KRJF and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1223
•4 August 2017
KRJF and Minister for Immigration and Border Protection (Migration) [2017] AATA 1223 (4 August 2017)
Division:GENERAL DIVISION
File Number: 2017/2869
Re:KRJF
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member JC Kelly
Date:4 August 2017
Place:Perth
The Tribunal affirms the decision under review.
........[Sgd]................................................................
Senior Member JC Kelly
CATCHWORDS
MIGRATION – mandatory cancellation – applicant has substantial criminal record and does not pass the character test – whether there is another reason why the decision should be revoked – primary considerations – protection of the Australian community from criminal or other serious conduct – best interest of minor children – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – impact of victims – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501CA(4), 501CA(4)(b)(ii), 501(3A), 501(6), 501(7)(c)
CASES
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member JC Kelly
4 August 2017
INTRODUCTION
KRJF, the applicant, is seeking the revocation of the mandatory cancellation of a Class WA Subclass 010 (Bridging A) visa (the visa). The visa was cancelled on 5 October 2016 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as a consequence of the applicant’s conviction and sentence of imprisonment for six years.
The applicant submitted a request for revocation of the mandatory cancellation of the visa on 17 October 2016. On 11 May 2017, the applicant received a letter from the Department notifying him of the decision of the delegate of the respondent not to revoke the cancellation of the visa. The applicant filed his application for review of that decision in the Tribunal on 15 May 2017.
ISSUES
Subsection 501CA(4) of the Act provides that the Minister may revoke a decision under s 501(3A) if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The applicant does not dispute the fact that he does not pass the character test set out in section 501(6) of the Act. That is because he has a substantial criminal record as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more. The applicant served six years in prison from 2010 for several offences.
He submits that there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)). That is the issue for the Tribunal to determine. If satisfied that there is another reason, the Tribunal must revoke the cancellation. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: see Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, at [38].
Direction 65
In exercising the discretion under s 501CA(4) the Tribunal must follow the direction given by the Minister under s 499 of the Act, namely, Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under S501CA (Direction 65). The Preamble of Direction 65 contains the Objectives of the Direction, general Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task.
Part C of Direction 65 is relevant in this case, where the Tribunal has to determine whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa.
There are three primary considerations to be taken into consideration when deciding whether to revoke a mandatory cancellation of a visa: see Direction 65 at para13(2)
(a)protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia;
(c) expectations of the Australian community.
Other considerations must also be taken into account where relevant: see Direction 65, at para 14(1). The 'other considerations' include:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties to Australia;
(c) impact on Australian business interests;
(d) impact on victims; and
(e) extent of impediments if removed.
Direction 65 sets out detailed guidance in relation to each consideration, as well as setting out objectives of the Direction, general guidance for decision-makers, principles that provide a framework within which decision-makers should approach their task of deciding, relevantly, whether to exercise the discretion to revoke the mandatory cancellation, and how to exercise the discretion.
The Applicant’s Criminal History
The applicant was born in Iraq in 1983 and arrived in Australia by boat in August 2001. His first conviction was on 12 February 2003 for the offence “No Motor Driver’s Licence – Under Fines Suspension”. Thereafter he was convicted of the same offence on four further occasions. In total, he has eight convictions for driving offences, including one for reckless driving.
His first conviction for a violent offence was on 6 September 2007. The charge was “Assault Occasioning Bodily Harm (Victim Over 60 years)”. The Statement of Material Facts says that the victim was a 68 year old man who was trying to park in his carport where the applicant and a group of males were. The men had refused to move when asked. As the victim slowly moved his car into his carport, the applicant opened the driver’s side door “and punched the victim with a clenched fist to the side of the face”.
A Community Based order was imposed for that offence which the applicant breached twice. It was extended first for six months on 29 May 2008 and was then extended for 12 months and the applicant fined $200 for the breach on 15 May 2009. On that day, he was also convicted of “Assault Occasioning Bodily Harm” and “Common Assault”. He was sentenced to “imprisonment for 8 months concurrent suspended to be of good behaviour for 12 months” for the first offence and to a 12 month Community Based Order for the second.
The “Assault Occasioning Bodily Harm” and “Common Assault” offences occurred on 30 October 2008. The Statement of Material Facts states that victims were two Centrelink officers who were escorting the applicant from Centrelink premises after he had been asked to leave. He spat in the face of one and kicked the other in the groin area “causing immediate pain and discomfort” and aggravating an existing injury that required surgery. On 14 January 2009 when police attended the applicant’s residence “he readily admitted to the above facts stating that hew (sic) was angry with the result of his Centrelink claim”.
On 25 May 2010, the applicant was convicted and fined $500 for the offence of “Being Armed Or Pretending To Be Armed In A Way That May Cause Fear”.
On 11 November 2011 he was convicted and sentenced to 4 years imprisonment for the offence of “Detained Another With Intent to Gain a Benefit”. On the same day he was convicted and sentenced to imprisonment for “one year cumulative” for each of the offences of “Assault Occasioning Bodily Harm” and “Demanding Property by Oral Threats”. The sentences were backdated to commence on 5 November 2010. His total sentence was six years. He served the full sentence and was transferred to immigration detention on 4 November 2016.
The applicant and his two co-accused, threatened and assaulted the victim over a period of weeks and then kidnapped him on 15 October 2010. The victim was a drug dealer. The applicant became upset with the victim when he realised the gun the victim was selling him was a replica, and told the victim that another person’s $5,000 debt was now the applicant’s and the victim had until the next day to pay or he would be killed. The applicant pleaded not guilty.
The sentencing judge was satisfied that the applicant:
·threatened to kill the victim, pointed the replica gun at the victim and struck the victim with the replica gun when the debt was created;
·made subsequent oral demands for money;
·physically assaulted the victim with a flashlight;
·detained the victim for around eight and a half hours;
·used a knife to stab and tear at the victims jeans,
·was present while a co-offender repeatedly assaulted the victim, cut him with a knife and rubbed salt and pepper on the wound and eyes and sprayed aerosol in the victim’s face and mouth;
·together with his co-offenders struck the victim with fists and a wooden truncheon and instructed him to make calls to get money or he would be killed;
·was present and laughed when a co-accused urinated on the victim;
·was present when a co-accused used a hammer to tap on several occasions “railway spikes” in the victim’s skull, which caused the victim pain;
·on one occasion stopped the co-accused from delivering a more forcible strike/blow of the hammer on the railway spikes held to the victim’s head;
·held the victim while a co-accused punched the victim in the neck and struck him with a wooden truncheon;
·photographed part of the victim’s ordeal and was present in aiding and encouraging;
·showed no empathy for the victim’s predicament until the date of sentencing;
·had the more dominant role.
The sentencing judge found that the assaults were not designed to break bones or inflict serious physical harm, but were designed to intimidate, and together with the deprivation of liberty “were designed to terrify (the victim) so that money could be obtained”. He referred to the applicant’s pre-sentencing and psychological reports and that the latter referred to the applicant’s high risk of re-offending because of his past behaviour, “but also says that caution must be used in these sorts of assessment because of your cultural background”.
The evidence shows that the detention of the victim was ended by the “TRG”, which the Tribunal understands is the police Tactical Response Group.
The victim’s impact statement referred to paranoia, anxiety, fear for his own safety, crippling panic attacks, scarring on the chest, the requirement for constant counselling, difficulties with sleep, ongoing costs of medical, pharmaceutical and counselling services. The sentencing judge commented that: “All of those, of course, are a natural reaction to the ordeal undergone”.
On 24 January 2012 the applicant was convicted of “Assault person performing a public function” and sentenced to imprisonment for six months “concurrent” from 24 January 2012. The Statement of Material Facts says that the offence occurred on 12 May 2010 when the applicant verbally abused a parking enforcement officer and spat on him, and that the applicant was identified by a DNA swab.
The applicant’s first conviction which refers explicitly to an offence involving drugs is “Driving With Prescribed Illicit Drug in Oral Fluid” for which he was fined $150 on 2 February 2011. That offence occurred on 20 August 2010. On 14 November 2011 the applicant was convicted of two offences of possessing a prohibited drug (methyl amphetamine and cannabis) and one of possessing a utensil for smoking prohibited drug. Relatively small fines were imposed. Those offences occurred on 16 October 2010.
The applicant was convicted of a “Possess A Prohibited drug (Amphetamine)” on 2 March 2012 and fined. On the same day he was convicted of “Disorderly Behaviour In A Police Station” and fined. Both offences occurred on 30 September 2010.
The applicant has been convicted of two offences relating to stealing, one on 3 February 2012 and the other on 27 July 2005. Fines were imposed in each case. The 2012 conviction was in respect of an offence committed on 30 June 2010.
In his statutory declaration sworn on 18 July 2017, the applicant acknowledged the seriousness of his crimes and stated that he was deeply ashamed of his past behaviour. Without excusing his behaviour, he put his actions “down to being young, misguided and under the influence of drugs”. He claimed to have had a tough upbringing and to have had to flee Iraq following an elopement and consequent murder of his partner by her parents who also wanted to kill him. He claimed that he had no family support in Australia and felt lonely and isolated. He was grieving for his dead partner. He blamed himself for her death. He was in pain which turned to anger and he started “hanging with the wrong people”. He developed a drug addiction that “led him down a very bad path that I deeply regret”. The drugs helped him to forget and he soon relied on them.
He claimed that his offences started to “get more reckless” in 2009 because he was “using heavily” after a break up with his current partner who did not accept his addiction. She remarried. He did not deal with that well.
The applicant claimed that because of the drugs, he was not aware of what he was doing and the consequences. He claimed that he is no longer the same person and takes responsibility for what he has done and has learned how to deal with his emotions without drugs. He claims to have been rehabilitated during his incarceration. He decided to undertake numerous courses and programs to better himself for the future and for his family. The programs included ones he chose, as well as prison allocated ones. He feels that those programs have given him the tools “to get me on track, keep me clean and stop me from making bad decision (sic) in the future”. His family support has also helped his rehabilitation.
The applicant worked in the upholstery workshop while in prison. He claimed to have had good relationships with the staff and other prisoners. He did not have any charges against him while in prison and was moved to a lower security section.
The applicant claimed to have developed friendships with fellow detainees and has good relationships with the staff. He is very anxious about his visa cancellation and being forced to return to Iraq. For the past seven months he has been volunteering in the coffee club at the canteen two days a week helping the welfare staff by making coffee and serving cake. He claims that he is gaining customer service skills and interpersonal skills he can use in the community. He organised some religious gatherings and is involved in a charity program. He claimed to make himself available to younger people to counsel and advise them to make good choices and not be victims of drugs.
The applicant claimed that there are no rehabilitation or counselling programs in detention. He claimed to have seen a mental health nurse on a few occasions and “taken on board” what they have told him. If given the opportunity, he claims he would continue to take regular rehabilitation or counselling meetings in the community.
The nature and seriousness of the non-citizen's conduct to date
Turning to the considerations set out in Direction 65 in relation to the nature and seriousness of the applicant’s conduct, which has been summarised above, the Tribunal finds that he has committed crimes which the Tribunal views very seriously. He has committed a crime against a vulnerable member of the community, an elderly man. He has committed crimes against three government officials who were performing their duties. Those crimes are serious.
The Tribunal takes into account the sentences imposed for the applicant’s crimes. The prison sentences totalling six years and the suspended prison sentence reflect the court’s view of the seriousness of the crimes for which those sentences were imposed.
The applicant’s crimes have increased in seriousness and frequency. The cumulative effect of the applicant’s repeated offending is that he has shown that he does not respect Australia’s law enforcement framework and has a disregard for his victims. He told the Tribunal that he did not think that the police would get involved in the crimes for which he was sentenced to six years imprisonment because the victim was a drug dealer. That view shows a lack of understanding of the law in Australia.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The applicant claims that he will not reoffend. His criminal history shows that he is capable of inflicting serious psychological harm and physical harm on his victims. He was formally assessed as being at a high risk of reoffending before he was incarcerated. The Tribunal takes into account his drug taking and that he has not taken drugs for more than six and a half years during his imprisonment and detention and he has not offended in either institution. It takes into account the many courses he has undertaken in prison in relation to drug taking, anger management, good decision-making and not reoffending which may assist him in the future. It takes into account that this is the first time he has been imprisoned and hence the first time that he has undertaken rehabilitation programs offered in prison. Whether he will resume taking drugs if released into the community is untested.
The Tribunal takes into account that the applicant has expressed his desire and willingness to undertake rehabilitation when he is released into the community, his gratitude to be in Australia, his realisation that it is a privilege he has been given and that he is now committed to give back to the community in order to become a valued member of society.
The Tribunal has taken into account the submission and evidence about recidivism trends in Western Australia which are downward and which were claimed to show that the rehabilitation programs offered in Western Australia are effective and more effective than programs in other states. While the trend is down, 61% of offenders are returned to prison within two years of release. Statistics that showed the recidivism rates according to the offences committed, the circumstances of the offender such as whether they were abusing drugs, and the length of sentence served, would be more relevant. The Tribunal is concerned with one individual and has to assess the evidence in his case.
The Tribunal takes into account that the applicant’s security rating was reduced to medium on 27 July 2012 and that he has had good relations with staff and inmates in prison and detention. He does not have a record of adverse incidents while in prison or detention. He has worked in an upholstery workshop and driven prisoners to jobs on the prison farm where he was incarcerated. He has organised religious observances and volunteered to make coffees and serve cake for other detainees while in detention. He has been awarded a certificate of appreciation for the latter, as well as earning points which he uses to buy items such as shampoo.
The applicant’s partner and her 17 year old daughter provided written and oral evidence to support the applicant’s claim and his evidence that he will have family support in the community which will facilitate his not reoffending.
A summary of the evidence follows. The applicant and his current partner had been in a relationship from about 2006 to 2008, had lived together during that time with the older daughter, and had discussed marriage. The applicant has been a father figure to both his partner’s daughters. The younger one was born in November 2010. The applicant and his partner were in contact after their relationship broke down in 2008. The older daughter and the applicant were in contact after the relationship broke down and the applicant visited the older daughter, particularly after her mother remarried in 2009. The partner’s second marriage broke down around the time of the younger daughter’s birth. The applicant and his partner resumed their relationship in January 2017 and planned to marry and make a life as a family when he is released into the community.
Neither his partner nor her daughters had seen the applicant during his imprisonment. His partner said that the applicant had not wanted them to experience the prison environment. His partner and the older daughter claimed to have spoken to him on the telephone during that time, as the applicant claimed. His partner said that she put the telephone to her younger daughter’s ear so that she would get to know the applicant’s voice. They visited him for the first time in detention in March this year. His partner explained that the delay between their resuming their relationship in January and the March visit was because she had a problem with her car and had to save to get it fixed.
The Tribunal finds that the March visit was the first time the younger daughter had met the applicant and the first time either the partner or the older daughter has seen him since he was imprisoned on 5 November 2010.
The applicant had been concerned about his immigration status in Australia at least from 8 December 2015 when he wrote to the “National Character Consideration Centre” on 8 December 2015. The response, dated 23 December 2015, advised him that he was lawful in Australia “however, due to your recent offence will be subject to mandatory cancellation under s 501 of the Migration Act 1958 due to your criminal history”. He made a second enquiry dated 20 May 2016. The response on 31 May 2016 advised him that he was “currently lawful in Australia but are being considered for possible visa cancellation under s501 of the Migration Act 1958 due to your criminal history”.
The applicant filled out a Personal Circumstances Form dated 17 October 2016 in support of his request for revocation of the visa cancellation decision. He did not claim to be in a relationship. He provided no information in response to the invitation to list “Minor children”. That term was explained to be “children under 18 years of age”. The form stated:
The best interests of minor children are a primary consideration of the decision-maker so it is in your interest to include as much information as possible regarding any minor children who may be affected by your visa cancellation.
…
Include all minor children in your life (including biological children, step-children, grandchildren, close nieces or nephews etc).
Given his obvious concern about what would happen to his immigration status as a consequence of his offences prior to filling out the Personal Circumstances Form, that the applicant did not list the children in the form, is inconsistent with his being their father figure since 2006 in the case of the older daughter, and since birth, in November 2010, in the case of the younger child.
The Tribunal does not consider that the evidence of the applicant, his partner or the elder daughter is reliable. The Tribunal does not accept that the partner, the older daughter, or the younger daughter, have had the claimed close relationships with the applicant or that the applicant and the partner are planning to marry. It does not accept the claims made by the partner’s mother or in two other letters in support that he will have family support in Australia.
The Tribunal does not accept that the applicant will be supported by a loving family if he is released into the community as he claimed.
The Tribunal finds that there is a risk to the Australian community should the applicant commit further offences. Because of the applicant’s lengthy and serious criminal history, it does not accept the submission made on behalf of the applicant that the risk would be minimal.
Best interests of minor children
For the reasons set out above, the Tribunal does not accept that the applicant has a close relationship with either of the partner’s children as was claimed. The Tribunal finds that his not responding to the opportunity to list “minor children in his life” in the Personal Circumstances Form dated 17 October 2016 reflects the true position. He has no minor children in his life. The Tribunal gives no weight to this consideration. In making that finding that Tribunal has taken into account the submission, including those about Australia’s international obligations concerning children. They are not relevant in this case.
Expectations of the Australian community
In summary, the submission made on behalf of the applicant was that the applicant should be given a second chance because of his exemplary behaviour during the last several years in prison and in detention, his efforts to rehabilitate himself, his family support, and his plans of marriage, being a good father, and becoming a valued member of society. The submission argued that not giving him the opportunity to reintegrate into Australian society would be a setback to Australian values of compassion, tolerance and fairness.
For the reasons set out earlier, the Tribunal does not accept that the applicant will have family support or have the role of being a father and a husband or the financial supporter of the family. The Tribunal finds that after living in Australia for 16 years he has no supporting network of friends or relatives in the Australian community.
In the Personal Circumstances Form dated 17 October 2016, one of the factors he claimed helped explain his offences, was that he felt lonely and isolated. The Tribunal does not accept that any of the individuals who provided letters of support for the applicant know the details of his criminal history. It does not accept that he had the support of any of those people, or the partner or the older daughter during the period from 2009 to his incarceration in 2010. One of the people who provided a letter of support gave her address as a suburb of Melbourne. The applicant told the Tribunal that the person offering him employment as a painter lives in Brisbane. Neither of the other writers provided an address. For the purposes of this decision, the Tribunal assumes they live in Perth.
The Tribunal finds that the applicant is likely to feel lonely and isolated again if he is released into the Australian community.
The Principles in Direction 65 (para 6.3) are relevant to this consideration.
Australia conferred on the applicant the privilege of remaining in Australia by granting him Class XA Subclass 785 (Temporary Protection Visas (TPV)) on 31 January 2002 and 15 February 2006. The second TPV ceased on 15 February 2006. The applicant held the bridging visa from March 2006 until it was cancelled. Those visas were granted in the expectation that he would be law-abiding, and respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community (Principle 1). He did not meet that expectation as his lengthy criminal record shows.
The Australian community expects that the Australian government can and should cancel the visas of non-citizens if they commit serious crimes in Australia (Principle 2). The applicant has committed serious crimes in Australia.
A non-citizen, who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as the elderly, should generally expect to forfeit the privilege of staying in Australia (Principle 3). The applicant has committed serious violent crimes, including against an elderly man.
Principle 5 states:
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.
The applicant arrived in Australia in 2001 when he was 18 years old, which is not a very young age. He worked as a baker and kitchen hand from 2002 to 2008. He has spent longer in prison and detention than he has working. He is now 34 years old. The Tribunal finds that the Australian community has a low level of tolerance of the applicant’s criminal conduct.
Principle 6 states:
Australia has a low tolerance of any criminal conduct 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.
The applicant has held visas which were limited in terms of time. Given his criminal history the Tribunal finds that there is no expectation that he should be allowed to remain in Australia.
The Tribunal finds that the applicant’s criminal history shows that the Australian legal system has given the applicant many opportunities to reform. Notably, he breached the Community Based order imposed in relation to the “Assault Occasioning Bodily Harm (Victim Over 60 years) twice. A suspended sentence was imposed for the “Assault Occasioning Bodily Harm” offence against a Centrelink officer. Thereafter, his offending continued and became more serious.
The Tribunal finds that the Australian community would expect that the decision to cancel the applicant’s visa would not be revoked.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Tribunal infers that decision-makers found that the applicant was a refugee when he was granted the two TPVs in 2002 and 2006. He was born in Kurdistan in northern Iraq. The applicant claims that he will be killed by the family of his deceased fiancée (the family) who murdered her after the applicant and his fiancée “eloped” to Iran. They returned when reassured by the family that they could marry. He claimed that his parents, four sisters and two brothers had also fled Iraq because of that circumstance and now live in four different European countries. Further, he claimed that the authorities would not protect him.
During the hearing, the applicant said that that “all” of the family would kill him – her brother, her dad – he does not know who. He said that all the family lived in the one city in Kurdistan. When asked if he could relocate in Iraq, the applicant said that he cannot even go to Europe because it is too close to Iraq. He said that you never know these days who is going to tell who. It is easy for “them” to drive a couple of hours to find out where you are and kill you. He was going to go to Europe but his mother said to send him far away where people will not know where he is. There are too many refugees in Europe. They can find him there.
The applicant accepted that “technically” he may apply for a protection visa. That is, because neither of his TPVs was cancelled. They both ceased.
In such a case it would appear that paragraph 14.1(4) would apply, that is, “it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purpose of determining whether the cancellation of their visa should be revoked”.
The respondent provided comprehensive submissions on this issue addressing the recent Full Federal Court decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16). On 11 July 2017, the respondent filed a special leave application in the High Court challenging that decision. The respondent submitted that for the present, BCR16 must be followed and the Tribunal must consider the applicant’s claim summarised above.
The decision considered in BCR16 was made by the Assistant Minister and Direction 65 did not apply. The majority of the court held that the Assistant Minister had erred in finding that it was unnecessary to determine whether non-refoulement obligations were owed to the appellant because he was not prevented from applying for a protection visa. The majority of the court held that the Assistant Minister had failed to carry out the task required by s 501CA(4) of the Act in relation to the reasons for revocation that was included in the applicant’s representations submitted pursuant to s s501CA(3)(b) of the Act.
The Tribunal will not rely on paragraph 14.1(4) of Direction 65, and will consider Australia’s international non-refoulement obligations in respect of the applicant. The Tribunal accepts that the level of analysis required in assessing Australia’s non-refoulement obligations is less than would be required in assessing a claim for a protection visa.[1]
[1] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83.
There is no corroborative or probative evidence before the Tribunal to support the applicant’s claims for protection, including where the members of the family are currently or whether they are alive. The Tribunal takes into account that two decision-makers have previously been satisfied that the applicant was a refugee and since those decisions, the Act has been extended in scope to include the complementary protection criterion (s 36(2)(aa)). Those decisions are not before the Tribunal. It does not know what claims were made or the reasons for those decisions. In any event, this Tribunal is not bound by the earlier decisions and must consider the claims itself. More than 10 years have elapsed since the second of those decisions was made and it is more than 15 years since the applicant left Iraq. Further, the Tribunal found the applicant’s evidence unreliable.
The Tribunal finds that the applicant has provided no probative evidence that there is a real chance that he will suffer serious harm or that there is a real risk that he will suffer significant harm, from the family if he returns to Iraq. It is unnecessary to consider those claims further.
The applicant also said that he could not return to Iraq because it is a war zone between Islamic State and the Kurds, and he will be killed. He said that he had lived in Sulaymaniyah in Kurdistan. There was no evidence before the Tribunal about conditions in Sulaymaniyah.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iraq, there is a real risk that the applicant will suffer significant harm.
Given those findings and the fact that the applicant does have the right to apply for a protection visa, the Tribunal does not accept that the applicant will be exposed to indefinite administrative detention. In making that finding it has taken into account the submission that it is unclear whether the Act extends him a right to a bridging visa if he did lodge a protection application. That submission is unhelpful. It is a conclusion which was not supported by reference to relevant provisions of the Act or analysis. The Tribunal gives that submission no weight. Further, it is a matter for the applicant whether or not he lodges an application for a protection visa. Whether he will be granted a bridging visa may be a matter he considers before making the application.
Strength, nature and duration of ties
The Tribunal accepts that the applicant arrived in Australia in 2001 when he was about 18 years of age and has remained here for 16 years. It does not accept that his social and family ties are much stronger in Australia than anywhere else. Unfortunately, since 2008, the applicant’s life has been one of drug taking, criminality, imprisonment and immigration detention. The Tribunal does accept that he was employed from 2002 until 2008.
For the reasons previously given, the Tribunal does not accept that he has any family or social ties in Australia. The Tribunal has taken into account the letters provided in his support, including one from the mother of one of his co-accused in the offences that resulted in his imprisonment. She lives in Melbourne. In relation to the letter from the potential employer, the applicant would have to move to Brisbane to work where he has never lived. As set out earlier, one of the factors the applicant claimed contributed to his criminality was loneliness and isolation. Those circumstances seem to await him if he is released in to the Australian community.
The Tribunal takes into account the applicant’s contribution to the community whilst in prison and detention, including the work he has done in the upholstery shop, on the prison farm, volunteering in the coffee club in detention, arranging religious observances, and advising others based on his experience. It acknowledges his expressed desire and commitment to be a positive role model in the community and to undertake further rehabilitation when released.
Taking into account Principles in 6.3 of Direction 65, the Tribunal gives this consideration little weight.
Impact on victims
It was submitted on behalf of the applicant that there is no evidence to suggest that the victim of the offences resulting in the applicant’s imprisonment would be adversely impacted should his visa cancellation be revoked. The submission noted that the victim, a drug dealer, and the applicant, were serving prison sentences together and there was a note on the applicant’s Individual Management Plan that the applicant is “To have no direct or indirect contact with the victim”. The submission asserted that it would be reasonable to assume that the “victim’s counselling sessions and his own path toward rehabilitation would have taken some effect to the point that he would now not be adversely impacted by revocation of the applicant’s visa cancellation”.
Almost seven years have elapsed since the offences were committed against the victim. At some time the applicant and the victim were in the same prison. They were acquaintances as drug dealer/user before prison. If the applicant were released, the Tribunal does not think it unlikely that the victim would hear of it and be anxious.
Extent of impediments if removed
The applicant grew up in Iraq and left when he was about 18 years of age. He will have no language or cultural difficulties if he returns. He has spent 16 years in Australia and speaks and writes English very well. He suffers from medical conditions including diabetes, Hepatitis C and being overweight.
The Tribunal does not accept that the question of indefinite detention is relevant in relation to this consideration as was submitted on behalf of the applicant, and has found that the applicant will not be so held in any event. It does not accept the implicit submission that the applicant has not been receiving adequate health care. There were 43 pages of health records from the detention centre health provider before the Tribunal. The applicant was being treated for Hepatitis C, diabetes, being overweight and for other conditions as they arose.
It was asserted on behalf of the applicant that he would not be able to access the same level of health care standards in Iraq that he can in Australia and would not be able to access the relevant support network, professionally and via his family, to keep him on track with his substance addiction.
The respondent asserted that the applicant will be able to receive the same level of care as other citizens in Iraq and it is likely that appropriate medication would be available for his diabetes.
Apart from claims to that effect, there was no probative evidence about the availability of health care or rehabilitation services in Iraq. He may be able to receive the same level of care as other Iraqis, but what that level of care is was not established by evidence. While the Tribunal is prepared to accept that Australia’s standard of health care and rehabilitation services is probably higher than that of Iraq, the Tribunal does not have evidence that shows that the applicant will suffer adverse health or rehabilitation consequences if he returns to Iraq.
The applicant claims that his immediate family have left Iraq and are in Europe and that he has no other relative overseas or in Australia. He claims that he has no home and will be isolated and have no support there, as well as there being civil unrest.
The applicant has no family in Australia, no home and will be isolated here. He may be able to access rehabilitation services to help him avoid taking drugs.
The Tribunal finds that he may receive financial assistance from his family whether he lives in Australia or Iraq, as he did in around 2010 when he received $70,000 referred to by the sentencing judge on 11 November 2011. In support of that finding, the Tribunal has taken into account that the applicant’s family has sent his partner about $800 in recent months to help her pay some bills.
The Tribunal finds that the applicant may face some difficulties reintegrating into life in Iraq after spending 16 years in Australia.
CONCLUSION
For the reasons set out above, the Tribunal finds that the considerations favouring revocation of the visa cancellation are strongly outweighed by the considerations against revocation of the visa cancellation. There is not another reason why the original decision should be revoked.
DECISION
The Tribunal affirms the reviewable decision not to revoke the cancellation of the Class WA Subclass 010 (Bridging A) visa, notified to the applicant on 11 May 2017.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member JC Kelly
..........[Sgd]..............................................................
Administrative Assistant
Dated: 4 August 2017
Date of hearing: 28 July 2017 Representative for the
Applicant:Solicitors for the Applicant:
Mr F Faris
Rebus Legal
Representative for the
Respondent:Mr A Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
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