KQHR and Minister for Immigration and Border Protection (Migration)
[2018] AATA 684
•28 March 2018
KQHR and Minister for Immigration and Border Protection (Migration) [2018] AATA 684 (28 March 2018)
Division:General Division
File Number(s): 2017/7654
Re:KQHR
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:28 March 2018
Place:Melbourne
The Tribunal affirms the decision dated 20 December 2017 made by a delegate of the respondent to refuse to revoke the cancellation of the applicant’s Class BF transitional (permanent) visa under s 501(3A) of the Migration Act 1958.
......................[sgd]................................................
S A FORGIE
Deputy President
MIGRATION – mandatory visa cancellation due to substantial criminal record - refusal to revoke mandatory cancellation – applicant led to believe he had made a ‘valid’ application for a protection visa – review on the papers – no other reason why original decision should be revoked – decision affirmed
PRACTICE AND PROCEDURE – withdrawal of application – dismissed by operation of section 42A(1B) of Administrative Appeals Tribunal Act 1975 – withdrawal and subsequent dismissal induced by error – application for reinstatement granted
LEGISLATION
Administrative Appeals Tribunal Act 1975 ss 42A, 42B, 42C, 43
Migration Act 1958 ss 65, 189, 195, 195A, 197C, 198, 500(6L), 501(3A), 501CA, 501G(1)
CASES
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goldie v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 367; (2002) 121 FCR 383; 36 AAR 238; 72 ALD 652
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288
Re Oates and Secretary, Department of Social Security [1994] AATA 252; (1994) 37 ALD 241
Re White and Secretary, Department of Families, Community Services and Indigenous Affairs [2017] AATA 1712; (2007) 97 ALD 204; 46 AAR 208
Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No.65 made under s 499 of the Migration Act 1958
International Covenant on Civil and Political Rights and its Second Optional Protocol
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
REASONS FOR DECISION
Deputy President SA Forgie
On 23 March 2017, KQHR’s Class BF transitional (permanent) visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). Acting under s 501CA(3), a delegate of the then Minister for Immigration and Border Protection (Minister) invited him to make representations to him about revoking the cancellation decision. KQHR responded by setting out why the cancellation should be revoked. In a letter dated 21 December 2017 and handed to him on that day, he was advised that a delegate of the Minister[1] had decided on 20 December 2017 not to revoke the cancellation. The delegate made the decision under s 501CA(4) of the Migration Act.
[1] This comes about by reading the amendments made to the Administrative Arrangements Order (AAO) made on 20 December 2017 together with s 19A(1)(c) of the Acts Interpretation Act 1901. Section 19A(1)(c) is the relevant provision of the AI Act as the Migration Act specifies only “the Minister” and not a particular Minister. As the AAO changed the Department of State of Immigration and Border Protection to the Department of State of Home Affairs, the legislation listed in the AAO, including the Migration Act, is now administered by the Minister of State for Home Affairs. Had the Migration Act specified the Minister for Immigration and Border Protection, the reference would now be to the Minister for Home Affairs. That outcome would be reached by reading s 19B(1) of the AI Act with Item 1 of s 2.4 of the Acts Interpretation Substituted Reference Order 2017.
There is no question that the Minister’s Department gave KQHR notice of the decision refusing revocation in accordance with s 501G(1) of the Migration Act. Therefore, he had to lodge his application for review within nine days after 21 December 2017 in order to comply with s 500(6B). He did so. The effect of s 500(6L) is that the Tribunal had to make its decision under ss 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act) within the period of 84 days after the day on which he was notified of the decision under s 501G(1). If the Tribunal did not make such a decision, it would be taken at the end of the period to have made a decision under s 43 affirming the Minister’s decision dated 20 December 2017. In this matter, the period ended on 15 March 2018.
With those provisions in mind, I listed KQHR’s application for review for hearing on 8 March 2018 before another member. On 7 March 2018, KQHR’s solicitors lodged a Notice of Withdrawal to the effect that he had withdrawn his application. For the purposes of these proceedings, I accept that KQHR signed the withdrawal and authorised his solicitors to lodge it on the understanding that he had made a valid application for a protection visa. His solicitors had advised him that it would be preferable to have all of his protection claims considered in relation to an application for a protection visa rather than as part of the issues raised by the decision under s 501CA(4).
KQHR and his solicitors made their decision aware that the Department had, on 13 February 2018, notified his solicitors that it had accepted his application as a valid application. Its acceptance was consistent with the earlier statement made in the reasons for decision dated 20 December 2017 that the delegate considered:
“… that it is unnecessary to determine whether non-refoulement obligations are owed in respect of … [KQHR] for the purposes of the present decision as he is able to make a valid application for a Protection visa, in which case the existence or otherwise of non-refoulement obligations would be considered in the course of processing that application.”[2]
[2] Reasons for decision at [52]
On 8 March 2018, which was the date set for the Tribunal’s hearing, the Department arranged an interview with KQHR regarding his application for a protection visa. It had arranged it for 13 March 2018. On the previous Friday, 9 March 2018, an officer of the Department contacted KQHR’s solicitor, Ms Kerdo, to advise that KQHR’s application for a protection visa was not a valid application. It was not valid because he had previously applied for, and been refused, a protection visa in 1994/1995.[3]
[3] The effect of s 48A of the Migration Act is that a person who is a non-citizen and who is in the migration zone, as KQHR is and has been, may not make a further application for a protection visa if a previous application has been made and refused. The only qualification is found in s 48B. Under that section, the Minister may give a written notice to a particular non-citizen determining that s 48A does not apply to prevent an application for a protection visa. The Minister may only make that determination if he thinks that it is in the public interest to do so. The power to make the determination may only be exercised by the Minister personally and may not be delegated to another. While the exercise of Ministerial power under s 48B remains a theoretical option, it is difficult to envisage that the Minister would exercise the power in the circumstances of this case. For all practical purposes, therefore, KQHR is unable to make a further application for a protection visa.
On 15 March 2018, which was the last day on which the Tribunal would have made its decision had KQHR not withdrawn his application, his solicitors lodged an application for reinstatement of his application for review. I set the application down for hearing at 3:00pm on that day and heard submissions by Ms Kerdo, solicitor for KQHR, and Mr Grant, solicitor for the Minister. Submissions were directed to whether I should reinstate the application and, if I were to reinstate it, what would follow. It was accepted by both that, if I were to reinstate the application, the 84 day time period would continue to run from 21 December 2017. There would be no time to hear the application on its merits. That would be so quite apart from the fact that the Tribunal had cancelled arrangements for KQHR to be brought to the Tribunal for the hearing on 8 March 2018.
For the reasons I set out below, I decided to reinstate KQHR’s application under s 42A(10) of the AAT Act and then, on the assumption that the 84 day time limit fixed by s 500(6L) applied, proceeded to give my decision having read the papers before hearing the application for reinstatement. My decision was to affirm the decision made by the delegate of the Minister dated 20 December 2017 and given to KQHR on 21 December 2017. I advised the parties that I would not give oral reasons for my decision made under s 43 of the AAT Act but would give written reasons as soon as possible.
WITHDRAWAL OF APPLICATION AND APPLICATION FOR REINSTATEMENT
Section 42A(1A) provides that a person may withdraw or discontinue an application for review at any time. When an applicant does so, as KQHR did in writing through his solicitors on 7 March 2018, the Tribunal is taken to have dismissed the application without proceeding to review. That is the effect of s 42A(1B) with reference to, in this instance, s 42A(1A) of the AAT Act.
Sections 42A(8) to (10) provide for reinstatement of an application that has been taken to have been dismissed under s 42A(1B) or that has been dismissed in error. Two avenues are provided for in the circumstances of this case. One is provided for in ss 42A(8) to (9) and applies when the Tribunal is taken to have dismissed an application under s 42A(1B). The other is provided for in s 42A(10) and is relevant when it appears that an application has been dismissed in error. Submissions were made in the context of s 42A(10) but the matter could have equally been considered under ss 42A(8) to (9) for the application for reinstatement was made within the time provided for in s 42A(8B). I have considered the application for reinstatement in light of the provisions of s 42A(10) but note that, putting aside the need to establish an error under s 42A(10) and the need to establish special circumstances if an application under s 42A(8) is made outside the prescribed time limit, similar factors are otherwise relevant in determining an application for reinstatement under either ss 42A(8) to (9) or under s 42A(10). I have considered the application under s 42A(10) but would have reached the same decision for the same reasons under ss 42(8) to (9).
Power of reinstatement under section 42A(10)
Section 42A(10) provides:
“If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.”
If it is decided that an application has been dismissed in error, that does not mean that the Tribunal will necessarily reinstate it. That follows from the fact that s 42A(10) provides that the Tribunal “may … reinstate the application and give such directions as appear to it to be appropriate in the circumstances.” (emphasis added)
What is meant by “dismissed in error”?
Section 42A(10) does not give any guidance as to when an application has been “dismissed in error” or the relevant considerations that guide the exercise of the discretion given to the Tribunal. Beginning with the words “dismissed in error”, I note that, in a joint judgment in Goldie v Minister for Immigration and Multicultural and Indigenous Affairs,[4] Wilcox and Downes JJ considered whether the Tribunal itself had to be in error in order to enliven the power given by s 42A(10). They decided:
“… The stated condition for the exercise of the subs (10) power is that ‘it appears to the Tribunal that an application has been dismissed in error’. The subsection does not impose any qualification or limitation on the word ‘error’.
The only limitations that we can see in s 42A(1) are:
(i)that the Tribunal has dismissed the application; and
(ii)that the act of dismissal was attended by error.
We do not think it necessary, in order to enliven the Tribunal’s power under s 42A(1), that the Tribunal, or a member or employee of the Tribunal, should have been at fault in relation to the dismissal. The fault may have lain elsewhere, provided it induced error. For example, because of a mistake as to his or her instructions, a solicitor or other representative of a party might have wrongly consented to a dismissal order or filed a notice of discontinuance. No fault would attach to the Tribunal; but, if the solicitors’ mistake induced the dismissal of the action, it could properly be said the application had been ‘dismissed in error’.”[5]
[4] [2002] FCAFC 367; (2002) 121 FCR 383; 36 AAR 238; 72 ALD 652; Wilcox, Carr and Downes JJ
[5] [2002] FCAFC 367; (2002) 121 FCR 383; 36 AAR 238; 72 ALD 652 at [27]- [29]; 388; 657
In a separate judgment, Carr J expressed a similar conclusion but said that, as a matter of construction, he would confine the operation of s 42A(10) to dismissals which have been made under s 42A itself but which have been made in error rather than to dismissals generally.[6]
[6] [2002] FCAFC 367; (2002) 121 FCR 383; 36 AAR 238; 72 ALD 652 at [73]-[78]; 397-398; 666
On behalf of the Minister, Mr Grant submitted that KQHR had simply had a change in the approach that he wished to take and that a change in forensic tactics could not be regarded as an error. Had KQHR’s application for reinstatement been made simply on the basis of a forensic decision that is now unpalatable to him, I would not have considered his application for reinstatement further. Before I can consider his application, there must have been an error that led the Tribunal to dismiss the application. As the Tribunal was taken to have dismissed the application by virtue of s 42A(1B) after his solicitor lodged his notice of withdrawal, the error must have infected the decision to lodge the notice if it is to be an error that enlivens the discretion given under s 42A(10) to reinstate the application for review.
The error that led to KQHR’s decision to withdraw his application for review of the delegate’s decision under s 501CA(4) was his understanding that he could apply for a protection visa. He could not do so because the error that he made was caused by two subsidiary errors. One was his own error and that came about because he had forgotten that he had previously applied for a protection visa. That might be thought to be a difficult thing to forget but the Psychological Report of Ms Laura Anderson dated 19 May 2017 and her Supplementary Psychological Report dated 10 November 2017 both refer to its being likely that KQHR suffers from some form of cognitive deficit due to his past drug use and overdoses.
The other error was an error of the Department. It was the error it made in treating KQHR’s application for a protection visa as a valid application and making arrangements for interviewing him that were consistent with its treating his application as valid. It was the Department’s treatment of KQHR’s application for a protection visa as a valid visa that was the basis for KQHR’s solicitors advising him to withdraw his application for review of the decision under s 501CA(4). It was not his error in forgetting that he had previously made a protection visa for Ms Kelso, his solicitor, had assessed that he appeared to be suffering from memory loss. Her assessment was not a medical assessment but it was a pragmatic assessment that a lawyer would commonly make. That she made that pragmatic assessment is supported by the fact that she did not advise KQHR to withdraw his application for review on the basis of his indication of not having made an earlier application for a protection visa. She only advised him to do so once she had received notice from the Department that the application was a valid application and an appointment had been fixed for KQHR’s interview with an officer of the Department. The basis of her advice was that she thought it better that his claims for a protection visa be considered in the context of an application for a protection visa and not be considered as simply one of the issues in the wider ranging review of the decision made under s 501CA(4).
I am satisfied, therefore, that the legal advice that KQHR received and on which he based his decision to withdraw his application for review was based on an erroneous understanding that his application for a protection visa was a valid application. That is not an error of forensic tactics but of substance. It was an error that led KQHR to change his position in substance and it was an error that led to his application being taken to be dismissed by operation of s 42A(1B) of the AAT Act. I am satisfied that it is an error within the meaning of s 42A(10) and so enlivens the discretion conferred by that provision.
What are the parameters of the discretion conferred by section 42A(10)?
In the case of Re White and Secretary, Department of Families, Community Services and Indigenous Affairs[7] and the earlier case of Re Oates and Secretary, Department of Social Security,[8] I considered the matters to which I should have regard in exercising the discretion granted by s 42A(10). It seems to me that the following factors continue to be relevant in considering whether or not a matter should be reinstated:
[7] [2017] AATA 1712; (2007) 97 ALD 204; 46 AAR 208
[8] [1994] AATA 252; (1994) 37 ALD 241
(1)Consideration of an application for reinstatement should be based on the premise that, provided the applicant’s conduct has not prejudiced the other party or parties, that applicant should not be prevented from presenting his or her case.
(2)Fairness between the parties is also relevant. If, for example:
(a)one party has changed his or her position in light of the dismissal of an application, that will be a relevant consideration in determining what is fair; and
(b)the time lapse between dismissal and application for reinstatement is lengthy and without an adequate explanation, that will be a relevant factor.
(3)Fairness must also be considered in the broader context of the system of decision-making and merits review within which the decision has been made and the application for review made and then dismissed. Whatever the details of the particular system that Parliament has put in place, it will be a system designed to ensure consistency of process and of decision-making in a particular area and to ensure that matters to a final resolution after being given proper consideration. The interests of all persons whose interests are affected by the scheme should be kept in mind in balancing notions of fairness.
(4)Would the application, if reinstated, have merits? Would the applicant have an arguable case? A detailed consideration of the evidence is not appropriate in answering these questions. It is generally sufficient:
“… to merely identify the factual assertions which the applicant made … and then to consider whether the application of the law to those assertions would bring about the result for which the applicant contends. … ”[9]
There may be occasions on which a party may wish to challenge the veracity of a particular fact that is essential to an applicant’s case and which would lead to his or her being unsuccessful if not established. A case such as this, which ultimately depends on the exercise of a discretion is not a case of that sort.
[9] Windshuttle v Deputy Federal Commissioner of Taxation [1993] FCA 553; (1993) 46 FCR 235; 93 ATC 4992; 27 ATR 88 at [26]; 243; 4,999; 95 per von Doussa J
Reasons for reinstating KQHR’s application
In this case, I was satisfied that KQHR’s withdrawal of his application on the day before the day scheduled for a hearing did not prejudice the Minister beyond his probably having to bear the costs of his solicitors’ having prepared for the hearing. Witnesses would not have been inconvenienced for there is no indication that the Minister would have changed what seems to be his usual practice of not calling any in support of his case. I have no knowledge of what the costs might have been but, apart from the cost of appearing at the application for reinstatement, they would be no more than if the case had been heard for it is to be expected that the preparation for the hearing would have been done, or well underway, by that time. It was not a case in which the Minister would incur further costs when his solicitors had to refresh the preparation because there was a delay between the day originally scheduled for hearing and a later day. Given that we all assumed that the day on which the application for reinstatement was heard was the last day on which the matter could be decided, there was no opportunity to defer the hearing to a further date.
It is difficult to see how reinstatement could be unfair to the Minister but refusing to reinstate would, in the circumstances of this case, have been unfair to KQHR. He withdrew his application on the understanding, and after receiving advice, that the Department had accepted his application for a protection visa as a valid application. Certainly, it could be said that he made a forensic decision to pursue his application for a protection visa rather than to continue with his application to review the decision made under s 501 of the Migration Act. Given his history of drug abuse, I accept that KQHR’s memory is poor. Given that, I also accept that he had forgotten that he had made the previous application so that his decision to choose to pursue one application rather than the other was based on a mistake of fact regarding the validity of his application for a protection visa. It was an error to do so but it was an error reinforced by the Department’s acceptance of his application for a protection visa and by its fixing an interview date and putting in place the steps to process it.
This is an unusual situation. Reinstatement of KQHR’s application does not disturb the general scheme of decision-making in the Department or review in the Tribunal. Other applicants have not been disadvantaged in any way by reinstating his application a few days after he withdrew it.
I considered the merits of KQHR’s application. There was no doubt that he failed the character test under s 501 and that the whole of his case had to be focused on the exercise of the discretion conferred by that section. In such a case, the “prospects of success” test is a little difficult to apply. It is not a case in which the test applied in Windshuttle and in many of the Tribunal’s other jurisdictions is entirely appropriate. That test requires identification of the factual assertions made by an applicant and then an assessment of whether the application of the law would bring about the outcome for which the applicant contends. That test is appropriate when the matter will ultimately be determined on the law and on findings of fact made on the evidence without reference to a discretion. When a matter is to be decided solely on the basis of the exercise of discretion as it is in this case, it seems to me that the merits of the application must be considered from a broader base. In this case, that broader base is that there are aspects, beyond simply his wish to remain in Australia, that would support a decision favourable to him. There are also aspects that would not support such a decision but this is not the time at which to put the competing aspects in a balance. It is enough that there are aspects favouring his case.
Having regard to all of these matters in the context of a matter that effectively decides whether KQHR may continue to live in Australia, I decided to reinstate his application.
DEEMING PROVISIONS OF SECTION 500(6L) APPLY ONLY WHEN TRIBUNAL DOES NOT MAKE A “DECISION” WITHIN 84 DAYS
In so far as it is relevant, s 500(6L) of the Migration Act provides:
“If:
(a)an application is made to the Tribunal for a review of a decision under … subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone; and
(c)the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975, in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.”
Deeming provisions of section 500(6L) do not apply when a decision made under section 43 of the AAT Act even though reasons for decision not given
Section 500(6L) makes no reference to the reasons for the decision’s being given; only to the making of the decision under one of the specified sections. Section 43 is the section under which the Tribunal makes its decision on the merits of the decision of which review is sought when the parties do not reach agreement.[10] Section 43 clearly distinguishes between making a decision and giving reasons for making that decision. Beginning with s 43(1), it provides:
[10] Section 42C is applicable when the parties have reached agreement on the decision that should be made. No mention is made of s 34D, which would be applicable if the parties reached agreement after an alternative dispute resolution process. Sections 42A and 42B are concerned with procedural powers of the Tribunal in relation to discontinuance, dismissal and reinstatement of the application for review.
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”
Section 43(3) requires the Tribunal to “… cause a copy of its decision to be given to each party to the proceeding.” Evidence of a decision made by the Tribunal is dealt with in s 43(4), which also deals with evidence of its orders. It provides:
“Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar, to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order.”
No mention is made in ss 43(1), (3) or (4) of reasons for decision. Reference is made only to the decision and that is also true of ss 43(5AA), (5AB), (5AC), (5A), (5B), (5C) and (6). Reasons for decision are dealt with separately. Subject to s 43 itself and ss 35 and 36D, which are concerned with various aspects of confidentiality, the Tribunal must give reasons either orally or in writing for its decision. That is the effect of s 43(2). If the Tribunal chooses to give reasons orally and not in writing, a party to the proceeding may ask the Tribunal for a statement in writing of its reasons for its decision. That is the effect of s 43(2A). Section 43(2B) requires the Tribunal’s written reasons to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. Section 43(5) provides that ss 43(3) and (4) “… apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision.”
It is clear that ss 43(2), (2A), (2B) and (5) apply only to reasons for decision and that the remaining subsections of s 43 apply to the decision. The distinction between a decision and the reasons for that decision is clearly made. That is the distinction that is maintained in s 500(6L) of the Migration Act. As that section refers only to a decision’s not having been made under s 43, as opposed to reasons for decision not having been given, it will not deem a decision to have been made if the decision is made within the 84 day period following an applicant’s having been notified of the decision by a delegate of the Minister but the reasons for that decision are not.
Deeming provisions of section 500(6L) do not apply when a decision has been made under sections 42A, 42B or 42C as well as section 43 of the AAT Act
The decision that is made under s 43 in relation to an application for review of a decision made by a delegate of the Minister under s 501 of the Migration Act is a decision that finally resolves the matter. The Tribunal’s powers are exhausted. The same would be true if the decision had been made under s 42C after the parties reached agreement as to the terms of the decision the Tribunal should make. The decisions made by the Tribunal under ss 42C and 43 are clearly decisions made “in relation to the decision under review” as described in s 500(6L).
For the most part, ss 42A and 42B give the Tribunal power to dismiss an application without proceeding to review the merits of a decision or complete a review if certain conditions are met. Although not described as a “decision” in either s 42A or s 42B, the Tribunal does make a decision to dismiss an application if those certain conditions are met. If it exercises that power, that is an end of the matter and file is closed. It is difficult to describe the dismissal decisions as being made “in relation to the decision under review” as such for they are in relation to the application for review of the decision. It is clear from the context of s 500(6L), however that the words “in relation to” are intended to be read very broadly to go beyond decisions relating to the decision under review as such and to extend to the application for review that relates to that decision. In the case both of a decision under s 42C or s 43 or a decision to dismiss an application under s 42A or 42B, that the matter has come to an end. If the Tribunal dismisses an application for review of a decision made by a delegate of the Minister under s 501 under either s 42A or 42B within the 84 day period referred to in s 501(6L), the deeming provisions of that section do not apply just as they do not apply if a decision is made under s 42C or s 43.
Not all decisions made under s 42A result in dismissal, though. As I have set out above, ss 42A also provides for reinstatement of an application after it has been dismissed. If a decision to dismiss an application under s 42A or s 42B is a decision “in relation to the decision under review”, those words must be broad enough to encompass a decision reinstating that application. In this case, I made that decision within the period of 84 days after KQHR was notified of the decision under review in accordance with s 501G(1). It would follow that the provisions of s 500(6L) deeming a decision to have been made under s 500(6L) would not have come into operation and the merits of KQHR’s application could have been heard. As matters turned out, the parties and I proceeded on the basis that, if I were to reinstated the matter as I did, I would have to make a decision under s 43 of the AAT Act or let the deeming provisions of s 500(6L) take effect. I decided to review the decision on the papers even though hearing the matter on what was agreed to be the last day before the deeming provisions applied meant that I could not hear KQHR give evidence or be cross-examined.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which the Minister has cancelled KQHR’s visa. They also provide the basis on which I must consider his request for revocation of the decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“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:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; 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.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(c) are relevant for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(d) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
KQHR has been sentenced to terms of imprisonment much in excess of 12 months. That brought him within the terms of s 501(3A)(a)(i). As he was serving a sentence of imprisonment on a full-time basis for an offence against the law of, in this case, the State of Victoria, he came within the terms of s 501(3A)(b). That meant that the Minister was required to cancel his visa.
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[11] Section 501CA(4) provides that:
“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.”
[11] Migration Act; s 501CA(1)
In the circumstances of this case, KQHR cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test set out in s 501(7). That follows from the fact that he had been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[12]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[13]
[12] [2016] FCA 1166
[13] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
BACKGROUND
KQHR, who was born in 1954, arrived in Australia with his father, brother and two sisters on 1 July 1967. The family had travelled from Iran where KQHR’s mother and two aunts and uncle remained. His father had divorced their mother before coming to Australia. They arrived in Melbourne where approximately 30 uncles, aunts and cousins already lived.[14]
[14] G documents at 230
KQHR attended school but left after completing Form 3. He speaks English fluently but officers of the Department have noted that he does not seem to be very articulate at various times. He no longer speaks Persian or Arabic. KQHR is a member of the Assyrian Church. He lists pottery as a hobby. He is heavily tattooed on various parts of his body including his arms neck, chest and stomach.[15]
[15] G documents at 202
THE CONVICTIONS AND EVIDENCE
In this section of my reasons, I will set out KQHR’s convictions interspersed with other relevant material in a chronological fashion. In the absence of the relevant police files, I am unable to determine when the offences were committed as opposed to when convictions were recorded. I have also included material relating to warnings given to KQHR as well as a reference to the relevant direction that the Minister had made under s 499 of the Migration Act and that decision-makers were required to take into account in making a decision whether or not to, as in the circumstances of this case, cancel a visa.
Court
Court Date
Offence
Court Result
Melbourne Children’s Court
28 June 1968
Forgery (5 charges).
Uttering (5 charges).
Admitted to SWD (Social Welfare Department).
Melbourne Children’s Court
13 September1968
Care and Protection.
Admitted to the care of the Social Welfare Department and he became a Ward of the State at the age of 14 years.
A note in the Department’s files dated on or about 17 June 1983 stated that “He was considered to be beyond the control of his father and made a ward of the state at the age of 14. He has offended regularly ever since.”[16]
Sydney Children’s Court
7 July 1969
Vagrancy.
Committed to an institution.
Brisbane Children’s Court
24 November 1969
Break and Enter with Intent.
Admitted to care of Director of Child Services.
Melbourne Children’s Court
10 February 1970
Care and Protection application.
26 weeks probation.
Footscray Magistrates Court
9 July 1970
Larceny.
Illegal use of motor car.
Unlicensed.
2 years’ probation.
Melbourne Children’s Court
22 September 1970
House break and steal.
House break and steal (4 charges).
1 month youth training centre.
Probation for 52 weeks.
Moonee Ponds Children’s Court
9 November 1970
Attempted house break and steal.
(Disturbed when attempting to break in)[17]
House break and steal (2 charges).
(Kept nit while two friends broke into houses and stole property.)[18]
4 months youth training centre.
A letter dated 3 February 1971 and signed by the Director of Youth Welfare reported on KQHR’s period of care. At the time, he was at Morning Star Youth Training Centre. He noted that KQHR had been erratic and unstable not only in terms of his behaviour but in response to situations both within and with out institutions. The letter continued:
“ In many respects both ... [KQHR] and … his brother, have reacted to the turbulent and stormy atmosphere in their home. The father, in particular, appears to be a tyrannical and sometimes violent man and the boys have been spirited in their opposition to his control. However, they have shown a poor adaptation to employment and neither lad has a particularly good work record over the past few years. Possibly, again, ... [KQHR]’s instability in this area is associated with the fact that he has been going backwards and forwards between his parents and Turana Youth Training Centre. It is difficult to assess his potential in terms of a stable adjustment in view of the above factors and ... [KQHR]’s own rapid changes in allegiance to his family.
Over all his prognosis is not particularly good and the family situation remains as unpredictable as ever. We are concerned that ... [KQHR] could easily lapse back into impulsive anti-social behaviour at any time. This prognosis must be taken in balance with the extremely difficult circumstances he has had to cope with since arrival in this country.”[19]
In a minute dated 2 February 1971, the Department set out a lengthy history relating to KQHR’s family. Its officers had been unable to locate KQHR’s mother and relied on what her ex-husband had said about her. He told them that he had brought her to Australia in 1969 to be a friend and to help their sons but, in his view, she had failed in both roles. The Department summarised the position:
“It is quite apparent that ... [KQHR] has lacked any firm parental control. On one hand we have his father who is apparently unable to control him, and on the other we have his mother who seemingly either condones her son’s actions and choice of friends or cares little what he does.
Both …[KQHR] and his brother… are swiftly acquiring a formidable criminal history, and it is considered that if both of them are not pulled up now, they will continue to offend. Their parents are apparently unable to exert any influence over them, and perhaps our Department should take the place of their parents in this instance, in that severe warnings to be issued to the effect that should either them again come into conflict with the law, serious consideration will be given to their enforced departure from Australia.
In the case in question, one must remember that the offender is only sixteen years of age, and is on that basis, more than any other, that a warning is recommended.
… [KQHR] will be eligible for release on 8th November, 1971, but his wardship will commence on that date, and expire 24th April, 1972.”[20]
On 26 March 1971, an officer for the Commonwealth Director of Migration wrote to the Secretary of the Department recommending that both KQHR “… and his brother … , be issued with stern warnings regarding the consequences of further transgressions of the law.”[21]
Mornington Children’s Court
5 July 1971
Escape from lawful custody.
Returned to the Social Welfare Department.
In a minute dated 7 October 1971 to the then Acting Minister, the Secretary of his Department wrote, in part:
“13. Summary:
… [KQHR] is the product of a broken home and his behaviour reflects this. His father has been described a tyrannical and sometimes violent man and both … [KQHR and his brother] (the latter’s record to this time would not justify consideration of deportation) have been spirited in their opposition to his strict control. This factor apart, neither of the boys have good work records and their future behaviour is difficult to predict.
In view of ... [KQHR]’s age on arrival, the presence of all family members here and because to this time he has not been convicted of particularly serious offences, his deportation could not be justified.
14. Recommendation
I recommend that … [KQHR] not be deported but that he be warned in the hope that it, coupled with the period of confinement which he has spent in a Youth Training Centre, will deter him from committing further crime. His brother will, of course, be also given an appropriate warning. This will be done in the presence of their father in the hope that he will come to realise the need to develop a more harmonious relationship between the family members and influence his sons to become good citizens.”[22]
The warning was given to KQHR in the presence of his father on 18 November 1971.[23]
Footscray Magistrate’s Court
2 December 1971
Armed with offensive weapon/instrument.
Fined $50.
Melbourne Magistrates’ Court
12 April 1972
Attempted false pretences.
Fined $50.
Broadmeadow Magistrates’ Court
17 April 1972
Wilfully damage property.
Fined $200.
When officers of the Department interviewed KQHR’s father on 4 May 1972, he told the officer that he was quite unaware that his sons were in prison and asked for details regarding their offences. The officer told him that his sons had rendered themselves liable for deportation. The officers felt that KQHR’s father appeared to be a very bewildered parent who had seen his sons rapidly grow away from him. His father:
“… inferred that he could not adequately deal with his two boys and rather have someone else attempt to rectify the matter. … [KQHR’s father] has an obsession about corporal punishment and feels that it is the only way to bring … [KQHR and his brother] into line.
…
From the interviewers point of view … [KQHR] has lost control of his sons and more importantly has also lost their confidence. It is not considered that he would be of any aid to … [KQHR and his brother’s] successful rehabilitation.”[24]
Melbourne County Court
1 June 1972
House break and steal (2 charges).
18 months’ imprisonment on each count concurrent.
In passing sentence, Judge Gray noted that KQHR had stolen $450 from the householder’s wallet on the first occasion and a quantity of clothing from the second house. He referred to the long list of previous convictions and found that the offences for which he was passing sentence were free from any mitigating circumstances that he could detect.[25]
A report from Pentridge Prison dated 20 July 1972 reports that KQHR’s conduct and industry are “unsatisfactory”, that he was in “H” Division for 28 days and that he had been remanded to appear before the Visiting Magistrate to answer various charges. His prospects were noted at “extremely poor”.[26]
Melbourne County Court
8 September 1972
Assault occasioning actual bodily harm (2 charges).
6 months’ imprisonment on each count.
The details of the assault were that, together with six other youths, KQHR had assaulted and kicked both the Guard and Train Driver at the Glenroy Railway Station. The sentencing Magistrate described this as a “vicious assault”.[27]
A report prepared by the Department and dated 9 November 1972 summarises an interview with KQHR. It records that he had been warned by the Department on 18 November 1971. He could offer no explanation for his conduct other than that his friends had a bad influence over him.
“Initially … [KQHR] stated that he wished to stay in Australia in view of his family here. Then he said he could not care less what happened to himself.”[28]
The minute that was written to the Secretary of the Department on 9 November 1972 related to both KQHR and his brother who had acquired his own sizeable criminal record by this time. It recorded that their father had brought his two sons and two daughters to Australia without his estranged wife. She had joined them in 1969 for the sake of the children but the reconciliation was unsuccessful. The minute continued:
“It would seem that the long standing estrangement of the father and mother has been a contributing factor to the lawlessness of the … brothers.
... [KQHR] was issued with a warning at this Office on 18th November, 1971 in the presence of his father. It was intended also that … [the brother] be warned at the same time but it was ascertained that he was in prison.
Neither brother appears to have any prospects of a successful rehabilitation and both are subjects of very unfavourable prison reports.
… [KQHR] (Senr.) when interviewed remarked that his sons might as well be dead if they were to be deported as they would be returning to a near alien environment where no relatives or friends exist. However, since their arrival in Australia the brothers by their continuing criminal activities appear to prefer the alien environment of prison life.
… [KQHR’s brother and KQHR] were 14 and 13 years of age respectively when they migrated to Australia and it therefore is considered that they have spent several formative years in this country. Bearing this in mind and also the presence in Australia of their father and sisters it is recommended that in this instance both brothers be issued with a severe warning, concerning the consequences of future transgressions.”[29]
The recommendation that was ultimately made to the Minister of the day reflected these views including the expression of grave reservations regarding the brothers’ prospects of rehabilitation. It reframed their issues:
“ The … brothers are unfortunate products of a broken family and I feel that the blame for their decline cannot rest entirely on them. … [KQHR] Snr, migrated to Australia with his two sons and two daughters while his wife remained in Iran. … [KQHR’s mother] came to Australia two years later and rejoined the family. However, she stayed with the family for only a few months and then went her own way leaving the children with the father.
The one factor which brings some hope to an otherwise gloomy situation is their relative youth. Whilst one cannot be optimistic in the present circumstances, it is possible that with maturity and if they discontinue keeping bad company their prospects could improve.
In view of the above factors and because the brothers have spent their formative years in Australia and the presence here of their immediate family, I do not see deportation as being appropriate.
RECOMMENDATION
I recommend that … [KQHR and his brother] not be deported and that they be accepted as contingencies to our immigration program.”[30]
A report sent by Telex to the Department on 1 August 1973 does not record its sender. It is a summary of the behaviour of the brothers in prison. KQHR’s conduct was described as “… poor, has several breaches of regulations such as fail obey orders, abusive language etc”. He was described by the Governor of the Geelong Prison as a “layabout” and the Governor could see very little hope for KQHR’s changing his ways.[31]
KQHR’s father was interviewed by an officer of the Department on 3 August 1973. The officer reported, in part:
“… [KQHR’s father] interviewed today.
He was as vague as ever in his ideas regarding his sons future prospects and still felt that some other body (governmental) should help him in bringing his children into line.
…
… [KQHR’s father] said that he believed his sons would return to live with him though he was not entirely sure of this.
He went on to say that the rest of the family are good behaviours and blames … [KQHR] and … [KQHR’s brother] present circumstances on bad companions.
When asked what might happen if his sons were deported he said that while it might be a good idea if he went back to Persia with them he could not see himself leaving Australia.
… [KQHR] said that he was paying off a house here and has two daughters who have grown to like Australia and would not wish to leave. He mentioned that he re-married but that his wife has a habit of deserting him at the drop of a hat.
He stated that he is getting a trifle old to start life anew and believes that his sons would have employment difficulties in Persia due to lack of Persian education.
He admitted that he could give no guarantee whatsoever that … [KQHR] and … [KQHR’s brother] would refrain from offending in the future.”[32]
A memorandum from the Melbourne office of the Department of Immigration and addressed to the Secretary in Canberra reads: “… [KQHR] was issued with a warning regarding the consequences of further transgressions of the law on 14th September, 1973.”[33]
Moonee Ponds Magistrates Court
12 September 1974
Shorten barrel to less than 16 inches.
Felon in possession of firearm.
9 months’ imprisonment on each charge concurrent.
St Kilda Magistrates Court
12 August 1977
Sell heroin.
Fined $400.
Moonee Ponds Magistrates Court
24 February 1978
Armed with offensive weapon/instrument.
14 days’ imprisonment.
Melbourne County Court
3 April 1978
Robbery in company.
Robbery in company (5 charges).
4 years’ imprisonment.
3 years’ imprisonment on each count concurrent.
Total 7 years.
Judge Read passed sentence on 27 April 1978 after KQHR had pleaded guilty to six counts of Robbery that had occurred in the early hours of 29 May 1977. KQHR had entered premises with an accomplice and had menaced the occupants with a sawn-off shotgun and stolen money. He had been seeking to recover money he had paid in exchange for heroin but had in fact been given an aspirin type powder. Judge Read told KQHR that he was not entitled to take the law into his own hands and referred to his previous offending including being armed with an offensive weapon, attempted false pretences, assault occasioning actual bodily harm and wilful damage. He continued:
“… In relation to the sentence that I now have to impose, perhaps the most relevant prior conviction you have acknowledged is that on the 12th September, 1974, you were convicted of being a felon in possession of a pistol and shortening the barrel of a rifle. On that occasion you were sentenced to imprisonment for nine months on each charge to be served concurrently. That fact that you have already served a term of imprisonment of being in possession of a pistol and shortening the barrel of a rifle, that did not deter you from purchasing the shotgun that you used on this occasion and did not deter you from sawing a portion of the barrel off the shotgun which indicates to me that serving nine months imprisonment was not sufficient to deter you from again purchasing a fire-arm, shortening the barrel, and then using the weapon for an armed hold-up. Armed robbery has become a very serious problem in this community and those who are minded to commit armed robberies must understand they cannot expect leniency from the court. …”[34]
Melbourne County Court
1 August 1978
Burglary (9 charges).
Burglary (22 charges).
Att Burglary (2 charges).Handle/receive/retention stolen goods.
9 months imprisonment on each count.
9 months imprisonment on each count concurrent and concurrent.
Melbourne Supreme Court
1 February 1979
Theft of motor vehicle.
Use in commission of felony (2 charges).
2 years’ imprisonment on each count concurrent and concurrent.
Total 8 years, 5 years concurrent with sentence undergoing.
Melbourne Supreme Court
1 February 1979
Armed robbery (2 charges).
Robbery
8 years’ imprisonment on each count concurrent.
KQHR served part of his term of imprisonment at HM Prison Castlemaine. The prison officers reported on 16 August 1983 that KQHR’s conduct had been good and that he had presented no management problems. He was always cooperative and, although he had been somewhat “cocky” to begin with, had settled down well. KQHR worked as the prison barber or hairdresser as he had done at Pentridge. Although there was no report by the prison’s visiting psychologists, the prison officers thought that KQHR had matured considerably since committing the offences over six years before.
Between his arriving in March 1983 and KQHR had seven visits at Castelmaine. Two of those were from a woman whom he said he had met before his imprisonment in 1978.[35] Although they had never lived together, he regarded her as his de facto wife and regarded her son by a previous relationship as his child. In speaking with an officer of the Department at Castelmaine on 5 July 1983, KQHR stated that he intended to live with the woman and her son at his mother’s home when he was released from prison. He had been living with his mother before his incarceration in 1978.[36]
In that same interview, KQHR expressed his surprise and shock that he received such a long sentence from the Supreme Court. He felt that the theft of $400 using an imitation pistol was not worth so many years of his life. He told the Department’s officer that he had committed the robberies, armed robberies and theft because he was unemployed, had no money and had a drug habit to support. He claimed that his co-offender was the instigator of the offences.
During the interview conducted on 5 July 1983, KQHR:
“… attributed his early introduction to crime to his family background and the circumstances of his childhood. He migrated to Australia with his father in 1967 and the family were not joined by their mother until 1969. … [KQHR] that his father was something of a disciplinarian and sometimes quite violent towards his sons. As a result of this and the absence of their mother, both … [KQHR and his brother] rebelled and were considered to be beyond their father’s control. ... [KQHR] was made a ward of the State at the age of 14 and placed in Turana Youth Training Centre for his ‘care and protection’.
He states that although he committed his first offence shortly after his admission to Tuarana and has offended since only when unemployed or in need of money. Note that most of his convictions have been for crimes against property.
… [KQHR] describes himself as a petty criminal. He states he is not dangerous and the ‘weapon’ used in the armed robberies was an imitation pistol. As previously mentioned his addiction to heroin was an important contributory factor in his latter spate of burglaries. … [KQHR] states his drug cost him approximately $100 a day. When asked how he had obtained this money he replied that he had some money prior to his addiction and also that he as an addict for only 6 months, a relatively short time. This is a somewhat unsatisfactory answer as this calculates to $18,000 over the 6 month period.
On the question of rehabilitation, … [KQHR] is adamant his lengthy prison sentence has deterred him from further criminal activity.”[37]
The Department’s recommendation dated 22 July 1983 was to recommend that KQHR be given a very strong warning for the following reasons:
“… [KQHR] has a lengthy criminal record in Australia and has been a regular offender. I feel however that it is important to note that many of his offences relate to his past heroin addiction and occurred many years ago when … [KQHR] was younger and, according to others interviewed, immature. Furthermore, … [KQHR’s] serious conviction for armed robbery (2 counts) occurred during one incident when … [KQHR], then a heroin addict, attempted to obtain the drug from known drug dealers. Given this and the deterrent effect of his imprisonment, I do not feel that … [KQHR] poses a danger to the Australian community.
In addition, his young age on arrival in Australia, the absence of relatives in Iran, and the instability of that country, lead me to recommend that a very strong warning be administered to … [KQHR] conditional of course to a review of the case should he re-offend.”[38]
On 18 July 1983, officers of the Department interviewed KQHR’s mother after advising her that her son had rendered himself liable for deportation. The officers considered her to be an intelligent and articulate woman. She told the Department’s officers that her son was welcome to live with her as was his girlfriend and was confident that he could obtain employment at her workplace.
“… [KQHR’s mother] gave a brief account of the family’s background and explained that it was belief that this and the behaviour of her ex-husband pushed both of her sons into a life of crime.
… [KQHR’s mother] stated that her husband had an extra-marital relationship in Iran which resulted in the break up of their marriage. When she left him she was unable to take the children as the father has a stronger claim over them by law. Shortly after the separation … [her former husband] ‘sold everything’ and went to America, taking the older boy, … [KQHR’s brother] with him. The two girls were left in the care of their paternal grandparents and… [KQHR], then aged 8, was placed in an orphanage. … [KQHR’s mother] was not permitted to visit the children. On his return to Iran … [KQHR’s father] lived with his mistress and the children before migrating to Australia.
… [KQHR’s mother] said her husband was a very violent man, extremely volatile, and mistreated the children when they misbehaved as normal children will. She recounted one incident when he had burnt their hands and feet to the point where they could not walk. She also stated he was responsible for their admission to Turana Youth Training Centre. According to her [KQHR] pressed charges against his sons ‘probably for stealing something from the house’ despite police advice that he should drop the charges. … [KQHR’s mother] did not arrive in Australia before the boys had spent a considerable time in Turana when it was ‘too late’ to influence them.
… [KQHR’s mother] feels that as a result of this unstable background ... [KQHR] has developed into a very nervous, easily upset person.
Officers of the Department interviewed KHQR’s fiancée on 16 August 1983. She stated that she and KQHR were engaged to be married and had been for some two years. They would marry about six months after his release from prison. She said that her young son regarded KQHR as his father and that their relationship was that of father and son. He has always been very protective of her and of her son. When KQHR was at Pentridge, she would visit him each week but it was harder now that he had been relocated to Castelmaine. Finances and the fact that she had to travel by train to Castelmaine meant that KHQR’s fiancée did not see him as often during his time there.
KHQR’s fiancée referred to KQHR’s having told her that his father had burnt his hands so that they are scarred and to his continuing to suffer from nightmares as a result of his father’s maltreatment. She felt that KQHR’s use of drugs was a direct result of he experiences as a child.[40]
KHQR’s fiancée was also addicted to drugs. In 1986, Judge Rendit noted that her habit was two caps a day.[41]
On 31 August 1983, an officer of the Department recommended that serious consideration be given to KQHR’s deportation under s 12 of the Migration Act. The recommendation was made in view of the two previous warnings having been given to him without effect and even though he had no family in Iran and the general situation in that country.[42] That recommendation was also made to the Secretary of the Department in a memorandum dated 5 September 1983.
In a Minuted dated 10 September 1984, the Department of Immigration and Ethnic Affairs recommended that KQHR not be deported but that he be given a strong warning. The reasons for that recommendation were summarised:
“ Although … [KQHR’s] offences are serious, deportation is considered inappropriate principally because of his strong family ties, his engagement to marry an Australian citizen and the fact that he migrated to this country at a young age and has spent many of his formative years here.”[43]
A note dated 13 November 1984 on letterhead of the Department of Immigration and Ethnic Affairs records that a warning was administered to KQHR at H.M. Pentridge Prison on 12 November 1984.[44]
In an undated letter to the then Minister for Immigration and Ethnic Affairs, KQHR described his early years and of his coming to Australia. He then wrote:
“ I feel that those early years of unrest and hardship we experienced as a family contributed largely to the problems my brother and I have had with the police. This is not to say I reject responsibility for the actions of the past, on the contrary, I readily acknowledge the fact that I have wronged and in so doing have fully accepted the punishment the Courts have seen fit to impose for my crimes. As I near the completion of this punishment I find there is the possibility of my not being given the chance for a new and happy life but rather a further punishment of deportation which to my mind is far worse than any jail sentence. So Sir, am I wrong in assuming that I am to be punished twice for the same crime? After all this is what it virtually boils down to.
Throughout the five and a half years of my imprisonment many aspects of my past life have become much clearer. When brought into focus, this in turn has given me the chance to identify and understand some of my problems.
As with all my crimes were in one way or another, drug related it is in this areas that I have directed most of my attention, to the point where I asked and now receive professional help from a psychologist named Grant Hinkley.
I hope you can appreciate and understand that a person in a position such as mine, nearing the completion of his sentence, with the prospect of setting up a home with my defacto wife and child that this recent news has distressed and shocked me. Deportation to this country offers me little more than a bullet in the back, which is, at present not an overdramatic statement.
As my mother and family now all live in Australia I have no relatives or friends in Iran. I share no religion with its people and cannot speak the language. I may not be Australian by birth but I am Australian by nature and it is this nature, for want of a better word, that has filled me with longing and hope throughout these troubled times, of a new and better life, which in Iran would not be possible.
I hope these things can be taken into consideration …”[45]
Broadmeadows Magistrates’ Court
16 January 1986
Burglary (3 charges)
Theft (3 charges)
Assault with weapon
14 days’ imprisonment on each charge.
Adult Parole Board
19 March 1986
Breach of parole (adult)
To serve unexpired portion of 2 years, 8 months and 22 days.
Melbourne County Court
30 June 1986
Armed robbery.
12 years’ imprisonment.
Married his fiancée in Pentridge Prison in June 1986.[46]
KQHR was found guilty after a jury trial and was sentenced on 3 November 1986 by Judge Rendit. The offence had been committed on 21 December 1985 in company with his wife. Judge Rendit described the crime:
“… You took with you a loaded shotgun. You broke into those premises and discovered that Mrs M… was at the sink in her kitchen. At the time you were disguised and holding a gun in your left hand. You made her lie down on the floor in the hallway and then pulled her cardigan over her head. You made her take two diamond rings and a gold one off her finger. You also took jewellery to the value of somewhere between $4,000 and $5,800. Of this jewellery, Mrs M… has not recovered anything except some cheapest trinkets, which were produced as exhibits in your trial, and which were found in your possession and that of your wife’s when the police apprehended you.
At about this time Mr M… came out of the bathroom. He was oblivious to your presence or what had taken place. You made him lie face down also in the hallway. Both
M… s were frightened and feared for their life. While this was all proceeding and you and your co-prisoner were searching for jewellery and other valuables, the doorbell rang and rang twice. You continued to search notwithstanding this. You then ushered the M…s into the kitchen.
Mr M slammed the kitchen door shut and you put the gun through the glass in the door. They made their escape over the backfence and you and your companion made good your escape through the front door.I can only say that this armed robbery is a very serious crime. You had with you at all times a loaded shotgun. …
… Anyone who has a loaded gun at the commission of a crime is thereby creating a very dangerous situation. …
…
… I have had the benefit of a pre-sentence report and a psychiatrist’s report and they confirm your heroin addiction. Your addiction is so strong that other considerations as to behaviour are effectively blocked out, but that is no excuse for what you did.
Drug addiction is not a licence to commit crimes to fund your habit. Innocent people are entitled to be protected from drug addicts bent on stealing by whatever means to get money for their habit. The community is sick of the high crime rate that flows from drug related crimes. However, whilst some understanding can be had of simple dishonesty by drug addicts, none can be had of gun toting drug addicts who, because of their addiction, may not be able to reason rationally with a loaded gun in their hand.
…
You have clearly become institutionalised although for the two years of the last two decades that you were free and out in the community you obtained a job. That was in 1975 and 1977. It was in 1977 that you became a drug addict and that marks the time when more serious crimes were committed by you. From the pre-sentence report you appear to exhibit an attitude of not taking responsibility for your actions but view yourself as a scapegoat of the criminal justice system, but that is not so. If you commit serious crimes, then the commission of those crimes will attract substantial sentences which will have a general deterrence content. It is not the person as such who attracts that result but the crime he commits and this applies no matter who the person is.
Whilst much is still to be done for drug addicts in our community, and indeed the need is great as well as the cost of such rehabilitation schemes, it depends ultimately on the drug addict’s attitude whether success can be achieved. If you have no real desire to rehabilitate then there is little that the community can do.
To me, you are a person who is willing to use violence. That is, you will have a loaded shotgun when committing crime. This is not the first time that you have been convicted of armed robbery. You show no real signs of reforming and the risk of you offending again would seem to be significant. It is a tragedy that a person of your age has only time in gaol facing him. One would hope a term of incarceration will cause you to be drug-free. I am not certain that such a hope is nowadays well grounded, having regard to statements made from time to time in the press of the availability of drugs in the prison system, but that is a matter for you.
You have now a wife and you have a son. It is you who, I believe, pull your wife down, not she you. You owe it to her and to your son to make every attempt to conquer your addiction. I am of the opinion that you are a person who uses and will use guns in the commission of crimes. I have seen no suggestion of your reform on your part in this respect in the pre-sentence report and to me you are a person who is likely to do it again.”[47]
Bendigo Magistrates’ Court
9 April 1991
Possess heroin.
5 months’ imprisonment with sentence undergoing.
“Upon my release in 1985 I got out with a bigger heroin addiction that [sic] that I had come in with, giving me absolutely no chance what so ever of leading a normal successful and happy life, proven when I returned to prison four months later.
Whilst at freedom I did try to get help. I was placed on the waiting list at Moreland Hall and was still on the list the day I was arrested. This seven year sentence has allowed me to [sic] the opportunity to take stock of my life which has allowed me to get my act together. I have been drug free from heroin for four and a half years. I have completed the Drug Program and a therapy in K Division. I have developed a support network, found employment and will be living with my older brother when I am released. I will be attending Narcotics Anonymous and continuing to see a therapist. For the first time ever I am mentally and physically in a top frame of mind to lead a normal life and to be a normal everyday citizen who will be an asset to the community.
I am a Catholic, have nothing in common with Persians and do not speak their language. My father worked for the American and British Embassy. It is believed that we were political and religious refugees. I consider myself an Australian and have been here for two thirds of my life. I have religious tattoos on my body one very noticeable cross and chain around my neck totally unacceptable in a fanatic Islamic country. I know I have not been a model citizen, the best is yet to come. I deserve this opportunity to prove myself to me, my family and my country, Australia.
…
In support of my confidence and commitment as an ‘Australian Citizen’, I would not contest a further deportation order if circumstances should ever be presented through adversity.”[48]
Broadmeadows Magistrates’ Court
16 April 1993
Burglary.
Theft (2 charges).
Handle/receive/retention stolen goods.
Use amphetamine.
Handle stolen goods.9 months’ imprisonment, 6 months of sentence suspended for 24 months under section 27 of Sentencing Act.
3 month’s imprisonment on each charge concurrent and concurrent.
Convicted community based order for 12 months. To perform 150 hours unpaid community work.
Convicted and adjourned for 12 months.
Convicted community based order to 15/04/1994. To perform 150 hours unpaid community work.
Ringwood Magistrates Court
3 June 1993
Theft.
Theft of a motor vehicle.Unlicensed driving.
2 months’ imprisonment on each charge concurrent and concurrent.
7 days’ imprisonment concurrent. Disqualified from obtaining any licence for 12 months.
Ringwood Magistrates Court
3 June 1993
Enter building with intent to steal.
4 months’ imprisonment.
Broadmeadows Magistrates Court
13 August 1993
Breach re 16 April 1993
Handle/receive/retention stolen goods.Breach of community based order. Order cancelled.
6 months’ imprisonment concurrent with sentence now serving.Melbourne Magistrates Court
16 June 1994
Unlawful assault (2 charges).
Assault by kicking.
Assault in company.
Unlawful possession (3 charges).All charges adjourned to a date not exceeding 15 June 1995.
Melbourne Supreme Court
30 June 1995
Burglary
4 months’ imprisonment.
Melbourne Magistrates Court
2 April 1996
Theft.
Obtain property by deception (3 charges).
Attempt to obtain property by deception (6 charges).5 months’ imprisonment on each charge concurrent.
Sentence suspended for 2 years under s 27 of Sentencing Act.
To pay $400 restitution.KQHR was given an oral warning followed by a written notice from the Department of Immigration and Multicultural Affairs on 21 June 1996.[49] The written notice confirmed that KQHR’s conviction for Armed Robbery heard in the County Court in Melbourne on 3 November 1986 had rendered him liable for deportation under s 200 of the Migration Act. The written notice said, in part:
“The delegate has decided on this occasion not to order your deportation from Australia on the basis of your convictions. He had difficulty in determining not to deport you and was concerned that you had ignored previous warnings and had continued to engage in serious criminal activities. However, the delegate has indicated that if you re-offend, a greater emphasis would be placed on the interests of the victims, and not on your personal circumstances.”[50]
Melbourne Magistrates Court
11 March 1998
Theft from shop (shopsteal).
Burglary (2 charges)
Theft (2 charges)
Obtain property by deception.
Unlawfully on premises/precinct.
Go equipped to steal/cheat.
Possess a dangerous article.All charges convicted.
Community based order for 12 months.Melbourne Magistrates Court
23 April 1998
Possess cannabis.
Use cannabis.
Possess regulated weapon.
Travel without valid ticket –ptc.All charges convicted and adjourned to 11 March 1999.
Melbourne Magistrates Court
13 December 2000
Carry regulated weapon.
With conviction, fined $200.00 with $33.00 statutory costs.
Preston Magistrates Court
8 August 2001
Possess controlled weapon without excuse.
Fail to answer Bail Granted.
With conviction, fined $200.00.
Proven and dismissed under s 76 of Sentencing Act.
Preston Magistrates Court
8 August 2001
Theft from shop (shopsteal).
With conviction, fined $100.
Direction No. 21 entitled “Direction – Visa Refusal and Cancellation under section 501 – No. 21” and dated 23 August 2001 made by the Minister.
Heidelberg Magistrates Court
13 August 2003
Drunk in a public place (2 charges).
Assault police.
Use threatening words in a public place.Possess a dangerous article.
With conviction, adjourned to 13 August 2004.
With conviction, adjourned to 13 August 2004.
KQHR must continue to attend Ms Coffey or her nominee and must continue to accept the supports offered by the Austin Hospital.[51]Heidelberg Magistrates Court
26 June 2006
Burglary (3 charges).
Theft (3 charges).
Attempt to commit indictable offenceOn each charge:
6 months imprisonment.
Concurrent.On each charge:
4 months’ imprisonment.
Concurrent.
3 months’ imprisonment.
Concurrent.Heidelberg Magistrates Court
14 July 2006
Burglary.
Theft.
5 months’ imprisonment.
4 months’ imprisonment concurrent.
Heidelberg Magistrates Court
13 December 2006
Burglary
TheftAggregate 6 months’ imprisonment.
Concurrent.
Sentence is wholly suspended under s 27 of the Sentencing Act 1991 for 12 months.Melbourne Magistrates Court
15 September 2008
Theft.
Breach re 13 December 2006.
Burglary.
Theft.Aggregate 18 months’ imprisonment. Concurrent. Pay compensation $3,400.
Suspended sentence wholly restored. The restored term to be served is 6 months.Direction No. 41 entitled “Direction [no. 41] – Visa refusal and cancellation under s 501” and dated 3 June 2009.
Melbourne Magistrates Court
15 September 2008
Burglary (7 charges).
Theft (9 charges).
Go equipped to steal/cheat.
Attempt to commit indictable offence.
Fail to answer Bail.
GrantedDeal property suspected proceed of crime (2 charges).
Possess controlled weapon without excuse.
Possess a dangerous article.Aggregate 18 months’ imprisonment.
Concurrent.Aggregate 18 months’ imprisonment.
Concurrent.
One each charge:
aggregate 18 months’ imprisonment.
Concurrent.Aggregate 18 months’ imprisonment.
Concurrent.Melbourne Magistrates Court
13 November 2009
Enter building with intent to steal.
Theft.
Theft from a motor vehicle.Aggregate 4 months’ imprisonment.
Concurrent.
Sentence is wholly suspended under s 27 of the Sentencing Act 1991.
Operational period is 12 months.Convicted and a community based order for 12 months.
Melbourne Magistrates Court
12 August 2010
Possess cannabis.
Without conviction, adjourned to 13 September 2010.
Heidelberg Magistrates Court
12 July 2012
Theft.
Aggregate 12 months’ imprisonment.
Concurrent.
Effective total State term imposed is 1 year concurrent with State sentences presently being served and imposed prior to this day.
Concurrent with other State sentences imposed this day.Heidelberg Magistrates Court
12 July 2012
Breach re 13 November 2009.
Enter building with intent to steal.
Theft.
Contravene community based order.Burglary.
Suspended sentence wholly restored.
The restored terms to be served is 4 months.Proven.
Aggregate 12 months’ imprisonment.
Concurrent.
Pay compensation $2,680.00.Direction No. 55 entitled “Direction no. 55 Visa refusal and cancellation under s 501” and dated 25 July 2012.
Melbourne Supreme Court
22 August 2013
Armed robbery.
Aggravated burglary – offensive weapon.False imprisonment (common law).
5 years, 6 months’ imprisonment.
3 years’ imprisonment. 2 years of sentence concurrent.
2 years’ imprisonment concurrent.The offences for which KQHR was sentenced by the Supreme Court (Court of Appeal) were committed on 3 November 2011 at approximately 10:00am. KQHR broke into a residential property carrying a knife. About an hour later, the occupant of the house returned home to find KQHR standing in her dining room. He approached her while armed with a knife and imprisoned her in a rear bedroom of the house. He demanded, and was given, the occupant’s handbag and mobile phone. He also took a camera from a cabinet while the occupant was still in the bedroom. KQHR had cut himself when entering through a window at the house and DNA analysis of the blood he left at the scene led to his apprehension.
When arrested, KQHR denied using a knife but did not specifically remember the incident. As a result of a head injury and alcoholism, he told the police, he forgot many of his daily activities for periods of up to a week at a time.
KQHR relied on a psychological report indicating that he had suffered an Acquired Brain Injury (ABI) as a result of poly-drug abuse, alcoholism and possibly a police assault. Submissions put on his behalf were to the effect that he had also become institutionalised. KQHR believes that he has been abused by priests in a Catholic institution but did not remember which institution. He went off the rails at the age of 24 years when his stepfather died. During his marriage, he did not offend but began offending again when his marriage broke up and he was homeless.
In 1998 and 2000, he suffered myocardial infarctions.
In giving judgment, Priest JA, with whom Neave and Buchanan JJA agreed, said:
“The judge’s description of the appellant’s prior convictions as ‘appalling’ was apt. He has multiple priors for burglary, theft, obtaining property by deception, handling stolen goods, going equipped to steal, dealing with the proceeds of crime, armed robbery, robbery in company, assault, weapons and firearms offences, and drug offences. His history demonstrates that he has been little deterred by previous sentences passed upon him. He has breached parole, failed to answer bail, and has breached community based orders and suspended sentences of imprisonment. Indeed, he was on a suspended sentence for burglary at the time he committed the present offences. He is, it would appear, incorrigible.”[52]
Direction No. 65 entitled “Direction no. 65 Visa refusal and cancellation under s 501” and dated 22 December 2014.
[16] G documents at 258
[17] G documents at 205
[18] G documents at 205
[19] G documents at 299
[20] G documents at 208
[21] G documents at 204
[22] G documents at 218
[23] Report of interview wth KQHR by an officer of the Department on 3 May 1972: G documents at 225.
[24] G documents at 284
[25] G documents at 224
[26] G documents at 226
[27] G documents at 250-251
[28] G documents at 232
[29] G documents at 235
[30] G documents at 239
[31] G documents at 254
[32] G documents at 259-260
[33] G documents at 107
[34] G documents at 58-59
[35] G documents at 262
[36] G documents at 263
[37] G documents at 265-266
[38] G documents at 267
[39] G documents at 285-286
[40] G documents at 292
[41] G documents at 44
[42] G documents at 271
[43] G documents at 230
[44] G documents at 106
[45] G documents at 111-113
[46] G documents at 385
[47] G documents at 50-55
[48] G documents at 109-110
[49] G documents at 105
[50] G documents at 104
[51] G documents at 185
[52] G documents at 40-41
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[53] Those directions must not be inconsistent with the Act or the Regulations made under it.[54] The person or body to whom the directions are given must comply with them.[55]
[53] Migration Act; s 499(1)
[54] Migration Act; s 499(2)
[55] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Thompson.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[56]
[56] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Thompson’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[57] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[57] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[58] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[59]
[58] Direction No. 65 at [8(2)]
[59] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[60]
[60] Direction No. 65 at [13.1(1)]
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also 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.”
A. The nature and seriousness of KQHR’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act; [sic]”.[61]
[61] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
I have set out the dates on which KQHR has been convicted of various offences. In some instances, the dates on which the offences were committed is important but, given the number of offences, the pattern is clear without that further information. It is a pattern that began when he was aged 14 years when he was convicted of five charges each of forgery and uttering. I am mindful that the next entry marked as an “offence” is not an offence as it would be understood today. It is described as “care and protection” and led to his being made a Ward of the State on 13 October 1968. A further “offence” of that sort is dated 10 February 1970. Both of those relate to events in Melbourne but another entry relates to a court appearance in Queensland on 24 November 1969 when he was 15 years of age. KQHR was charged with Break and Enter on that occasion but admitted to the care of the Director of Child Services in that State. The charge of Vagrancy in the Sydney Children’s Court seems to have had a similar outcome. I have had regard to a paper entitled “‘Criminal records’ of children on being made wards of state” by Professor Bronwyn Naylor of the Graduate School of Business and Law and accept that being made a ward of state had the potential to criminalise behaviour that, if committed by another child, would not be criminalised. Professor Naylor gives absconding as an example and it seems to me that KQHR’s charges of Vagrancy and Escaping from Lawful Custody might well be seen in the same light. The charges of Forgery and Uttering and of Break and Enter, Larceny, House Break and Steal and Illegal Use of a Motor Vehicle and so on are a little more difficult to characterise in that light. Perhaps, they may be regarded as consistent with the acts of a young person escaping violence in the home. The presence of that violence is supported by the written statement of KQHR and also by the comments made by his mother to the Department’s officers in an interview on 18 July 1983 about her former husband’s treatment of their sons. Even if they are regarded in that way, the offences of which KQHR was convicted as a child escalated so that by the time he was 17 years of age, he was convicted of being Armed with an Offensive Weapon/Instrument and Wilfully Damage Property as well as Attempted False Pretences.
That escalation continued and, when he was 18 years of age, he was convicted and imprisoned in an adult prison, Pentridge Prison, for the first time. The range of offences of which he was convicted extended beyond what might broadly be described as property offences to include Assault Occasioning Actual Bodily Harm. That was when he was 18 years of age. There is only one other set of convictions related to assault charges and that occurred much later on 16 June 1994 when KQHR was 40 years of age. By that time, however, he had an extensive history of convictions for offences against property, robbery and burglary. The pattern has continued unabated and broken only by KQHR’s periods of imprisonment. It is true, as KQHR states, that he kept out of prison from 1995 to 2006 when he was with his former partner, whom he married while he was in prison, and while he was taking Methadone. What he did not do in that time is to stop offending. He continued to commit a similar range of offences and added a conviction for the possession and another for the use of cannabis. I do note, though, that there was a two year period between August 2001 and August 2003 in which no convictions were recorded and an almost three year period between August 2003 and June 2006 when there were none. Although it is difficult to know when KQHR would have been released from prison, he was not convicted of any offences in a period of almost two years following the warning given by the Department on 21 June 1996. Just when the offences of which he was convicted on 11 March 1998 were committed is not apparent from the documents and so I can only make an approximation of the period.
By this time, KQHR had received three other warnings from the Department regarding the consequences to his visa status of further transgressions of the law. He had received one of those warnings when he was still a child. That was on 18 November 1971. The next warning was given on 14 September 1973 when KQHR was 19 years of age. A further warning was given on 12 November 1984 and, by that time, KQHR was 30 years of age. The last was given on 21 June 1996 and it was given in writing. As I have said, his offending continued and, even though he was not sentenced to any term of imprisonment in that time, the pattern of his offending continued and has not been disrupted either by the warnings or by the periods KQHR has spent in prison. The offences he has committed continue in the same pattern of offences against property and, more worrying, offences, such as Burglary, that invade the space of others, and offences committed while armed. Except for periods of the sort I have mentioned, it is a pattern that has shown little interruption over a period of almost 60 years. It is a pattern that Judge Rendit regarded as being likely to continue.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).”
B.1.Consideration
If KQHR should continue the pattern of his offending, the risks to Australian society are grave. He has more than one conviction for Armed Robbery and possessing a weapon be it a loaded shot-gun or otherwise. Those convictions would be of concern in themselves but they are of particular concern given his long history of drug abuse. A situation where a drug affected person is armed with a weapon is a situation fraught with danger. KQHR has not killed any person but he has assaulted people in the past. The risk of his hurting somebody in the future must be regarded as high and particularly while he continues to abuse drugs. Even if he does not hurt any person, the risk of his continuing to invade people’s spaces and to steal from them is also high given his previous pattern. He does not limit his activities to those who have done him wrong, as in misrepresenting aspirin like powder for heroin, but extends to the elderly as in his latest set of offences. This is a risk that is unacceptable to the Australian community.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[62] In considering the best interests of the child, paragraph 13.2(4) provides:
[62] Direction No. 65 at [13.2(2)]
“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 the 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”
What was in issue was the Minister’s statement in his reasons that:
“I accept that the department has found that Australia has non-refoulement obligations towards [the applicant].
The existence of non-refoulement obligations does not preclude refusal of a non-citizen’s visa application because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists. I understand that if I decide to refuse his visa application, in light of the above considerations [the applicant] will be unable to apply for any other visa. …
The statutory effect of a decision to refuse the visa application is also removal of [the applicant] from Australia as soon as practicable, and in the meantime, detention. In making my decision I am aware that while [the applicant] will not be removed from Australia if his visa application is refused (notwithstanding s 197C of the Act), he may face the prospect of indefinite immigration detention because of the operation of s 189 and s 196 of the Migration Act. I acknowledge that this is likely to have adverse impacts on his psychological and physical health.
I accept that indefinite detention is likely to have an ongoing adverse effect on [the applicant].
I am aware of and have had regard to the existence of a non-refoulement obligation in this case and I have carefully weighed this factor against the seriousness of [the applicant’s] criminal offending in the making of my decision whether to refuse [the applicant’s] visa application.”[70]
[70] [2017] FCA 448 at [12]
To understand this passage, it is necessary to know that s 197C provides that Australia’s non-refoulement obligations are irrelevant to the removal of unlawful non-citizens under s 198. Section 197C provides:
“(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.”
On behalf of DMH16, Mr Wood of counsel submitted that, in stating that refusal of the protection visa meant that DMH16 might face the prospect of indefinite detention, the Minister had failed to understand that the effect of the refusal of the protection visa would be detention but only until the Minister decided whether to exercise his power under s 195A. If he decided not to exercise his power, s 197C of the Migration Act operated so that DMH16 would be removed to Syria. That did not expose DMH16 to the risk of indefinite detention. Detention was limited to a time within the control of the Minister to consider whether to exercise his power under s 195A. The reference to indefinite detention was an erroneous reference to a situation that would have existed before the introduction of s 197C.
North ACJ accepted this submission. He found that the consequence of the Minister’s decision was not a short period of detention before a decision was made under s 195A but, rather, the removal of him to Syria. In quashing the Minister’s decision and remitting it to him, his Honour concluded:
“… Had the Minister properly understood the consequence of the refusal for the protection visa at the time he made the decision there is a possibility that he would have granted the protection visa in order to avoid the consequence that the applicant would be returned to Syria in contravention of Australia’s non-refoulement obligations in respect of the applicant.”[71]
A.2Relevance of Australia’s non-refoulement obligations in considering revocation under s 501CA(4) of a mandatory decision made under s 501(3A)
[71] [2017] FCA 448 at [30]
Although cancellation of a visa under s 501(3A) is a mandatory decision, the power to revoke that decision under s 501CA(4) is a discretionary power. Before the discretion arises, a decision must be made that the person either passes the character test or that there is another reason why the decision should be revoked. The reasons that are put forward must be considered by the decision-maker.
The case of Goundar v Minister for Immigration and Border Protection[72] (Goundar) underlines the need to characterise the claim that is made by the visa applicant or visa holder. If the claim is one that properly raises non-refoulement obligations, they should be considered in the context of an application for a protection visa on the authority of Le.[73] If they raise concerns of harm but not of the sort that would lead to a person’s being a person in respect of whom Australia has protection obligations because the person is a refugee, those claims must be considered in the context of s 501CA(4). That follows from the fact that they may be relevant in deciding whether there is “another reason why the original decision should be revoked” within the meaning of s 501CA(4)(b)(ii).[74]
[72] [2016] FCA 1203
[73] [2016] FCA 1203 at [45]
[74] [2016] FCA 1203 at [45]-[47]
In Goundar, the applicant had made representations in support of his claim that the Minister should revoke the decision to cancel his visa. He stated, and was supported in this by members of his family, that he and they believed that there is a risk of retribution against him from the victim and his ex-wife’s family if he were to return to Fiji as result of the cancellation of his visa. He submitted that the existence of the risk to his safety was a strong factor against the cancellation of the visa.
Robertson J found that the Minister had not considered the applicant’s retribution claim except in the context of Australia’s international non-refoulement obligations. Even then, the Minister had not done so because, he said, the applicant was able to make a valid application for a Protection visa. In choosing to do so, the Minister had taken the view that the risk of retribution, and the consequent risk of safety which the applicant had stated in his representation, were coterminous with the risk relevant to the issue of a Protection visa. Robertson J found that was an error of law:
“… The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4).”[75]
[75] [2016] FCA 1203 at [53]
Robertson J explained that:
“ While this approach may be unimpeachable in particular cases, see the authorities discussed in Le at [41]-[65], it is to be noted that in the present case the applicant had never had a Protection visa, had not applied for a Protection visa, had not indicated he would so apply and had not in his representations in accordance with the Minister’s invitation raised such an indication or contended that the Minister should revoke the original decision because Australia had obligations to him that would or might found an application for a Protection visa. The relevant representation was that there was a risk of retribution and a risk to the applicant’s safety as a matter of fact and not as an engagement of Australia’s legal obligations.
…
The legally erroneous reasoning in the present case was that the Minister did not consider that part of the representations made by the applicant which concerned the risk of retribution and the risk to his safety because of the view the Minister took that the claim could be dealt with later in any application for a Protection visa. This in turn involved an error as to the scope of the harm with which a Protection visa is concerned or the applicability of a Protection visa to the risk of harm to which the applicant’s representations referred. The Minister did not presently consider the applicant’s representation as to the claimed risk of retribution and risk to his safety because of the view the Minister took or the assumption the Minister made. The error was in proceeding on the basis that the circumstances the subject of the applicant’s representation could, in their entirety, be met by the availability to the applicant, on application, of a Protection visa. As a result of that reasoning, the Minister treated non-PV harm as irrelevant to the exercise of his discretion under s 501CA(4).
The harm claimed by the applicant was not on the face of it Convention-related harm because it had a private quality, and the claimed harm was not coterminous with the significant harm referred to in s 36(2)(aa) as defined in s 36(2A) of the Migration Act. The Minister proceeded on the basis that he did not need to consider the representation of risk of harm because of the line of authority summarised in Le at [41]-[65]. That error had a material effect on the Minister’s decision in that it was on that basis that he did not consider the claimed risk of harm and risk to the applicant’s safety. The satisfaction referred to in s 501CA(4) is a state of mind which must be formed on a correct understanding of the law: see Wei … and the authorities referred to in footnote 30 to the reasons of Gageler and Keane JJ. That is an implied condition of the valid exercise of that power. Here there was an incorrect understanding of the law. The case is one of jurisdictional error.”[76]
[76] [2016] FCA 1203 at [44] and [53]-[54]
Goundar was considered with approval in BCR16 v Minister for Immigration and Border Protection[77] (BCR16). In the latter case, the majority noted that they were not concerned with an appeal about mandatory considerations and what facts or evidence that a decision-maker may need to take into account where such a consideration arises. They then added:
“… We do not understand any of the authorities expressly to identify Australia’s international non-refoulement obligations as part of the now established mandatory consideration of ‘the legal consequences’ of a refusal or cancellation under s 501(1) or 501(2). … The courts in these cases were simply not asked to grapple with the argument now put to this Court: namely that the legislative scheme which centres on s 65 does not require the s 36(2)(a) and (aa) criteria to be addressed in considering a protection visa application if a decision-maker elects to consider other criteria first, and finds other criteria not satisfied. At that point the duty to refuse crystallises, and may do so without s 36(2)(a) and (aa) having been addressed at all, or without having addressed in particular what might be comprehended by the phrase within the scheme of the Act as it now exists, including s 197C.”[78]
[77] [2017] FCAFC 96; Bromberg, Davies and Mortimer JJ
[78] [2017] 248 FCR 456; (2017) 248 FCR 456 at [90]; 476-477
The majority in BCR16 went on to contemplate whether the fact that refusal on character grounds under s 501 is put forward in s 65(1)(a)(iii) as one of the circumstances which would prevent the grant of, in that case, a protection visa, leads to the conclusion that the legal consequences of refusal that must be considered under s 501 may now be incorporated in an assessment under s 65. They rejected that this could be so saying:
“… A decision-maker who is determining whether to refuse a protection visa under s 501(1) on character grounds must, the authorities ending with Le tell us, take into account the legal consequences of such a refusal which may — in a given case — include a person being held in indefinite detention. Why a person may be detained indefinitely may vary — as Cotterill [Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29] demonstrates, and may or may not have anything to do with risks of harm in a person’s country of nationality. It may, for many such persons, be because they are stateless and there is nowhere to return them to. It is not possible, even through the terms of s 65(1)(a)(iii) read with s 501(1), to find that the risk of harm to a person which by the Refugees Convention, CAT or the ICCPR Australia is obliged at international law to avoid, will necessarily fall for active consideration by the decision-maker.”[79]
[79] [2017] 248 FCR 456; (2017) 248 FCR 456 at [91]; 477
Later in their reasons for judgment, the majority underlined that they had “… attempted to show, there is nothing in the legislative scheme which compels assessment or decision on the appellant’s claims to fear harm in Lebanon before he is refused a protection visa. …”[80]
[80] [2017] 248 FCR 456; (2017) 248 FCR 456 at [96]; 478
A.3 Paragraph 14.1(2) of Direction No. 65
I respectfully suggest that the authorities set out consistent principles. Any differences there might appear to be, come about because the application of those principles will vary according to whether a visa refusal or cancellation is under consideration, whether the visa which is sought or has been cancelled is a protection visa or whether the opportunity to apply for a protection visa remains open and the legal consequences of refusal that arise in the particular factual circumstances of the matter.
Since the enactment of s 197C, it seems to me that the whole of the final sentences in each of paragraphs 14.1(2) and (6) are a statement of policy that is inconsistent with the law. To say, as paragraph 14.1(2) currently does, that Australia “will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists”, runs counter to the obligation to remove imposed by s 198 and reinforced by the statement in s197C. If the circumstances set out in s 198 apply, s 197C provides that it is irrelevant whether Australia has a non-refoulement obligation to the person who is to be removed. The duration of detention is the subject of s 196. It provides that an unlawful non-citizen detained under s 189, as is KQHR, must be kept in immigration detention until removed from Australia under s 198, dealt with under s 198A(3) (which will be a prelude to removal), deported under s 200 or granted a visa.
As I said in Re Jagroop and Minister for Immigration and Border Protection[81] (Jagroop):
“ It is clear from the power given to the Minister under s 499 that it is a power to give guidelines as to the way in which the discretion inherent in s 501 is to be exercised. That is so even if, consistent with the example given in s 499(1A), those guidelines were to require a person to exercise power under s 501 rather than under s 200 when both powers were available. …”[82]
[81] [2015] AATA 751; (2015) 67 AAR 288 at [39]-[53]; 303-307
[82] [2015] AATA 751; (2015) 67 AAR 288 at [47]; 305
That is so whether a direction is given as to the provision under which to make a decision, the matters to which consideration must be given or the weight to be given to some matters relative to others. Whether they might be characterised by some as policy or not, they remain directions in the sense that they are instructions about how a person exercising functions and powers under the Migration Act is to go about the performance of those functions or exercise of those powers. They are capable of being complied with, or not as the case may be. Compliance requires regard to be had to them if they arise in the particular circumstances of a case. Direction No. 65 does not seek to limit a decision-maker in having regard to relevant matters that arise in the particular factual context of a particular case. That is clear from paragraph 14(1) which states that “other considerations must be taken into account where relevant. [and that] These considerations include (but are not limited to …” the five that are set out in paragraph 14(1)(a) to (e).
Section 499(2) provides that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act or with the Regulations. My conclusion that the final sentence of paragraph 14.1(2) is inconsistent with the law does not render the whole of Direction No. 65 or even Part C of it null and void. The sentence can be excised from paragraph 12.1(2) of Direction No. 65 leaving a statement of policy that is consistent with the law.
A.4Consideration
The Minister’s Statement of Facts and Contentions was drafted on the basis that KQHR had made a valid application for a protection visa so that his claims could be considered in that context. This has turned out not to be the case. KQHR has based his claims on his being an Assyrian Christian, on his suffering from drug addiction and dependent on Methadone and on his father’s having worked for the British and American governments.
Under paragraph A(2) of Article 1 of the 1951 Convention, when read with paragraph 2 of Article 1 of the Protocol, protection obligations extend to a “refugee”, who is a person who:
“… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …”.
The only basis on which KQHR relies and which could come within this paragraph is his religion. His religious tattoos, his drug addiction and dependence on Methadone and his father’s having worked for the British and American governments are not bases that bring him within the scope of paragraph 2 of Article 1. In so far as his religion is concerned, I think that I can take quasi-judicial knowledge of Iran’s being a predominantly Moslem country. Beyond that I cannot go without evidence. Without evidence, I cannot make any findings as to the treatment of Assyrian Christians in Iran and whether KQHR would have a well-founded fear of being persecuted for reasons of his being an Assyrian Christian. In earlier times, KQHR expressed his concern that he would have a bullet in the back if he were to return to Iran but he did not explain why he feared that. It is not enough to have a general fear of harm. The well-founded fear must be a fear of being persecuted for one or more of the reasons specified in paragraph 2 of Article 1 of the Refugees Convention.
KQHR has not claimed that he would be tortured contrary to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment if he were to return to Iran and I do not have any evidence by which to assess the risk of his being tortured. The same is true of his rights as identified in the International Covenant on Civil and Political Rights and its Second Optional Protocol. I do not have any evidence on which to assess the risk of KQHR’s rights being breached were he to return to Iran. Having regard to the three conventions, I am not satisfied on the evidence that I have that KQHR will be at risk of a specific type of harm as specified in these conventions and covenants if his visa were cancelled and he were forcibly required to return to Iran.
The other matter on which I do not have any evidence is whether Iran will accept KQHR if Australia were to attempt to return him to that country. If Iran were not to accept him, it is unlikely that the Minister would exercise his power under s 195A of the Migration Act to grant KQHR a visa on the basis that it were in the public interest to do so. That could leave him in indefinite detention. Again, I do not have evidence but I think that it is generally accepted that indefinite detention is not conducive to good mental health.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has 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, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
B.1 Consideration
On paper, at least, KQHR cuts a lonely figure. He has no family in Iran and he appears to be estranged from his family in Australia. He thinks that his former wife has poisoned his children against him and there is no mention in the papers whether his parents are still alive. At one stage, his relations with his mother seemed to be good. His brother and he communicate occasionally by letter but that is all. Although the time for lodging material had passed when KQHR’s Notice of Withdrawal was lodged, no statements of his brother or of friends are to be found. His ties with anyone would seem to be very few.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of KQHR’s visa and the non-revocation of that cancellation would not have any effect on Australian business interests.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
I do not have any evidence regarding the effect of a decision not to revoke the cancellation of KQHRl’s visa on the victims of his crime and the family members of those victims. The sentencing remarks by Judge Read and Judge Rendlit referred to the impact of KQHR’s behavour on the victims of his crimes but not on the impact of a decision that led to his remaining, or not remaining, in Australia. That was not a relevant issue for them to consider. I have no evidence on which to assess this criterion.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
E.1 Consideration
I have referred to the lack of family support that KQHR has in Iran and to his having forgotten all of the Persian language that he learnt as a boy. He has worked little over his lifetime in Australia and then only sporadically. It is difficult to see what skills he would take with him to Iran that he could put to good use. I have no evidence regarding any form of income maintenance scheme that may exist in Iran or regarding the nature and quality of health care available to a person who has a heart condition but who would not seem to have any means of earning an income to pay for treatment.
Decision
I have set out KQHR’s history against the background of the deliberations of the Department’s officers centring on the question whether or not they should make a recommendation to the Minister that he be deported under powers provided for in the Migration Act at the relevant times. Those deliberations show a considerable focus on all of his family being in Australia and of his having spent the majority of his life here rather than in Iran. The focus on the effect his behaviour was having on the Australian community did not seem to carry the same weight. The way in which the competing interests were balanced in the earlier days is consistent with the earlier Directions made under s 499 by Ministers of both Coalition and Labor governments. The contrast between those Directions and their application by the Department and Direction No. 65 currently in force is underlined by the Department’s recommendation made in November 1972 that KQHR and his brother be “accepted as contingencies to our immigration program”. This was so despite KQHR’s having been convicted of offences of violence before that time.
By 21 June 1996, the emphasis of the Department’s response to KQHR’s situation had begun to change. In its written warning of that date, it warned him that, if he were to continue to offend, a greater emphasis would be placed on the interests of the victims rather than on his personal circumstances. By that time, KQHR had children and he had experienced a period in which he continued to offend but not in a way that led to his being imprisoned. Even if it could be said that the previous warnings had not been acted upon, the written warning put him on notice that greater emphasis would be placed on the interests of victims and not on his personal circumstances. Even if it might be thought that the Department’s previous warnings had lost some of their impetus because none had been acted upon and he had argued his personal circumstances in the past, this last written warning did put him on notice that the balance had changed. Despite that, his behaviour again deteriorated and led to convictions for serious offences.
Directions No. 65 and its predecessor, No. 55, do not have any room for allowing people who threaten the safety of members of the Australian community to be “accepted as contingencies to our immigration program”. Both have passages directing decision-makers as to the balancing of the various interests that must be taken into account but they differ. While both do not allow any room for concepts of contingencies, they have slightly different emphases. Both have paragraphs headed “How to exercise the discretion” and both, together with paragraph 8, come under the broader heading of “Exercising the discretion”. Direction No. 55 refers only to Parts A and B as it was given on 25 July 2012 before ss 501(3A) and 501CA, relating to mandatory cancellation of visas and requests for revocation of that cancellation were enacted. Revocation of cancellation is the subject of Part C in Direction No. 65. I will reproduce paragraph 7 from each Direction side by side to show the differences:
Direction No. 65
Direction No. 55
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
“Informed by principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.”
Direction No. 55 clearly puts the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations are weighed in the balance. Direction No. 65 has removed that clear statement. The reason for its removal is not apparent for what was once explicit is left to be implied from the relative weights to be given to the primary and other considerations in Direction No. 65.
I find that KQHR’s pattern of offending is likely to continue. It is a pattern of a lifetime. A catalyst for that pattern may lie in his home life and in his treatment at Morning Star Youth Training Centre. Australia should not have allowed him to be exposed to abuse of the sort he alleges. Blame and responsibility for what happened at those times does not lie with him in any way but people respond to the challenges that face them in different ways. Not every survivor of abuse turns to serious crime that puts the safety of others at risk. I have the evidence of Ms Anderson as to KQHR’s current situation, the conditions from which he suffers and the treatment that he needs but I do not have any medical evidence focused on the risk that KQHR continues to pose to members of the Australian community. I have only history of his previous attempts to become drug free and of his offences despite the relatively brief periods of time spent in what might have been the calmer atmosphere of his mother’s home and in what began as a loving relationship in his marriage. For more than a decade, he took the legal drug, Methadone, but he did not stop offending. When his marriage came to an end, he reverted to illegal drugs and, with it, the pattern of offending. He has made promises in the past to make a fresh start and to turn his life around but he has never succeeded in becoming drug free when he is not incarcerated and, even when on Methadone, has not succeeded in becoming offence free. When I look at that, I conclude that the risk of KQHR’s re-offending and, in doing so, commit serious crimes is high.
In this case, there can be no doubt that KQHR is likely to face extraordinarily difficult times if he is returned to Iran. How he will support himself and care for himself is unknown. There is no evidence of this in the papers just as there is no evidence of whether Iran will accept him if Australia were to return him. KQHR regards his being returned to Iran as a punishment and he has already been punished for the crimes that he has committed. His view is understandable given the position from which he will view it but his return would be a consequence of his own actions. He has taken a certain path in life after being warned that he could be returned to Iran as a consequence.
As difficult as life has been for KQHR, I have decided that the risk of harm that faces members of the Australian community if he is permitted to remain outweighs the risk to him if he were returned to Iran. If Iran were to refuse to take him, the risk of harm to the Australian community outweighs the difficulties that would face him if he were held in indefinite detention in Australia. Therefore, I affirm the decision under review not to revoke the cancellation of his visa.
| I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
....................[sgd]..............................................
Associate
Dated: 28 March 2018
| Date of hearing: Date of oral decision: | 15 March 2018 15 March 2018 |
| Solicitor for the Applicant: Solicitor for the Respondent: | Ms Paghona Peggy Kerdo Mr Jamie Grant |
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