Lam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4707
•8 August 2022
Lam and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4707 (8 August 2022)
Division: General Division
File Number: 2022/4174
Re: Lam Mut Lam Nhial Lam
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date of Decision: 8 August 2022
Date of Written Reasons: 7 September 2022
Place:Sydney
The decision under review is affirmed.
.................................[SGD]...................................
The Hon. Dennis Cowdroy AO QC, Deputy President
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision under review affirmed
Legislation
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
Cases
Do and Minister for Immigration and Border Protection [2016] AATA 390
FYBR v Minister for Home Affairs [2019] FCAFC 185
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
7 September 2022
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 13 May 2022 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, to cancel the Applicant’s BA Subclass 202 Global Special Humanitarian Visa (“the visa”) .
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act.
The Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 28 July 2022 using the Microsoft Teams platform.
relevant law and policy: DIRECTION no. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)the strength, nature and duration of ties to Australia; and
(ii)the impact on Australian business interests.
Facts
The Applicant, who is 43 years of age, was born in what is now known as South Sudan on 21 August 1978 and is a citizen of South Sudan.
evidence
Statements
The Tribunal has had regard to all the material filed in this matter, including:
o a statement of the Applicant addressed to the National Character Consideration Centre, Department of Home Affairs dated 14 of May 2020; a letter from the Applicant to the Department of Home Affairs dated 7 October 2020 and further statements of the applicant dated 6 June 2022 and 21 July 2022.
o A statement of Mr Kuel Paul (cousin of the Applicant) dated 10 March 2021.
Oral evidence
The Tribunal heard oral evidence from the Applicant and from Mr Kuel Paul
Medical evidence
A report of Dr Jeremy Butler, psychiatrist dated 24 August 2018 which was tendered in the sentencing hearing of the Applicant before the Supreme Court of Queensland, Criminal Jurisdiction, on 14 September 2018. Clinical reports of International Health and Medical Services (IHMS) made during the Applicant’s period of detention were also before the Tribunal.
Issues for determination
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(e)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(f)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
primary considerations
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community…keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction.
Applicant’s Criminal history
the Applicant’s criminal history is as follows:
Court Date
Offence Date
Offence
Penalty/ Outcome
Conviction recorded
Tender Bundle Reference
09.06.2009
23.05.2009
Contravene direction or requirement
Fined $250
No
R2/43-46
Consume liquor on a road
29.08.2011
Fail to answer bail (three charges)
Proven and dismissed
No
-
Intentionally damage property
Proven and dismissed.
No
-
Pay compensation
$273.70
08.08.2012
21.07.2012
Commit public nuisance
Fined $400
No
R2/48-51
20.08.2012
26.07.2012
Commit public nuisance
Fined $600
Yes
R2/52-55
17.12.2012
28.11.2012
Commit public nuisance
Fined $330
No
R2/56-59
29.12.2012
20.12.2012
Failure to appear in accordance with undertaking
Nil.
No
R2/13-16
12.07.2013
06.06.2013
Failure to appear in accordance with undertaking
Nil.
No
R2/17-20
06.09.2013
27.08.2013
Failure to appear in accordance with undertaking
Nil.
No
R2/25-28
18.01.2016
29.12.2015
Possess graffiti instrument
Graffiti removal order (20 hours)
Yes
R2/33-36
R3/95
18.01.2016
29.12.2015
Wilfully damage to property without consent and thereby caused a loss of $250 or less
Fined $100
Yes
R2/29-32
14.09.2018
18.05.2015
Attempt to murder – domestic violence offence
9 years’ imprisonment
Yes
R2/37-41
Traffic Offences
ORIGIN
DATE
OFFENCE AND PENALTY
Warrnambool Magistrates CT
Colac Magistrates CT
Colac Magistrates CT
Colac Magistrates CT
Colac Magistrates CT
03/10/2005
18/10/2004
27/09/2004
14/07/2003
28/04/2003
Exceeding the Prescribe Concentration of Alcohol
Date of Offence: 14/04/2005
Fined: $550.00
Disqualified from obtaining car licence or permit for 24 months.
Disqualified from obtaining licence or permit for 24 months.
Driving Whilst Disqualified
Date of Offence: 13/04/2005
Fined: $500.00
Disqualified from obtaining car licence or permit for 24 months.
Disqualified from obtaining bike licence or permit for 24 months.
Learner Drive W/Out EXP Driver
Date of Offence: 02/08/2004
Car Licence or Permit Cancelled and Disqualified for 3 Months
Bike Licence or Permit Cancelled and Disqualified for 3 Months
Drive Without “L” Plates Displayed
Date of Offence: 02/08/2004
Car Licence or Permit Cancelled and Disqualified for 3 Months.
Bike Licence or Permit Cancelled and Disqualified for 3 Months.
Not Probationary LIC Drive with P Plates
Date of Offence: 02/08/2004
Car Licence or Permit Cancelled and Disqualified for 3 Months
Bike Licence or Permit Cancelled and Disqualified for 3 Months
Aggregate fine of $300.00
Exceeding the Prescribed Concentration of Alcohol
Date of Offence: 17/07/2004
Car Licence or Permit Cancelled and Disqualified for 2 years.
Bike Licence or Permit Cancelled and Disqualified for 2 years.
Learner Drive W/Out Exp Driver
Date of Offence: 17/07/2004
Car Licence or Permit Cancelled and Disqualified for 2 years.
Bike Licence or Permit Cancelled and Disqualified for 2 years.
State False Name of Address
Date of Offence: 17/07/2004
Car Licence or Permit Cancelled and Disqualified for 2 years
Bike Licence or Permit Cancelled and Disqualified for 2 years
Aggregate Fine of $1,000.00
Learner Drive W/Out Exp Driver
Date of Offence: 18/04/2003
Car Licence or Permit suspended for 1 month
Bike Licence or Permit suspended for 1 month
Disobey Traffic Sign
Date of Offence: 18/04/2003
Car Licence or Permit suspended for 1 month
Bike Licence or Permit suspended for 1 month
Aggregate Fine of $300.00
Exceeding the Prescribed Concentration of Alcohol
Date of Offence: 04/01/2003
Fine: $450.00
Car Licence or Permit Cancelled and Disqualified for 6 months
Bike Licence or Permit Cancelled and Disqualified for 6 months
Driving at a Speed Exceeding the Speed Limit
Date of Offence: 04/01/2003
Fine: $300.00
Car Licence or Permit Cancelled and Disqualified for 12 Months
Bike Licence or Permit Cancelled and Disqualified for 12 Months
Drive Without “L” Plates Displayed
Date of Offence: 04/01/2003
Learner Drive W/out EXP Driver
Date of Offence: 04/01/2003
Charges 3, 4 An Aggregate Fine $300.00
Sentencing Observations in Respect of Recent Offending
The Tribunal has considered sentencing observations in relation to the most recent convictions.
14 September 2018: Supreme Court of Queensland, Criminal Jurisdiction
The Applicant pleaded guilty to a charge of attempted murder of his former partner. The attempt involved a violent assault and an attempt to strangle the former partner. Police intervened and the Applicant only desisted only after police had forcibly separated the victim and the Applicant. In the sentencing remarks, Boddice J observed that the assault was particularly serious and that the defendant would have killed the victim but for the police intervention. The sentencing remarks include the following passages:
There is no doubt that your intent was a murderous intent. She recalls you whispering, “Sh, it will all be over soon”.
His Honour observed that the victim had a number of injuries to her face, as well as a probable small factor of one of her vertebrae.
His Honour continued:
In coming to an appropriate penalty, I have regard to those circumstances. I also have regard to the contents of Dr Butler’s report. That report reveals, unsurprisingly, that as a consequence of the trauma you experienced as a child you have a post-traumatic stress disorder, persistent depressive disorder and alcohol use disorder. I do not doubt that all of those conditions are significant conditions.
I struggle to see how they have a causal relationship to what you did to this defenceless woman, simply because you could. Your behaviour was brutal. It was persistent. It was despicable. Nothing in Dr Butler’s report gives me any comfort that there is some basis to suggest this is an isolated incident
Dr Butler notes your conditions mean you do not respond well to what you perceive as a threat. On this occasion, there was no threat at all. Yet you behaved in this despicable way towards a defenceless woman. There is good reason for the community to be protected from you in the future.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction.
The Tribunal is satisfied that the nature of the Applicant’s offending is serious. The Tribunal also accepts that, without treatment, the Applicant is at moderate risk of re-offending.
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
primary consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
Whether a person is a family member, as referred to in Direction 90 is to be determined by the Tribunal and the term “family member” is to be determined by reference to the text, context and purpose of the expression “member of a person’s family”. It has been held that the expression should not be narrowly construed: see Dang v Minister for Immigration,Citizenship Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [124].
There is no evidence that the victim and the Applicant were in a domestic relationship or a de facto relationship at the time of the offending. There had been a past association between the applicant and the victim but the evidence shows that relationship had ended 12 months before the offence and although they had remained friends, there was no current relationship at the time of the offending. In these circumstances, the Tribunal does not regard the victim as a family member. The offending of the Applicant cannot be considered ‘family violence’ for the purposes of Direction 90.
The Tribunal finds that this consideration is neutral.
C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has no children and is not in a parental relationship with any child.
Finding on Primary Consideration C
This consideration is neutral.
PRIMARY CONSIDERATION D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Tribunal notes the decision relied upon by the applicant in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23], where Deputy President McCabe stated (referring to a predecessor Direction in the same terms as the current Direction):
As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their jailers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
In Weti-Safwan and Minister of Immigration and Border Protection [2016] AATA 797 at [50], Member Bygrave made observations to similar effect, stating:
I also consider the deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk” and that the “expectation must be considered contextually, relative to factors arising in relation to other principles” set out in the Direction.
Applicant’s Criminal History
The Tribunal notes that the Applicant’s criminal record extends over many years. During which the Applicant has committed 15 criminal offences and numerous traffic offences. The initial offending was related to minor matters such as traffic offences, but there has been an increasing serious in the nature of offending. The Applicant’s traffic record includes offences such as driving without “L plates displayed (three separate offences); driving without an experienced driver (four separate offences); disobeying traffic sign; providing false information. The offending increased n seriousness to driving while disqualified and driving with the prescribed concentration of alcohol on three occasions between 2003 and 2005.
The traffic offences, of themselves, may seem to be trivial. However, the fact that they were committed displays the applicant’s attitude towards the law. In Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 [45], the Tribunal said :
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a license, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
The Applicant has also engaged in conduct which has not resulted in convictions, but a police record exists in relation to certain incidents in which the applicant has been involved. Such records disclose that the applicant has been verbally abusive and aggressive towards the police and has engaged in conduct which is inimical to the law.
The Applicant has been convicted of failing to appear accordance with an undertaking and some bail; destroying a public telephone; involved in an incident described as family violence in 2011 when the Applicant learnt that his father had passed away. But there is an increasing tendency to violence demonstrated by the respondent. On 21 July 2012 the Applicant, whilst intoxicated was asked to leave a hotel in Brisbane at 4:30AM. A scuffle ensued and police arrested the applicant. On 26 July 2012 on bail the defendant was involved in a disturbance with another male in a unit house at 1:30 AM result of which the police were called. On 28 October 2012 police were called to a caravan park after many disturbances in the previous 24 hours. The Applicant was found to be heavily intoxicated.
The sentencing remarks of Boddice J, referred to earlier in this decision, disclose the seriousness of the attempted murder charge which resulted in a nine year prison sentence. Although the Applicant has asserted before the Tribunal that the victim of the assault was responsible for initial violence, there is no evidence of such matter In the Statement of Agreed Facts which was placed, by consent, before the criminal trial.
The Applicant has made submissions that he did not intend to kill his ex-partner, and asserts that his offending resulted from the fact that she had been unfaithful to him and for this reason he decided to get drunk. However the applicant, who was legally represented at the trial, pleaded guilty to the charge of attempted murder thereby acknowledging every element of the offence.
This Tribunal cannot impugn a conviction or sentence of a court:: see Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 At [40] in which the Court relevantly stated:
… it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by sentencing judge in the course of his or her deliberations concerning the sentence and upon which the sentence is based must be accepted by the Tribunal…
The Court continued at [41]:
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
The Tribunal, pursuant to 5.2 of the Principles contained in Direction No. 90 must take into account the primary considerations and other considerations relevant to the individual case. As provided by (5) of clause 5.2, the nature of the applicant’s conduct, or the harm that would be caused to the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
Applicant’s History
The Tribunal notes the Applicant’s turbulent history. The Applicant states that he was raised by his grandmother from age four or five years, and that his parents were displaced by war and moved to another country. The Applicant, being the eldest boy, remained with the grandmother. The Applicant’s grandmother died in 2021. There was no schooling for the applicant in Sudan. In 1988 he was forced to become a soldier when he was 11 years of age. In 1994 he escaped the army and fled to Kenya where he was cared for in a refugee camp. He states that he has never seen his mother or sister since 1982 and does not know whether they are still living. The Applicant states his father came to Australia as a refugee and became a citizen. He states that in 2011 his father returned to South Sudan to visit his grandmother but that the father was murdered during such a visit. The Applicant states he has no other family in Australia.
The Applicant claims that he became very depressed and commenced drinking and felt like taking his own life. He stated he is scared of returning back home as he fears that he will be killed. He asserts that he has a mental issue and identifies that issue as post-traumatic stress disorder.
The Applicant has obtained work whilst in Australia in an abattoir in Queensland for a year and in Victoria for four years. He states he ceased work due to depression and suicidality and states that he was always “getting drunk and hurting himself”. The work appears to have been sporadic and for the two years prior to entering gaol he has not worked and has relied upon Centrelink benefits and welfare housing.
Material has been provided to the Tribunal which appears to be a publication from a website concerning mental health in South Sudan and reports that there are many persons affected with some form of mental health problems extending from mild depression and anxiety to post-traumatic stress disorder. The Tribunal accepts that the Applicant has had a turbulent history due to his relocation from South Sudan to Kenya then relocating to Australia in circumstances where it appears he has not had the benefit of any assistance for his claimed PTSD.
Records of the International Health and Medical Services (IHS) provided to the Tribunal includes a psychiatric report dated 26 May 2022. The report appears to have been prepared by Dr Jillian Spencer. The report is very detailed and records symptoms which have been accepted as PTSD. An entry for 7 March 2022 records a psychiatrist review noting a history of alcohol dependence and in institutional settings a tendency to seek sedative medications. It is apparent that the Applicant has been in receipt of medication of various kinds over many years and there is reference to reported suicidal thoughts. In particular, it notes that the applicant has consumed alcohol from age 25 to alleviate his depression. The Applicant was diagnosed with:
Ongoing complex PTSD and cluster B personality disorder with chronic suicidality and pseudo-hallucinations, history of alcohol dependence, tendency to seek sedative medicines.
Although the Applicant claims to have no knowledge of his sister or mother, an entry in the IHS records dated 16 July 2021 records:
Background: Pt states that he has been under stress as he has not heard from his family in Sudan since the war started 2 weeks ago
-usually he talks to them at least weekly
Accordingly the Applicant appears to have a family residing outside Australia, and that he is in contact with them despite his testimony to this Tribunal. The records also show that he has an uncle who worked for UNHCR in Nairobi.
Observation
The material for the Tribunal shows that the Applicant has consumed alcohol excessively over many years. Many of the offences with which the Applicant has been charged and convicted have been the result of his alcoholism. In respect of the serious charge of attempted murder, there is evidence that the Applicant consumed alcohol with the victim prior to going to a hotel where more alcohol was consumed before returning to her home where the assault occurred. However there is no evidence that the Applicant was so affected by alcohol that he could not form the intent to commit the crime of attempted murder. There is also material which shows that a second serious charge, was made against the Applicant, but was not proceeded with. Such charge was laid apparently on the facts that, when police forcibly entered the unit where the offence of attempted murder was taking place, the Applicant was found in a dishevelled state.
Significantly, the sentencing judge in respect of the attempted murder, Boddice J. could find no link between the Applicant’s alleged mental condition and the criminal intent.
The Tribunal notes that the Applicant has completed various courses whilst in prison including a Drug and Alcohol Abuse 101 course; a Domestic Violence 101 course and a 24-hour Low Intensity Substance Intervention (LISI) Explore Program through Drug ARMS course; and a certificate in Skills for Work and Vocational Pathways course. The Applicant has also undertaken a course in medical terminology. The Applicant expressed the wish that he can undertake a course in medicine in the future. He made a similar comment to IHMS staff whilst in detention.
Despite undertaking such courses, the Applicant has continued to drink alcohol to excess. The IHS records record that until he went to prison, the Applicant would drink up to 2 casks of wine a day. On 2 March 2022 the records that the patient was “visibly intoxicated”. It appears that the alcohol anonymous course has not been successful in teaching the Applicant to reduce or to abstain from alcohol.
Mr Kuel Paul stated he arrived in Australia in 2004, and that he had known the Applicant as they grew up together in the same refugee camp. Mr Paul asserts that the Applicant’s father became ill whilst he was visiting Sudan and suspects the Applicant’s father’s death was a political assassination resulting from poisoning. Mr Paul refers to the chaotic and violent situation in South Sudan with extra-judicial killings in the capital and across the country and the kidnapping of persons who are considered to be a threat to the regime. Mr Paul states that the Applicant is a target and if sent to a neighbouring country he could be kidnapped. Mr Paul believes that after all the years in prison the Applicant is now remorseful for his actions and is ready “to make things right. Think he deserve a second chance – like every other human being”.
Finding on Primary Consideration D
Taking into consideration the fact that the evidence establishes the Applicant remains unrehabilitated, the Tribunal considers that the Australian expectations to be that the applicant poses a danger to the community. This factor weighs against revocation of the decision.
SECONDARY CONSIDERATIONS
International non-refoulement obligations
The Applicant states that he fears for his life because he is a member of the Nuer tribe and that such tribe and Dinka tribe are still at war. He stated he would be identified immediately as a Nuer because his name and language would reveal his origins. Accordingly it would not be safe for him to remain anywhere in Sudan.
The Tribunal notes that no independent evidence has been provided that the Applicant would be at risk, other than from the Applicant’s statement and from the observations of his cousin, Mr Paul. The Tribunal also notes that the Applicant departed the country approximately 28 years ago when he was at a relatively young age. Accordingly, the Tribunal questioned whether there is any link between the Applicant and his fear. It notes however that the tribes remain in dispute and there is evidence that there are extra-judicial killings in Sudan. The Tribunal also understands that such consideration, namely tribal rivalry, may extend over a long period and may constitute a very valid reason why the Applicant fears return to his country.
The Tribunal finds that the Applicant’s claims should be determined on an application for a protection visa. The Applicant may apply for such a visa, and this Tribunal is empowered to consider this prospect when deciding whether to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [19] per the majority (Kiefel CJ, Keane, Gordon, Steward JJ).
Irrespective, the Tribunal notes the Applicant’s claims, and finds that such claims weigh in favour of revocation of the decision under review.
Extent of impediments if removed
Paragraph 9.2 (1) of the Direction provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant is now almost 44 years of age. The Applicant has a diagnosed mental condition of post traumatic stress disorder (PTSD which, although treated by drugs, has persisted. The Applicant also has an addiction to alcohol which he asserts is linked to his PTSD because he consumes alcohol in the hope of overcoming his depression. His addiction to alcohol remains current, as evidenced by the IHS records. There is also some evidence that the Applicant has contracted diabetes.
There will be no cultural or language barriers if the applicant were returned to his home country. However, there is no evidence that there are any medical facilities which would be available to treat the applicant for his mental health condition. This is a consideration which weighs in favour of revocation of the decision.
Impact on victims
Paragraph 9.3 (1) of the Direction provides:
Decision -makers must consider the impact of the s501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The only evidence of the effect of the Applicant’s conduct upon his victim is contained in the sentencing remarks of Boddice J where his Honour said:
Despite police announcing their presence and directing you [sic –to] get off the victim,, you ignored this direction. You are forcibly removed from the victim. Thereafter, you continued to struggle with police.
The victim, fortunately, did not suffer significant physical injuries. She has, however, significant psychological injuries as a consequence of that traumatic and terrifying event. The Victim Impact Statement, which is not under her hand, indicates it has caused significant difficulties in her ongoing enjoyment of life.
When she was assessed by medical staff, she was found to have a number of injuries to her face, as well as a probable small fracture of one of the vertebrae. That appears not to be the case because she discharged herself from hospital shortly thereafter. It appears there is no suggestion that there was a permanent injury to her spine.
No more recent material has been provided.
Links to the Australian community
The Tribunal must have regard to the direction That the paragraph 9.4.1 (strength, nature and duration of ties to Australia) to 9.4.2 (impact on Australian business interests)
Strength, Nature and Duration of Ties to Australia
Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(iii)b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia continuously since arriving here in 1994. The only family member residing in Australia who is related to the applicant is his cousin, Mr Paul. There is no evidence that the Applicant has any close associates in Australia although he gave vague evidence concerning his association with the group of his fellow countrymen.
The Applicant has been engaged in employment for some of the time whilst he has been in Australia but there is an absence of detail of his employment history and he acknowledges that he has not been in employment for the past two years.
Taking these factors into consideration the Tribunal considers the strength, nature and duration of ties to Australia are not sufficient to warrant revocation of the decision.
Impact on Australian Business Interests
There is no evidence that the applicant has any business interest in Australia and is only association has been his work in an abattoir in Queensland and work in Victoria for an unspecified period.
Another reason?
The Applicant does not satisfy the character test. Accordingly the Tribunal must assess whether there is “another reason” why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities, and the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration andBorder Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64] states relevantly:
… It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carry sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the Visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in the decision not to revoke a Visa cancellation.
Visa cancellation is not to be considered as a form of punishment: see the observations in Folau v Minister for Immigration and Border Protection [2016] FCA 1149 at [11] where Pagone J said:
It is well-established that the Minister cannot regard Visa cancellation as a form of punishment for past events.
The primary considerations A and D weigh against revocation. Primary consideration B and C are neutral. Of the secondary considerations, the issues of concern to the Tribunal is the fact of the Applicant’s mental condition, namely PTSD; the lack of evidence concerning treatment available to him if he is returned to his country of origin; and the risk of harm should he be returned the Tribunal is also concerned that there is no proposal put any treatment to be made available to the Applicant if he remained in Australia, resulting in the potential for future violence by the Applicant.
However outweighing these considerations, and having regard to the future, is the fact that the Applicant continues to consume alcohol to excess and in such a state he is a danger to the community.
For these reasons the Tribunal does not consider that there is “another reason” which would justify the setting aside of the decision under review. It follows that the decision under review is affirmed.
I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
..................................[SGD]......................................
Associate
Dated: 7 September 2022
Date of hearing:
Applicant:
28 July 2022
In Person
Solicitor for the Respondent: Mr A Cunynghame, Sparke Helmore Lawyers
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