [2016] FCAFC 244.
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303.Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.
SECONDARY MATERIALS
Langhorn, Mark, ‘Sex trafficking and the involvement of organised crime: a study of the Australian context.’ (April 2016).
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
REASONS FOR DECISION
Deputy President Britten-Jones
10 February 2022
This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE VISA AND SUBSEQUENT PROCEDURAL HISTORY
The applicant has had her visa cancelled twice by the respondent. The first cancellation was on 4 June 2019, but this decision was later revoked after representations were made by the applicant. The second cancellation was on 31 March 2021 when the applicant’s Class DH Subclass 852 (Referred Stay) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to her substantial criminal record and because she was serving a sentence of imprisonment.
On 26 April 2021, the applicant sought revocation of the cancellation decision. On 19 November 2021, a delegate of the Minister (the Delegate) refused to revoke the cancellation decision pursuant to s 501CA (the non-revocation decision).
On 24 November 2021, the applicant applied to the Tribunal for review of the non-revocation decision.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as she has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338, 345 at [38]; [2016] FCA 1166.
The applicant concedes that she does not pass the character test and that the only issue for the Tribunal is whether there is another reason to revoke the cancellation decision having regard to the principles and considerations in Direction 90.[4]
[4] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
In her request[5] for revocation of the decision to cancel her visa, the applicant said:
I am sorry for my offending which is related to mental health issues that I have experienced as the result of being trafficked and subjected to sexual servitude in Australia.
I helped the Australian government investigate and prosecute the trafficking ring that enslaved me and this has put me at personal risk. If I am returned to Malaysia I believe that I am at risk of being hurt or killed by the people who trafficked me. I am also worried for my mental health and well-being as I will not be able to access the services I need to recover from the trauma I experienced.
I want to remain in Australia so that I can get a job and establish a happy life here. I am committed to doing whatever I need to do so that I can stay here where I feel safe.
[5] The request is dated 26 April 2021.
Direction 90
The purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 90 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The 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.
(4) Australia 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)whether the conduct engaged in constituted family violence;
(iii)the best interests of minor children in Australia; and
(iv)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(i)international non-refoulement obligations;
(ii)extent of impediments if removed;
(iii)impact on victims; and
(iv)links to the Australian community, including:
a)strength, nature and duration of ties to Australia; and
b)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 90 at 7.
SOME BACKGROUND FACTS
The applicant was born in Malaysia in 1985. Her mother, father and brother remain in Malaysia. She is of Chinese ethnicity and attended a Chinese primary school and spoke a Chinese dialect at home. She attended an English-language secondary school for one year but then left school to get a job to help support her family. Her family was poor.
She moved from her hometown in around 2003. After working in a mobile phone shop for about a year she was encouraged by a friend to work in the sex industry which would provide her with a greater income. She began to work in the sex industry and later she met an agent named Ah Fai who said he would organise for her to move to Australia for better work opportunities. He told her that in Australia she would be studying two days a week and providing sexual services in a brothel. He told her she did not need to pay any money upfront and that he would pay for her airfares and student visa and costs and spending money which would be repaid to him by deductions from her salary.
She arrived in Australia in 2008 and was immediately subjected to conditions of slavery and sexual servitude at a brothel in Sydney. Whilst she had taken some illicit drugs in Malaysia, this became more frequent when working at the brothel in Sydney where she was offered ecstasy and other drugs by her boss who encouraged the workers to take them. She had hoped to study English but ended up in a business course which was not completed. In about March 2009 she ran away from the brothel because she did not like the work and was not happy with the money she was earning.
The following years were very difficult for the applicant as a result of the trauma suffered at the brothel and her involvement in a subsequent police investigation. She took drugs to manage her level of anxiety and found it difficult to obtain steady employment due to her mental health issues and lack of English and being in unfamiliar surrounds without any family support. She received some support from the Australian Red Cross Support for Trafficked Persons Program up until 2014. She held various positions as a retail assistant and a receptionist from 2015 to 2017 and she gained a Certificate lll in Cleaning Operations in 2018. Her English skills were very limited and remain relatively low. A Mandarin interpreter was engaged to assist her in giving and hearing evidence before the Tribunal.
In October 2010 she provided a statement to the Australian Federal Police who were investigating sexual servitude. By letter dated 26 June 2012 from the Australian Federal Police, a federal agent confirmed her involvement in the ongoing investigation into human trafficking and sexual servitude offences. The letter confirmed that she had provided a witness statement and was likely to be called upon to give evidence before the court and that she had been granted a witness protection trafficking visa.
On 16 July 2015, a decision was made under the Victims Rights and Support Act2013 (NSW) recognising that she was a primary victim of an act of violence and that she was entitled to a payment of $10,000. The notice of decision provided as follows:
The applicant alleges that she was a victim and sustained injury as a consequence of being trafficked from Malaysia into sexual servitude in a brothel in Crows Nest, Sydney in the period between August 2008 and March 2009. As a consequence of this servitude the applicant was held against her will and forced to perform and be subjected to a series of sexual assaults.
In addition to the application form, I have considered the applicant’s Australian Federal Police statement, documentation from the Department of Immigration and Citizenship in relation to the granting of a Witness Protection (Trafficking) (Permanent) Visa, the counselling/psychological evidence of Dr Marsh, psychologist and the comprehensive submissions from the applicant’s solicitor.
I note that the owner of the brothel pleaded guilty to conducting a business that involved sexual servitude of 6 other Malaysian women. I am satisfied that the applicant’s allegations have the “ring of truth” and I accept that the offences occurred.
I am satisfied on the balance of probabilities that the applicant was subjected to a series of sexual assaults and that the evidence indicates that the applicant suffered psychological harm.
The applicant got married in 2015 but she left her husband after eight months because he was violent and beat her with increased severity and frequency until there were daily physical assaults on her. In 2016, she commenced another relationship with a man who she said was usually nice to her but when his mood turned he would beat her.
The applicant has been convicted of numerous drug related offences. The first was not a serious offence in 2012 for possession of a prohibited drug for which she received a 12-month bond. Her more serious offending related to drug supply offences committed in May 2018 and October/November 2020.
In April 2019, the applicant was sentenced in the District Court for the May 2018 offences of supplying a prohibited drug. She pleaded guilty and received an 18-month term of imprisonment. Her co-offender was her partner at the time and they were motivated to feed their drug habit. The supply took place over a confined period from 7 May to 24 May 2018. The sentencing Judge noted that the objective seriousness of her offending was somewhat less than her partner but said they were still part of a joint criminal enterprise involving drug supply over several weeks – ‘a serious episode of drug dealing over a relatively confined time.’
In March 2021, the applicant was sentenced in the Local Court for the November 2020 offences of supplying and possessing drugs and dealing with the proceeds of crime. She pleaded guilty and received a 16-month term of imprisonment. The sentencing Magistrate was not satisfied that she was trafficking to a substantial degree and said that the offences fell within the low range to the lower mid-range of objective seriousness. She and her co-offender operated a joint criminal enterprise from at least 2 November 2020 until their arrest on 18 November 2020. A period of imprisonment was considered appropriate.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 90
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. I give consideration below 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 non-citizen’s conduct – 8.1.1 of Direction 90
The applicant was convicted of drug related offences. Offences involving the supply of drugs are viewed seriously by the Australian Government and community but the nature of her involvement was as a person who was influenced by her co-offender and played a lesser role in the joint enterprises. The seriousness of the crimes is reflected in the custodial sentences imposed; noting, however, the judicial sentencing remarks indicating that the offending was at the lower end of the range of objective seriousness. Her offending was not frequent, but she did commit a second offence of supplying drugs after her first custodial sentence and after being formally warned in writing by the respondent about the consequences of any further offending. I also take into account that she lied to the immigration officials when first entering the country. All these circumstances indicate the seriousness of the applicant’s conduct.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 90
In considering the need to protect the Australian community from harm, I 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.[7] I also 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 their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[7] Direction 90 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[8] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[8] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 90
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be serious because of the negative impact on users and on the wider community of drug use. Whilst the supply of drugs will always have a negative impact, the nature of this offending was at the lower end of the range of objective seriousness and hence the resulting harm is less than if there was a more significant and elaborate scheme of drug supply.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 90
The applicant contends that there is a low risk of any re-offending. She has expressed genuine remorse for her behaviour and has expressed a strong desire to not take drugs again. She has taken proactive steps towards rehabilitation whilst incarcerated, albeit with limited success due to her limited skills in English. The fact that she has been free of drugs since being taken into custody in November 2020 is a positive factor in her favour especially because her past offending was motivated to feed her drug habit. If she manages to abstain from drug use then it is likely that she will not commit further offences.
I was very impressed by the evidence of the supports that await the applicant if she is released into the community. The applicant has given a strong indication that she will engage with these supports. The primary support is being offered by the Salvation Army through Claudia Cummins who is the Program Manager of the Trafficking and Slavery Safe House. Ms Cummins gave oral and written evidence to the Tribunal that the applicant has been referred to their service by Anti-Slavery Australia and that she would be eligible, upon assessment, for their safe house accommodation service which is specifically designed to offer care and rehabilitation to survivors of sexual trafficking and slavery. The service provides comprehensive case management and support including supervised referrals to other organisations for drug and alcohol recovery, medical support, English lessons and work readiness or vocational training courses. A position in the safe house has been set aside for the applicant and would be available for her upon her release into the community. The applicant has indicated that she would take up the position and stay as long as it takes for her to achieve her goals. I was very impressed with Ms Cummins as a witness who said that the average length of stay in the safe house is in excess of 12 months.
In assessing the risk to the Australian community, I must have regard to the likelihood of recidivism taking into account the information and evidence on the risk of re-offending and the “evidence of rehabilitation achieved by the time of the decision”.[9] In this regard, there is the written and oral evidence from Ms Clair Baker, a forensic psychologist who interviewed the applicant on 10 January 2022. Her report dated 17 January 2022 diagnosed her as suffering from PTSD arising from her experiences while working in sexual servitude and found her to have a high risk of recidivism should she not address the factors identified as contributors to her offending behaviour. Those factors are:
her history of drug abuse, her lack of education and vocational training, her limited employment history, her lack of financial security, her lack of stable accommodation, her absence of participation in prosocial leisure or community activity, her continued relationships with criminal and illicit drug using companions, and her largely untreated mental health symptomatology.
[9] Direction 90 at paragraph 8.1.2(2)(b)(ii).
Ms Baker concluded in her report that a treatment plan that addresses her criminogenic needs would be likely to have a very significant impact on her risk of re-offending and that “should she be provided with the opportunity to address her mental health and drug addiction with the appropriate supports in place, she would be much less likely to reoffend in the future.”
I consider that the treatment plan and supports being offered by the Salvation Army, as articulated by Ms Cummins, address the needs of the applicant and I therefore conclude that the risk of the applicant reoffending is low. I accept that at the time of this decision there is limited evidence of actual rehabilitation but the information and evidence[10] from Ms Baker is that with the Salvation Army supports and treatment plan the risk of reoffending is significantly reduced. Further, in Ms Baker’s oral evidence, she said that the risk could be potentially removed because most of the past factors contributing to her offending are dynamic. I take into account that Ms Baker considers the applicant to have good prospects for rehabilitation and that she would be receptive to treatment.
[10] Direction 90 at paragraph 8.1.2(2)(b)(i).
The respondent contended that the applicant’s failure to learn from her first stint in gaol and her subsequent failure to rehabilitate, despite the offer of supports similar to those currently being offered, are factors that suggest that she will not engage with the supports now offered and that she therefore remains a high risk of reoffending. I reject that contention based on the authoritative opinion[11] expressed from the forensic psychologist, Ms Baker, and based on the evidence from the applicant herself which indicated genuine remorse and a desire to engage with the offered supports so as to not repeat the mistakes she admitted she had made in the past.
[11] Direction 90 at 7(1).
I also take into account the written and oral evidence from the applicant’s friend, Corina Mitchell, who is prepared to provide support by way of accommodation with her and help to find employment.
Conclusion as to protection of the Australian community – 8.1 of Direction 90
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[12] The applicant has committed serious drug related crimes but at the lower end of objective seriousness. The nature of the harm of any similar re-offending is serious, but the evidence indicates that the risk of reoffending is low. The applicant has expressed what I consider to be a genuine desire to engage with the very comprehensive and impressive array of supports that have been arranged and in addition to these professional supports she has the definite support from her good friend. In these circumstances, it is most likely that the applicant will engage with the available supports and not re-offend. The likelihood of significant harm to the Australian community if the applicant were released is relatively low and therefore the protection of the Australian community is a factor that weighs only slightly against revoking the cancellation decision. I give this factor minimal weight.
[12] Direction 90 at 8.1(1).
Family Violence – 8.2 of Direction 90
The offending did not involve family violence. This consideration is neutral.
Best interests of minor children – 8.3 of Direction 90
There was no evidence of any minor children affected by the non-revocation decision. This consideration is neutral.
Expectations of the Australian community – 8.4 of Direction 90
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[13] However, I do not consider the circumstances of the applicant present an unacceptable risk because of my findings with respect to the protection of the Australian community set out above.
[13] Direction 90 at 8.4(1).
Paragraph 8.4(4) of Direction 90 provides that, as a decision-maker, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government’s views expressed therein, without independently assessing the community’s expectations in the particular case. The character concerns relating to the applicant and her past criminal behaviour mean that the expectations of the Australian community is a factor weighing in favour of non-revocation but the particular circumstances of the applicant indicate that this is not a decisive factor in terms of whether to revoke the cancellation decision. Those particular circumstances include the psychological harm suffered by the applicant as a sexual slave and that she had the courage to extract herself from that servitude and to give evidence against those who perpetrated most serious crimes against her and other women. That represents a significant contribution to the Australian community which countervails against a non-revocation decision.
The respondent relies upon paragraph 5.2(4) of Direction 90 and contends that the applicant is not a person who has lived in Australia for most of their life or from a very young age. That may be so, but the applicant has lived in Australia for the majority of her adult life and avoided any serious crimes for a period of approximately 10 years after arriving in Australia during which period she made a significant contribution by assisting the Federal Police. I consider that the ‘low tolerance’ of the Australian community referred to in paragraph 5.2(4) would not apply to the conduct of the applicant.
My conclusion as to the expectations of the Australian community is that it is a factor that weighs marginally against revoking the cancellation decision. I give this factor minimal weight.
Other Considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must also take into account the other considerations listed in Direction 90, but these are not exhaustive.[14] I must also consider the consequences that would flow from not revoking the cancellation decision.[15]
[14] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303
[15] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision. This is in addition to, and distinct from, her underlying claimed fear of harm if returned to Malaysia. I am required to give separate and meaningful consideration to each of these representations. I am not entitled to sidestep the obligation to consider the potential breach of Australia’s non-refoulement obligations on the basis that “a protection visa application might be made and that the non-refoulment obligations and consequences of non-compliance with them might be dealt with then”.[16]
[16] Ali v Minister for Home Affairs (2020) 380 ALR 393, 426 at [101]; [2020] FCAFC 109; FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124 at [45].
I will consider separately the risk of harm if returned to Malaysia, but I note that the risks of harm that the applicant will face if removed are also relevant to international non-refoulement obligations and the extent of impediments if removed.
Risk of Harm
The applicant made representations concerning risk of harm in Malaysia. She fears harm if she is returned based on her having been a sex worker in Malaysia and Australia, having been trafficked and given evidence against her traffickers together with her serious mental health issues.
The applicant fears retributive torture from the perpetrators of her trafficking and servitude because she gave evidence against them to the Australian Federal Police. The applicant is fearful that Ah Fai, the agent who arranged her travel to Australia, knows where her family home is located and that he, or other members of the syndicate, may be informed by her friends if she is returned. She is fearful of Ms Wong who was sentenced to six years imprisonment with a non-parole period expiring in May 2016.
The risk of harm if returned to Malaysia must be considered in the context of the substantial period of time that has lapsed since the applicant gave her statement to the Australian Federal Police and since Ms Wong was released from prison. There was no evidence of any retribution taken against the applicant or any of the other victims in Australia. There was no evidence that the applicant’s family has been targeted in Malaysia. There was also no evidence of any real or credible threats made against the applicant or her family. I accept that the applicant holds some fears of retribution, but I consider the risk to be very slight and I am not satisfied on the evidence that the applicant would be in danger of being subjected to torture or serious harm if returned to Malaysia.
The applicant asserts that she would be at risk of being re-trafficked into the sex industry against her will, but this remains a bare assertion without any satisfactory evidence to support it. I consider that, given the applicant’s awful experience in the sex industry, she would not re-enter the sex industry in Malaysia and that she would seek help from the authorities in the event of any attempt to force her to do so. I accept that members of the syndicate that trafficked the applicant remain at large[17] but there is no evidence that the Malaysian authorities would not be able to protect her both with respect to any attempt of retribution or coercion into the sex industry.
[17] Mark Langhorn, ‘Sex trafficking and the involvement of organised crime: a study of the Australian context.’ (April 2016).
The applicant asserts that she would be prosecuted by Malaysian authorities for her involvement in the sex industry from 2004 to 2008. The applicant also asserts there is a possibility her witness statement given to the Australian Federal Police could have been shared with Malaysian authorities. No evidence was provided regarding the likelihood of these events and hence I do not accept the assertions.
I am not satisfied on the evidence before me that the applicant would face serious harm if returned to Malaysia.
International non-refoulement obligations – 9.1 of Direction 90
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[18]
[18] Direction 90 at 9.1(1).
In Ali v Minister for Home Affairs,[19] the Full Court said with respect to Australia’s non-refoulement obligations:
[19] (2020) 380 ALR 393; [2020] FCAFC 109.
[23] Although the concept of non-refoulement is not defined in the Act, s 5 contains a definition of “non-refoulement obligations” in the following terms:
non-refoulement obligations includes, but is not limited to:
(a)non-refoulement obligations that may arise because Australia is a party to:
i.the Refugees Convention; or
ii.the Covenant [being the International Covenant on Civil and Political Rights]; or
iii.the Convention Against Torture; and
(b)any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
[24] The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100]–[113]. In summary and relevantly for the purposes of this matter:
(a)The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:
Article 33
PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)
1.No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
(b)In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.
The applicant has articulated the prospect of Australia breaching its international law obligations as a reason for revoking the cancellation decision.
As set out above, I am not satisfied that the applicant has established that she would be at risk of harm if returned to Malaysia. Whilst it is acknowledged that the applicant was granted a Witness Protection (Trafficking) (Permanent) visa based on eligibility requirements of the Migration Regulations 1994 at the time, I am required to consider the current evidence to determine if there is a risk of harm. That evidence is not sufficient to satisfy me that there is a risk of retribution or persecution if the applicant is returned to Malaysia
I will not repeat the matters considered separately under risk of harm, but they are relevant to non-refoulement. I find that the asserted risk of harm does not give rise to a non-refoulement obligation and I do not consider that Australia would be in breach of any such obligation if the applicant were to be returned to Malaysia. This is a factor that weighs neither for nor against revoking the cancellation decision.
I accept that regardless of whether the applicant’s claims are such as to engage non-refoulement obligations, the applicant would face significant hardship and a lack of support if she were to return to Malaysia. I consider this below under the heading of extent of impediments if removed.
Extent of impediments if removed to home country – 9.2 of Direction 90
Direction 90 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to her home country of Malaysia in establishing herself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to her in that country.
The applicant was born in Malaysia and lived there until coming to Australia in 2008 aged 23 years. She has lived independently from her parents since she left home aged 18 years in 2003. She moved out because her father accused her of stealing money from them, which she denied. She is now 36 years old.
The applicant has serious mental health issues. When about 18 years old she was admitted to hospital after suffering a panic attack. Her panic attacks have continued and in 2012 she had suicidal thoughts. There have been numerous suicide attempts. In her January 2022 report, Ms Baker noted that she was experiencing symptoms of depression, anxiety and stress at an extremely severe level. Ms Baker diagnosed PTSD noting her repeated, unwanted and disturbing memories and dreams of her experiences whilst in sexual servitude, flashbacks, hypervigilance and sleeping difficulties.
In her statement the applicant said she had never taken medication for her mental health issues, but she had developed an understanding and willingness that she may need medication in the future. She fears that she would not receive the necessary supports for her mental health conditions if she were returned to Malaysia. I accept that the stress of readjusting and being returned to poverty would likely trigger her depression.
If returned to Malaysia then I accept that the mental health supports would be inferior to those in Australia and that the applicant would face impediments and difficulties as a result. However, mental health care is available in Malaysia and hence some support would be available to the applicant.
The applicant’s mother and father and brother live in Malaysia. She has maintained regular telephone contact with her mother but has not spoken to her father or brother for a while. The applicant says that she dare not return to her family given her relationship with her father. In these circumstances I accept that very little family support would be available. However, the applicant spent the first 23 years of her life in Malaysia including a period of living independently from her family so I do not consider there to be any language or cultural barriers if she is required to return. The applicant has shown herself to be capable of finding employment in Australia and I expect that she could do the same in Malaysia. I accept that her standard of living would not match what she had in Australia and that there will likely be some impediments in that regard, but I consider that she would be able to establish herself and maintain basic living standards if she is returned to Malaysia.
The applicant says that she fears cultural stigmatisation and discrimination as a result of her history of working in the sex industry in Malaysia but that was about 14 years ago and hence I give little weight to those fears.
In summary, whilst some impediments would arise, I do not consider them to be significant. This is a factor that weighs marginally in favour of revoking the cancellation decision.
Impact on victims – 9.3 of Direction 90
There is no evidence from the victims of the applicant’s offending. This consideration is neutral.
Links to the Australian community – 9.4 of Direction 90
The applicant has no immediate family in Australia but she has developed friendships whilst in Australia particularly with her good friend who gave written and oral evidence in support of her.
The applicant has significant ties to Australia because she has lived here for about 14 years which represents the majority of her adult life. She has had some periods of employment and has made attempts to contribute to the Australian community by undertaking English studies and completing a Certificate in cleaning operations. The applicant’s more serious offending (of supplying drugs) took place about 10 years after her arrival which represents a significant period of positive contribution to the Australian community. During her periods of incarceration there were no significant incidents and she participated in numerous positive activities and undertook paid employment.
The applicant’s most significant contribution to the Australian community was the evidence she gave against those who enslaved her in sexual servitude. This was not only courageous, but it also assisted the Australian Federal Police who eventually obtained a conviction against the perpetrator of these most awful crimes. The imprisonment of that perpetrator likely prevented similar crimes being committed against other vulnerable persons.
No evidence or argument was advanced with respect to any impact on Australian business interests.
The applicant’s links to the Australian community weigh significantly in favour of revoking the cancellation decision.
Conclusion as to whether to exercise the discretion to revoke the cancellation of the visa
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to determine whether to exercise my discretion to revoke the cancellation decision.
The primary considerations of protection and expectations of the Australian community weighs against revocation but, as I have explained, not significantly so. Her crimes were not of the most serious kind and her risk of reoffending is not significant. She understands that her drug offences were wrong and harmful to others and she is strongly motivated to not re-offend. As found by Ms Baker, she has good prospects of rehabilitation and this is particularly so because of the high level of supports that await her if released. The evidence suggests that she will take up those supports and that further offending is unlikely. This is a case where these primary considerations should be given little weight.
Whilst primary considerations should generally be given greater weight than other considerations, this is a case where the links to the Australian community outweigh the primary considerations. Further in favour of revocation is the extent of impediments if removed; whilst not significant I give some weight to this factor because the applicant would face difficulties if required to return to Malaysia and those difficulties would be exacerbated by her poor mental health conditions. Those mental health conditions relate significantly to the period of her sexual enslavement when she first came to Australia. Whilst the applicant later committed crimes in Australia, she started her life here as a victim of the most serious crimes. Her evidence against the perpetrators of those crimes represents a very significant contribution to the Australian community. In these circumstances I consider that there is another reason why the cancellation decision should be revoked.
The decision of the Tribunal is to set aside the decision of 19 November 2021 and substitute a decision revoking the mandatory cancellation of the applicant’s visa made on 31 March 2021.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
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Associate
Dated: 10 February 2022
Date(s) of hearing: 27, 28 and 31 January 2022 Counsel for the Applicant: D. Gang Solicitors for the Applicant: Anti-Slavery Australia Advocate for the Respondent: A. Zhang Solicitors for the Respondent: Clayton Utz
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