LHKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 340
•24 February 2022
LHKG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 340 (24 February 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9698
Re:LHKG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 February 2022
Place:Sydney
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
..................................[sgd]...................................
Chris Puplick AM, Senior Member
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 90 – protection of the Australian community – family or domestic violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations – situation in Afghanistan – impediments if removed – reality of removal – impact on victims – where victim is also a family member – strength, nature and duration of ties to Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 36, 195C, 197C, 500, 501 and 501CA
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BATSON V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 1660
CONTRERAS V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] FCAFC 47
CFHQ AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2018] AATA 3858
CZCV AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2019] AATA 91
DHARMA AND MINISTER FOR HOME AFFAIRS [2018] AATA 2757
DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993
DOB18 v Minister for Home Affairs [2018] FCA 1523
Ellison v Comcare [2022] FCA 95
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Fox v Percy [2003] HCA 22
FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75]
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63; (1978) 1 ALD 331
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Le v Commissioner of Taxation [2021] FCA 303
Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Le [2016] 244 FCR 56
NDBR V MINISTER FOR HOME AFFAIRS [2019] FCA 1631
PGDX V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 1235
QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 226
RRFM V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 1273
SON AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2947
SULEIMAN V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCA 594
SZFQ V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] FCA 1525
TANIELU V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2014] FCA 673
TEWHARE AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2875
WKMZ V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2012] FCAFC 55
YNQY V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] FCA 1466
SECONDARY MATERIALS
DEPARTMENT OF HOME AFFAIRS, ‘AFGHANISTAN – SITUATIONAL UPDATE’ (17 SEPTEMBER 2021)
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
William Maley, ‘On the Return of Hazaras to Afghanistan’ (Australian National University, 9 October 2021)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 February 2022
LHKG (the Applicant) was the holder of a Return Resident visa (Class BB Subclass 155) which was subject to mandatory cancellation on 5 August 2020. An appeal against that initial revocation failed on 8 December 2021 and on 14 December 2021 the Applicant sought to have that cancellation confirmation revoked by this Tribunal which heard his application on 14 and 15 February 2022.
THE APPLICANT
The Applicant was born in January 1983 in Afghanistan and is a citizen of that country, now known as the Islamic Emirate of Afghanistan. He is by ethnicity a member of the Hazara community and confessionally is a Shi’a Muslim.
He and his family fled Afghanistan in 1987 as a result of persecution by the Afghan regime and settled in Pakistan. At some time in 2009 he left Pakistan and travelled to Malaysia and thence to Indonesia. From there he engaged with people smugglers and took a boat into Australian waters where he and others were intercepted by the Australian Navy. He was transferred to immigration detention on Christmas Island arriving there on 13 December 2009 as an unauthorised maritime arrival.
In January 2010 the Applicant applied to be recognised as a refugee and when his claim was assessed he was granted a Protection visa (Class XA Subclass 866) on 23 February 2010 which was converted to a Five-Year Return Resident visa on 19 December 2014.
VISA CANCELLATION
Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) provides that the Minister (the Respondent) must cancel the visa of a visa-holder who has been convicted to a term of imprisonment of 12 months or more on the basis that they are defined as thus having “a substantial criminal record”. Being so convicted and having a substantial criminal record means that a person has failed the “character test” set out in subsection 501(6) of the Act. Visa cancellation in these circumstances is mandatory. Following the Applicant’s conviction on 30 July 2020 and the imposition of an aggregate sentence of 3 years imprisonment by the Local Court in NSW, the automatic cancellation occurred on 5 August 2020.
The Act goes on to provide that where a person has had their visa cancelled on character grounds, they may appeal to the Minister for a revocation of that visa cancellation if there is “another reason” why that should occur. In doing so they are invited to make representations in support of the cancellation revocation, and the Applicant did so. The Minister received these representations on 9 September 2020.[1]
[1] The Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [10] notes however that they are dated 26 August 2020.
Those representations were considered by a Delegate of the Minister who, on 21 December 2021 found that there was no other reason why the visa cancellation should be revoked.
On 14 December 2021 the Applicant applied to this Tribunal for a review of that decision. Apart from the material submitted by the Applicant requesting the Minister’s reconsideration of his visa cancellation,[2] no new material was put to the Tribunal by him. He represented himself as best he could, and the Tribunal also heard evidence in his support given by his partner.
[2] As provided in the Section 501G ‘G’ documents (G-documents).
THE TRIBUNAL HEARING
The Tribunal heard the application on 14 February 2022 using the Microsoft Teams Platform. The Applicant appeared from the Villawood (NSW) Immigration Detention Centre and while the Tribunal would have preferred to conduct an in-person hearing the COVID-19, quarantine arrangements at that centre prevented this from occurring. The Applicant, as necessary, was assisted by an interpreter in the Hazaraghi language.
By virtue of the provisions of subsection 500(6L) of the Act the Tribunal was required to make its decision by 4 March 2022, in the absence of which determination the refusal to revoke the cancellation would stand.
AN INITIAL OBVIOUS MATTER
The return to power of the violent and oppressive Taliban regime in Afghanistan in August 2021 means that no Australian government would refoul (compulsorily return) a person to that country who would be in danger of real persecution especially to the extent that their life would be in danger.[3]
[3] Department of Home Affairs, ‘Afghanistan – Situational Update’ (17 September 2021); G-documents at 28, Delegate’s decision at [76].
The Taliban regime displays particular hostility to both members of the Shi’a sect of the Islamic faith and to ethnic Hazaras.[4] This potentially places the Applicant in double jeopardy were he to be refouled and there is evidence that both his father and one of his brothers have already met their deaths at the hands of that regime.[5]
[4] William Maley, ‘On the Return of Hazaras to Afghanistan’ (Australian National University, 9 October 2021).
[5] Protection (Class XA) Visa Decision Record attached as Annexure A to the Respondent’s Supplementary Contentions dated 9 February 2022 (Supplementary Contentions).
Apart from the obvious public policy on this issue it should be noted that as the Applicant has previously been assessed as being eligible for a protection visa, the Act itself prohibits the removal of the Applicant to Afghanistan.[6]
[6] The relevant sections of the Act (ss 36(2), 36(1C), 195C(5)(a) and 197C(3)) are set out and discussed in the Respondent’s Supplementary Contentions.
THE APPLICANT’S OFFENDING HISTORY
The Australian Criminal Intelligence Report reveals that the Applicant committed a number of offences for which he appeared before the Courts in the period from March 2011 until October 2020.[7]
[7] G-documents at 34-37.
Between March 2011 and February 2019 there are some nine separate offences which include several motor vehicle offences, numerous drug possession offences, common assault and domestic violence offences, assault occasioning actual bodily harm, prohibited weapons offences, use of false name and failure to answer bail. Generally, fines or bonds were imposed in relation to those offences.
From October 2019 to October 2020 the Applicant appeared before the Local Courts on four occasions charged with a variety of offences all of which related to acts of domestic violence, contravention of Apprehended Violence Orders or commission of an indictable offence. All these charges arose from the same incident.
The Respondent’s SFIC sets out the nature of the charges leading to the imposition of a custodial sentence (citations omitted).
“(7) On 30 July 2020, the applicant was sentenced to an aggregate of 3 years’ imprisonment by the Local Court New South Wales at Parramatta for contravene prohibition/restriction in AVO (Domestic), stalk/intimidate intend fear physical etc harm (domestic), armed with intent to commit indictable offence and common assault (DV) (the aggregate sentence).
(8) On the same date, a previous breach of a Community Corrections Order (CCO) was also called up relating to an offence of breaching an AVO from 2 October 2019 for which the applicant received a sentence of 8 months imprisonment to be served concurrently with the aggregate sentence.1 The applicant was also convicted of failing to appear in accordance with a bail undertaking on 1 July 20202 for which no penalty was imposed: GD 35. The aggregate sentence was not varied on appeal to the District Court of Parramatta.”
Brief description of charge Maximum penalty Sentence Stalk/intimidate intend fear physical etc harm 5 years’ imprisonment
Indicative term of 18 months, served concurrently Armed w/i commit indictable offence-T1 7 years’ imprisonment
Indicative term of 2 years, served concurrently Common assault (DV)-T2 2 years’ imprisonment
Indicative term of 7 months, served concurrently Contravene prohibition / restriction in AVO (Domestic) 2 years’ imprisonment
Indicative term of 9 months, served concurrently Total sentence 3 years’ imprisonment, with a non-parole period of 18 months
The Tribunal is aware that any convictions themselves cannot be challenged or called into question, nor can the Tribunal “go behind” the convictions and re-examine matters de novo.[8]
[8] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 per Sheppard J at 596; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[9]
[9]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at 653 per Fisher and Lockhart JJ
In HZCP, Bromberg J said:
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[10]
[10] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78].
Elsewhere in the matter of NDBR, Moshinsky J stated:
Further and in any event, in circumstances where the Tribunal was required to consider the nature and seriousness of the offence (under paragraphs 11.1(a) and 11.1.1 of Direction 79), it was open to the Tribunal to form its own view as to the character of the offending conduct. It was not bound by the description of the conduct given to it by the two sentencing judges. Although the Tribunal departed from the description of the conduct given by the sentencing judges, I do not regard this as questioning the essential facts upon which the sentence was based; rather, it concerned the way in which the conduct was to be characterised. [11]
[11] NDBR v Minister for Home Affairs [2019] FCA 1631 at [54].
In this instance it is relevant to examine both the remarks made by the Sentencing Magistrate and certain proceedings which took place both in the court proceedings and in the record of the Applicant’s interview by the Police. This is necessary, not in any way to impugn the verdict or sentence but because it sheds some light on representations advanced on behalf of the Applicant potentially constituting “another reason” for the visa cancellation decision to be revoked.
The matters before the Court involved the Applicant and his partner (AD) and mother of their child. On the night of 6 August 2019, the Applicant, who claims that he was “very, very drunk” that night[12] sent his partner a series of threatening and intimidating voice messages.
[12] Respondent’s Tender Bundle at 66.
These were both physically and sexually threatening and abusive, so much so that in sentencing, Her Honour remarked:
Those phone calls were not only intimidating, they were vulgar, they were threatening, they were disgusting. I will say at this point, listening to them last Friday afternoon left me feeling intimidated and threatened, quite frankly. In all my years on the bench and in practice, I have never heard phone calls like that before.[13]
[13] Ibid at 60.
The following day the Applicant went to the house they shared[14] where the Court found he threatened to report her to the child protection authorities as a “bad mother”, called her various disgusting names, assaulted her by throwing a set of headphones at her (which missed her and smashed) and menaced her by waving an ornamental (samurai) sword at her.
[14] Apparently, the Applicant was living elsewhere as a result of an AVO requiring him to be separated from AD.
The charges as brought and as found by the Court were based primarily on the statement given by AD to the Police after the event and on aspects of the Applicant’s ERISP[15] (recorded interview) with the Police on 7 August 2019.[16]
[15] ERISP – Electronically Recorded Interview of a Suspected Person.
[16] Respondent’s Tender Bundle at 83.
The Applicant in his Police interviewed admitted to the sending of the voice messages but denied that he had physically threated or assaulted AD and repeatedly claimed that:
“I love her, bro. I love her. She’s in the dust. I want to give her hand, bro.
…
Bro, she’s the love of my life, brother.”[17]
[17] Ibid at 91 and 103.
In relation to an alleged threat to throw acid on her:[18]
[18] Ibid at 104-105.
“Q212 Did you tell her that you'd throw acid ---
A How come ---
Q213 --- on her?
A --- brother, I'm gunna throw acid on her face, brother? If I don't, I'm telling you, I don't like a dust on her shoes. If it, every twice I wash her shoes, see? This is from the chemical, I wash clothes after- - -
CONSTABLE NAPIER
Q214 From the chemical? What chemical?
SENIOR CONSTABLE DZWAIRO
Q215 Did you---
A After the w, uh, the bleach. I swear, bro. Go see it.
Q216 All right.
A Go see how many pair of shoes ---"
Her Honour remarked that the Applicant’s expressions of love should be taken “with a very big grain of salt”.[19]
[19] Ibid at 77.
Further:
HER HONOUR: I don't know what he means by the words ‘I love her’, because, quite frankly, people who love each other don't use those words. As I said in my reasons for my decision, in 15 years on the bench, 20 years in criminal justice beforehand never heard such cold, calculated expressions before.
STRIK [Applicant’s solicitor]: But by the same token, the tone - and it's clearly someone not of sound mind saying those things. That has to be found for the accused--
HER HONOUR: I think he was perfectly of sound mind.
STRIK: In terms--
HER HONOUR: He knew what he was saying.
STRIK: He said the words, accepted, but--
HER HONOUR: He knows what they mean. He didn't say them once. This wasn't a one-off phone call. They were repetitive and on that matter alone, leaving aside what he then did in furtherance of those threats, the next day, my jurisdictional limit must be reached.[20]
[20] Ibid at 73.
However, in light of further representations which will be considered below, it is important to note that on 24 July 2020 when the case against the Applicant was first heard, AD attended the Court as a witness and attempted to withdraw all the allegations which she had made in the original police statement. Under questioning by the Applicant’s solicitor, she stated:
Q. Ma'am, did you have a conversation with the police prosecutor outside Court today?
A. Yes.
Q. Did you tell him something different to what you told the police officer in the video, is that right?
A. Yes.
Q. Do you want the protections of the Court so you can tell the truth about what occurred?
A. Well, yes, so I don't get prosecuted for what I've done. I lied, you know.
Q. Are you suggesting to the Court that you lied?
A. Yes.[21]
[21] Ibid at 35.
She then gave an entirely different story in which she stated that the headphones were already smashed and that she invented the story about the sword.
Her explanation was as follows:
HER HONOUR
Q. Is there any part of that statement that's true?
A. Just the Facebook messages; that's about it. That's about it. And because I was scared that she would turn around and say to DOCS that I didn't have a place to go and - with my son - I didn't want DOCS to get involved because it was my first interaction with child safety and like, what - and my aunty, she's been, like - that's her life, is domestic violence, her husband in gaol all the time. Her kids got taken off her, from child safety. Like, I don't want my life like that, your Honour, like, I don't want my life like that. You know, indigenous - you've seen indigenous communities, you've seen how many people come and go from the lifestyle that's in there and I just don't want my son to be like that.[22]
[22] Ibid at 38.
In the event Her Honour made it clear that she accepted AD’s original statement to the Police as being the truth and her later retraction, albeit in the Court, as untruthful, saying:
I have no doubt at all that her original version to the police was the reliable and the credible one, no doubt at all.[23]
[23] Ibid at 59.
The two other matters before the Court for aggregate sentencing were as given in the Respondent’s SFIC were as follows (citations omitted):
“Call up of breach of CCO
18. On 2 October 2019 the applicant breached an AVO issued on by the Fairfield Local Court on 18 August 2019 by approaching and contacting [AD], which the AVO prohibited him from doing. A CCO was imposed as a result of this breach for a period of 12 months on 3 October 2019. The breach of that CCO was called up on 30 July 2020 as the applicant had failed to report to Fairfield Community Corrections with 7 days, and later failed to report or contact Corrections several times.
Breach of AVO on 1 July 2020
19. On 19 March 2020, an Apprehended Domestic Violence Order (ADVO) was served on the applicant is favour of [AD], following a domestic violence incident on 9 January 2020 resulting in the applicant being convicted of Contravene (AVO) Domestic, Damage property <=$2000 and common assault (DV)-T2: One of the conditions of the ADVO was for the applicant not to approach [AD]. On 1 July 2020, the applicant admitted to being with [AD] at the Guildford Railway Station and the Shopping Centre in Merrylands in breach of the ADVO.”
The evidence presented to the Tribunal places it squarely on the horns of a dilemma. It is bound by law to take account of the verdict of the Court, namely that the offences on 6/7 August 2019 occurred and not to call that into question in assessing matters which arise under Direction 90.
On the other hand, the Tribunal must also consider the evidence about a (samurai) sword which was apparently used to menace the Applicant’s partner (AD):
·the Police incident reports were created on the basis of AD’s testimony that the Applicant picked up and menaced her with a sword,[24] and details are set out again in the Police Fact Sheet of 7 August 2019[25] and Statement of 1 September 2019;[26]
·the Applicant specifically denied the claims above in his statement to the Police[27] and his sworn evidence to the Tribunal that he never touched the sword, let alone menaced his partner with it;
·AD in her sworn evidence to the Court denied that the Applicant menaced her with the sword but rather said that “I just chucked it”[28] onto the floor as part of an attempt to “frame” the Applicant and give a false story to the Police. She repeated this denial to the Tribunal; and
·in Court the Representative for the Applicant made the point, not otherwise refuted, that there had been no DNA or fingerprint testing of the sword found at the incident and hence no physical proof that the Applicant had ever handled it.[29]
[24] Respondent’s Tender Bundle at 197-199.
[25] Ibid at 8-10.
[26] Ibid at 135-136.
[27] Ibid at 113-116.
[28] Ibid at 38.
[29] Ibid at 58.
Having considered the details of the Applicant’s offending behaviour and noting the decisions of the Court, it is then necessary to address the process by which any decision to revoke the visa cancellation may be made.
ANOTHER REASON
Section 501CA of the Act provides, relevantly:
(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.
In making a determination as to whether “another reason” exists, the Tribunal is bound by the provisions of section 499:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Those binding directions are set out in Ministerial Direction 90 (MD90 or the Direction) which commenced to have effect on 15 April 2021.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79 (MD79). This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[30]
[30] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [31] to arrive at a final determination.
[31] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In most circumstances an applicant puts to the decision-maker (in this instance, the Tribunal) what are called “representations” in support of a decision to revoke the cancellation. These representations trigger both a process and set of responsibilities which the Tribunal must discharge.
These have recently been set out in a judgement of Logan J as follows:
A most helpful summary indeed of what is entailed in addressing a claim as made and thereby exercising the jurisdiction consigned to the Tribunal is to be found in the Full Court’s judgment in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar). In short, what follows from Omar is:
(a)The decision-maker is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of the request for revocation: Omar, at [37].
(b)This obligation demands an honest confrontation with the human consequences involved with refusing an application for revocation: Omar at [38]; see also Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, at [3] (Allsop CJ).
(c)Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation, is a question of fact: Omar at [34](i); or put another way, there must be “nothing ambiguous” about the claim or matter: Kwatra v Minister for Immigration [2021] FCA 58, at [36] (Burley J).
(d)Practically, the obligation requires more than acknowledging or noting that representations have been made. Depending on the nature and content of those representations, the Tribunal may be required to make specific findings by reference to relevant parts of the representations in order to discharge the obligation according to law: Omar at [39]; see also: QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (QHRY) at [43] – [47] (Rangiah J). [32]
[32] Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660 at [12].
The problem confronting the Tribunal at this stage is that not only is the Applicant “unrepresented” in these proceedings, but it can hardly be said that he has provided any representations at all. All that is before the Tribunal is the hand-written entries on the formal form Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) with a Personal Circumstances Form plus the oral testimony from the hearing. There is also a letter of support from AD.[33]
[33] G-documents at 71.
From the application form, it is possible to derive the following “representations” (as written):
“I can not return to my country (Afghanistan) as my mother and I fled to Pakistan after my father’s assassination, 1982, by the Taliban who are governing the country – my father was a Minister and being Shciat-Hazar – was killed and wanted to kill all my family – that is why we fled to Pakistan – I don’t hold Pakistani citizenship so I cannot return to Pakistan and deporting me to Afghanistan would be signing my death warrant as I am wanted by the Taleban [sic] and will no arrive to my house from the Airport [indecipherable] the country – plus I am married defacto to an Australian citizen and I have a son aged 1 year. That strengthen my ties to this country. I undertake to go straight and follow the law and abide by all rules and regulations. Please consider this request – my life is in your hand.
…
Met my partner in 2017 and lived together ever since, have a child (son) one year old.
[My partner] needs my support both financially and psychologically as we are very attached to the boy and need maintenance and support.
…
My son will not have the life he deserves as I am the breadwinner in the family and I support them financially and the love ties would be broken.
The child lives with my wife [AD] and I. We share care and attention and love equally. My not being there would prove very hard to both my wife and son.
I have no priors. My wife testified that I did not hurt or assault her. The police brought charges against me after a domestic dispute that could happen between any married couple. However I promise and undertake not to offend or aggravate my wife in any shape or form.
[Regarding programmes or courses completed] Anger management program to be done – when moved to my classified prison. GV course.
[Regarding risk of reoffending] There shall be no reoffending in the future at all. Learnt my lesson.
I can not return to Afghanistan as I will be surely be killed on arrival – please consider Australia’s duty when considering my case.”[34]
[34] G-documents at 52-67. References here to the Applicant’s wife refer to his defacto partner, AD.
AD’s letter may be set out in full:
“I am writing on behalf of [LHKG] whom I have know for the past 4 years since being in Sydney Nsw to attest the needs of his Australian citizenship.
[LHKG] has been a partner, friend and support system for me since I moved from Queensland to study in Nsw Sydney, it's been a privilege to have know him for 4 years as he has been my motivation to succeed in life for our family,
For the 4 years I've known [LHKG], I have found [LHKG] To be a kind, earnest, honest, hardworking and trustworthy gentleman,
On many occasions since I've known [LHKG], entirely voluntary, [LHKG] has gone above and beyond for those he doesn't know and knows personally, helps elderly in need, those who are in need of physical and emotional support as he has done the same for me.
As his partner, mother of his beautiful child that dearly Misses him we are anxious to have [LHKG] back home and to physically and emotionally be a family again, as we haven't been able to do so for the last 14 months we have been praying and hopeful that [LHKG] is reunited with us as a family again, as he is as anxious as I am to have our beautiful family reunited,
I am happy to let you know how honest, peaceful, and conscientious [LHKG] is with everyone he meets, it's a great honor to know him and consider it a privilege to have [LHKG] as a partner father, and support system to our son and myself.
if you need any further information you can reach me via phone or email.
Yours Sincerely,
[AD]”[35]
[35] G-documents at 71.
The letter is addressed to the Department of Immigration’s Parramatta (NSW) office and dated 29 November 2021. It was sent via email with the “Subject” given as CM: Re: reference letter for [LHKG] and relates to “the needs of his Australian citizenship”. It is elegantly set out but does not appear to directly address the central issue of the Applicant’s potential deportation, rather just the need for family reunion.[36] Compared with the language used by AD in giving her oral testimony in Court and in evidence to the Tribunal, it appears that this has been written for her or written by her with some professional assistance, although she was pressed on this point and told the Tribunal that the letter was entirely her own work. However, nothing may turn on that.
[36] This was the point put to AD in the Court by the Police Prosecutor as the motivation for her seeking to refute her earlier testimony to the Police. Respondent’s Tender Bundle at 46.
Accompanying this email is a File Note from the Department of Home Affairs as follows:
“I contacted [AD] on the telephone number provided in her submission in support of [LHKG]’s revocation request.
[AD] confirmed that she and [LHKG] had been in a relationship for four years, that the relationship was ongoing and it was her intention that he would live with her and their son should he be released from immigration detention.
She advised that she is an indigenous Australian and comes from a community where there is a lot of crime and domestic violence and doesn’t want her son to be ‘another indigenous kid who grows up without a father’. She stated she wants to get [LHKG] the support he needs to break the cycle.
She advised she has been experiencing financial difficulties and [LHKG] is not able to support her while he is detained.
[AD] confirmed her willingness to be contacted by the Department Of Home Affairs again should the need arise.”[37]
[37] G-documents at 72.
EVIDENCE BEFORE THE TRIBUNAL
Both the Applicant and AD gave sworn evidence before the Tribunal and both were subject to cross-examination by the Respondent’s representative and the Tribunal itself.
The Applicant
The Applicant told the Tribunal of the trauma which he had experienced in Afghanistan which included witnessing the beheading of his father by Taliban forces and his perilous 29-day journey to arrive at Christmas island. He said that he suffers recurring episodes of flashbacks and mental disturbances as a result of these events but that he is “too shy” to seek counselling and support from mental health professionals and feels inhibited from talking about his experiences.
He was pressed on details of his criminal convictions and was somewhat evasive in his recall of events and dismissive of some of the low-level drug possession and driving offences. More to the point, pleading limited comprehension of the English language, he claimed that he did not understand these offences to have led to “convictions”, hence his failure to disclose them on his incoming passenger cards on at least two occasions.[38]
[38] G-documents at 47.
In relation to the events of 6/7 August 2019 the Applicant agreed that he had engaged in sending AD vulgar and threatening voice messages, but he denied emphatically ever threatening her or his child or ever being violent towards them. He attributed some of the difficulties in their relationship to what he described as the influence of his mother-in-law and other members of AD’s family who he characterised as “junkies”.
He himself admitted that he had a history of low-level drug use, primarily marijuana, smoked for recreational purposes with workmates at the end of the week but challenged the Police report of having a history of using “ice”.[39] He said that he had occasionally used alcohol and this was a serious factor in the events of 6/7 August 2019 but stated that since then he had abstained from alcohol, tobacco or other drugs.
[39] Tender Bundle at 200.
The Applicant has a record of employment in Australia, working as a bricklayer, in warehousing, in a packing factory and as a chef.
He told the Tribunal that in February 2021 while in prison at Nowra (South Coast Correctional Centre) he had been pushed down some stairs by other inmates resulting in serious damage to his right leg and hip. He states that this incident occurred at 9.00 pm but that he was not transported to hospital until some 12 hours later in a Corrective Services vehicle (not an ambulance) in poor conditions such that he was advised at the hospital that there was some permanent damage to his leg. He had a pin inserted and now has one leg 10 centimetres shorter than the other which inhibits his ability to manage stairs. This will compromise his prospects of employment in areas such as bricklaying. There is no medical evidence before the Tribunal to confirm such details, but the Respondent did not seek to challenge the basic outlines or indeed the details, of the Applicant’s evidence on this point.
When asked if he had undertaken any courses while in custody or detention he stated that he has only recently completed courses related to anger management and domestic violence although he was unable to be specific about these courses and there is no probative evidence before the Tribunal in relation to any of them. He did however indicate that in his anger management course he had learned of the importance of controlling his emotions and listening to other people.
On a personal level, he gave evidence to the effect that he has extended family still in Afghanistan and Pakistan, including two sons, about whose ages he was unsure (perhaps 10 to 12 years of age). He stated that he borrows money and finds other ways to send financial support to them on a regular basis.
He told the Tribunal that his relationship with AD started sometime in mid-2017 and they have a son born in May 2019. He claimed that he is very much in love with AD and is devoted to her and his son. He speaks to his son every day on the telephone, or via video call or messaging. The Applicant stated that he managed to send money to AD every one or two weeks and did so largely by borrowing from friends. He was unable to specify amounts other than to say that he could produce records on his mobile phone to verify his claim and this was not further contested by the Respondent.
The Applicant stated that he first met AD almost as soon as she arrived in Sydney from her home in Queensland and that she moved into shared accommodation in a place which he was renting. They subsequently left this place and moved in with other friends to a unit where the incident of 6/7 August 2019 took place. The Applicant stated that he encouraged AD to pursue her TAFE course studies while they were living together, a detail confirmed in her testimony.
In conclusion the Applicant expressed his concerns about the “living conditions” of AD and his son, implying that they were very unsatisfactory and that he was even concerned about his son getting enough to eat.
Evidence of AD
AD’s letter of support has been set out above and was the basis of her evidence to the Tribunal. She confirmed details of how the couple met and of their relationship. She agreed that her mother was a “drug addict” who had a particular dislike of the Applicant.
In relation to the incident of 6/7 August 2019, it was her evidence that her statement to the Police was false and that it was done out of “spite” and “jealousy” to harm the Applicant because she had been told by members of her family that he was “cheating” on her. She told the Tribunal that the abusive voice messages which she received from the Applicant were part of an exchange between them in which she had been equally unpleasant but that she had deleted copies of her part of the conversation. She reaffirmed that she had told the Court that her initial story to the Police was false and that this was supported by the fact that there were witnesses to the incident in question[40] none of whom would come forward in Court to confirm her story for fear of being in trouble for supporting her lies.
[40] Tender Bundle at 197.
AD confirmed the details that the Applicant and his son were in contact several times daily but said that she had not visited him in prison or detention because relevant AVOs were still in place (until August 2021) and she did not want to breach those.
She affirmed that the Applicant was sending her money from time to time, that her living conditions were harsh (she had to wash her clothes in the bathtub) and that she was unable to work at the present due to her responsibilities as a single mother, although she would like to return to her TAFE studies at some point.
She concluded her evidence by saying that she had made a major mistake in the way she reported the incident; that she loved the Applicant and that she was convinced that he would make a good father and that he was needed by their son. She repeated her written assessment of the Applicant as a good man who was soft-hearted and committed to support of his family/families in Australia and in Afghanistan/Pakistan.
She apologised to him for her previous actions.
Credibility
The use of Microsoft Teams platform for the Applicant and only telephone conversation in relation to AD renders it exceptionally difficult for the Tribunal to be as confident as it would wish to be in terms of assessing the credibility of either as witnesses.
In SZFQ Lee J stated:
The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all the evidence.[41]
[41] SZFQ v Minister for Immigration and Border Protection [2017] FCA 1525 at [51].
On the one hand, Fisher J in Georges and Minister for Immigration and Ethnic Affairs observed that:
[I] had the opportunity of observing the applicant… during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.[42]
[42] [1978] AATA 63; (1978) 1 ALD 331 at 334.
On the other hand, there is a clear warning from the High Court that:
30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [43]
[43] Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [29]-[30]. Footnotes omitted.
For the Applicant a great deal rides on the decision of this Tribunal and the depersonalising impact of technology the Tribunal is forced to use in current circumstances adds to the burden of decision-making. The Tribunal shares the view expressed by Logan J to the effect that decision-making is compromised:
given that the then prevailing public health restrictions dictated that the hearing be conducted by the impersonalising, technologically capricious, audio-visual medium of Microsoft Teams, rather than by the superior means of an appearance in person in the courtroom.[44]
[44]Le v Commissioner of Taxation [2021] FCA 303 at [9].
Nevertheless, the Tribunal has come to the conclusion that, for the most part, both the Applicant and AD gave credible evidence. They did not attempt to mislead or misinform the Tribunal and that, in the case of the Applicant, those parts of his evidence which were problematic arose from genuine difficulties of recall and language rather than from any deliberate concealment or deception.
The Tribunal turns now to consideration of the criteria set out in Ministerial Direction 90.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Tribunal must give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[45] Any such assessments must necessarily be speculative and weigh what an Applicant says about his or her own future conduct against what the evidence before the Tribunal suggests.
[45] Dharma and Minister for Home Affairs [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
Much of the Applicant’s behaviour has been reprehensible and it is to be noted that his offending behaviour commenced quite soon after his initial arrival in Australia. His offending includes a range of matters involving drugs, deception, acts of violence and breaches of court orders and bail conditions. There is no excuse for any of them and they are, to some degree matters of increasing seriousness.[46]
[46] Although there was an assault occasioning actual bodily harm as early as March 2011.
The Applicant’s offending conduct has been serious, but the Tribunal believes that there are reasons to accept that the likelihood of the commissioning of further offences is reduced by the Applicant’s more newly formed family responsibilities and a degree of understanding of the consequences of further offending behaviour.
The Tribunal agrees with the Respondent’s submission that the Applicant still displays a degree of denial about his offending behaviour and only a limited insight into such matters. This is complicated by the continued insistence of both the Applicant and AD that the Applicant did not commit the offences of which he was convicted in August 2019. His denial and the evidence of AD in support must not, however, be preferred over the verdict of the Court.
There is reference in the remarks of the Sentencing Magistrate to the state of the Applicant’s mental health and his need for assistance[47] and this is raised in the Sentencing Assessment Report of 27 July 2020.[48] The Applicant has shown some understanding that he needs professional help to manage these issues[49] but so far has taken no proactive stapes to engage with such services, even within the prison or detention centres. His plea of “shyness” is problematic.
[47] Respondent’s Tender Bundle at 77.
[48] Ibid at 168.
[49] Ibid at 68.
The Applicant has been assessed as being at a “T2/Medium” risk of reoffending on the Level of Service Inventory – Revised (LSI-R) scale.[50] The Sentencing Magistrate assessed his prospects of rehabilitation as “guarded, at best”.[51]
[50] Ibid at 169.
[51] Ibid at 78.
The Tribunal accepts that the risk of reoffending is medium, although towards the lower end of that scale. It would be much reduced were he to take steps to seek proper treatment for his mental health challenges.
The Tribunal gives a moderate degree of weight to this criterion counting against the Applicant.
FAMILY OR DOMESTIC VIOLENCE
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor MD79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness. MD90 (at sub-paragraphs 8.2(1) and (3)) sets out matters to be considered by the Tribunal as follows:
(1) 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 in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…
…
(3) In considering the seriousness of the 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 of increasing seriousness;
(b) the cumulative effects of repeated acts of family violence;
(c) rehabilitation achieved at the time of decision since the person's last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (especially children);
(iii) efforts to address factors which contributed to their conduct…
The Tribunal has already expressed its concern about how to evaluate the conflicting evidence related to the commission of any domestic violence offences, but again must be guided principally by the finding of the Court.
The evidence of AD in this respect cannot be ignored and while the Respondent in their SFIC (at [38]) states that:
“there is no evidence of any cumulative effect of repeated offending upon AD, and AD states that she is eager to have the applicant back in her and her son’s life (GD 71), it is also reasonable to assume that the repeated domestic violence would have had some effect on [AD]”.
The Tribunal also reaffirms what it said in Mendoza that:
[t]he Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[52]
[52] Mendoza and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 686 at [48].
Even were all the matters of the sword and the headphones to be ignored, it would still be apparent that the Applicant has engaged in acts of psychological abuse as revealed in the threatening and demeaning voice messages which were of such concern to the Sentencing Magistrate.
This criterion must necessarily count against the Applicant on the basis of the convictions, but the evidence before the Tribunal regarding the factual context for such convictions is persuasive of the fact that it should be accorded limited weight.
BEST INTERESTS OF MINOR CHILDREN
Although the Applicant has two minor sons in Afghanistan this criterion applies only to minor children in Australia – in this instance, a son MN born in May 2019.
The evidence of the Applicant and of AD is that the son and his father are in contact almost every day, or indeed more than once every day. It is also in evidence that the son misses his father and cries because of their separation.
The child’s mother, AD gave evidence to the effect that the family are dependent upon small amounts of financial support provided by the Applicant as they have access to no other substantial sources of income outside the welfare system.
In reply to a question by the Respondent, AD affirmed that she and the child were members of the Indigenous community. In Hands, Allsop CJ stated:
[i]t is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour.[53]
[53] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [50].
Although the Applicant is himself not an Indigenous person, as he has no other family members in Australia, it is reasonable to assume that the child will identify primarily with and be incorporated into his mother’s indigenous community importing all the aspects of family ties and kinship identified by the Chief Justice.
The Respondent urges that this criterion should be accorded limited weight while accepting that prima facie it favours revocation. In its SFIC (at [54]) it submits (citations omitted):
“Additionally, the applicant’s recidivism risk and his domestic violence conduct to date, some of which occurred in the presence of his son, ought to be considered by the Tribunal when assessing [MN’s] best interests. While [MN] was very young when previously exposed to domestic violence, it is reasonable to assume that this conduct had some impact upon him. Any further domestic violence conduct he is exposed to would also likely have a negative impact on him.”
The Tribunal is unpersuaded of the merits of this submission which exaggerates the details of the incident in question and then goes on to draw a long bow in relation to “exposure” or impact.
The clear weight of the evidence is that the minor son MN would suffer considerably from being denied the presence of his father in his life, one which is already an established and meaningful presence and that as a result this criterion should weigh significantly in favour of a revocation decision.
THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Sub-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.
Sub-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 granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing 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 they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
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 taken as a whole, and in this respect, decision-makers are required to 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 which is ultimately determinative.[54] 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 MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[54] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[55]
[55] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In doing so the Tribunal has come to the conclusion that, considering all of the evidence, the weight accorded should be moderate.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that,
“[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[56]
[56] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[57]
[57] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[58] and more clearly supported by Wigney J in FHHM. [59]
[58] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[59] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[60] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[61]
[60] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[61] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
[w]hile affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[62]
[62] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[63]
[63] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
International non-refoulement obligations
It will be recalled that in February 2010 the Applicant was granted a Class XA, Subclass 866 Protection visa which was later converted to a Return Resident visa. The change of visa does not in any way vitiate the original finding that the Applicant was a person in respect of whom Australia had protection obligations under international law. The protection finding and obligation (as per section 197C(5)(a) of the Act) remains on foot.
This is clearly a matter of concern in this application. As explained above, both public policy and the provisions of the Act indicate that there is no realistic prospect of the Applicant being refouled to Afghanistan.
Changes in the international environment, especially in places such as Afghanistan led the Government to enact the Migration Amendment (Clarifying International Obligations for Removal) Act in May 2021. It modified the previous operation of subsection 198(2B) of the Act which provides that unlawful non-citizens whose visas have been cancelled under subsection 501(3A) must be removed from Australia “as soon as reasonably practical” by inserting a new subsection 197C(3) which in effect stays the operation of section 198 where a “protection finding” has been made, unless the non-citizen’s previously granted protection obligations have been quashed or set aside, the protection obligations no longer apply or the individual requests voluntary removal.
Subsection 197(3) guarantees that if the Applicant’s visa remains cancelled, he will still be required to be detained (pursuant to section 198) but he will not be returned to Afghanistan.
In passing, the Respondent concedes, nevertheless, that this criterion “weighs in favour of revocation”[64] and agrees that the Applicant would have limited family support if returned to Afghanistan and have far less (in effect, no) access to mental and other health services.[65]
[64] Respondent’s SFIC at [66].
[65] Ibid at [76]-[77].
The negligible prospect of return would vitiate any concerns that refoulment of the Applicant would cause any reputational damage to Australia in relation to the discharge of its obligations under international law or conventions to which it is a party.
Arising from this consideration, the Tribunal determines that the criterion of non-refoulement counts to a limited degree in favour of revocation on the basis that, the outside possibility remains that after a period of prolonged detention and a change of regime in Afghanistan,[66] refoulement remains theoretically possible.
[66] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12.
That however is not to deny that there would be other consequences of a decision to affirm the visa cancellation which arise under this head of consideration.
The Tribunal thus needs to address this matter in conjunction with the consideration of impediments if removed, although making a separate finding on each.
In relation to the specific matter of non-refoulement the Tribunal finds that this counts in favour of the Applicant and while the prospect may not be a real or immediate one, the way in which MD90 is cast requires its consideration at face value. The Tribunal finds, consonant with other recent decisions of this Tribunal[67] that this criterion counts significantly in favour of the Applicant – although there is a relevant caveat identified and discussed at paragraph 173 of this decision.
[67] QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 226 at [145], per Deputy President Cowdroy, Senior Member Nikolic and Member Kennedy.
Impediments if removed
If the decision under review is affirmed, what the Applicant will face is in fact the prospect of indefinite detention. That is a relevant legal consequence of a finding that an applicant is rendered an unlawful non-citizen (by virtue of having no valid visa to be in Australia) but cannot be removed.[68]
[68] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Le [2016] 244 FCR 56 at [70].
In WKMZ the Full Federal Court drew attention to the fact that once a final decision on visa cancellation has been made, an applicant still has a limited number of alternative options to pursue to avoid refoulement but:
While those options are being genuinely, promptly and reasonably considered and pursued, a person may nevertheless suffer continued loss of liberty with no chronologically fixed endpoint, and no endpoint ascertainable by the individual concerned, so that his or her detention is properly described as ‘indefinite’.[69]
[69] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2012] FCAFC 55 at [136].
In RRFM, Snaden J drew attention to the fact that there might be some “tension in the authorities on this point”[70] with the view in WKMZ and that of another Full bench of the Federal Court in Le not being reconcilable, nevertheless:
Fortunately, it doesn’t much matter. Whether it was a relevant legal consequence or not, the Tribunal was obliged to consider the prospect of the applicant’s being held in indefinite or prolonged detention regardless because … that was a circumstance he (the applicant) advanced as “another reason” why the Cancellation ought to be revoked.[71]
[70] RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1273 at [35]
[71] Ibid at [36].
As already noted, the Applicant himself has not advanced this, “another reason” in support of his application, but it is not one the Tribunal feels free to ignore nonetheless.
In Ellison the Federal Court (Murphy J) stated:
[i]n reviewing the reconsideration decision, the Tribunal had an inquisitorial role. It was required to determine the substantive issues in the application as raised by the materials before it, and it was not restricted to the case expressly articulated by (the Applicant).[72]
[72] Ellison v Comcare [2022] FCA 95 at 103.
Indefinite detention is not an inevitable outcome of a refusal to revoke a visa cancellation as there are options open to the Minister to provide alternatives such as granting a visa on public interest grounds (pursuant to section 195A)[73], allowing a person to reside at a place other than being held in detention (pursuant to 197AB), withdrawal of protection obligations (pursuant to section 197D) or facilitating the removal of the applicant to a third country. However, the Applicant labours under potentially additional burdens (pursuant to subsection 46A) because of his status as an unauthorised maritime arrival.
[73] Irrespective of whether or not a formal application has been made.
The Tribunal should of course heed the warning of the Federal Court and “avoid speculation as to what might or might not occur in future decision-making”.[74]
[74] DOB18 v Minister for Home Affairs [2018] FCA 1523 at [35].
Indefinite detention is a valid exercise of power for the purpose of removing a non-citizen from Australia, is not punitive and does not amount to any form of “extra” or “additional” punishment.[75]
[75] Falzon v Minister for Immigration and Border Protection [2018] HCA 2.
However, for the Tribunal to pass over, without comment or consideration, the prospect of indefinite detention as an outcome of its deliberations, would not be consonant with the exhortation in Hands to be mindful off the human costs of reliance upon “decisional checklists or formulaic expression.”[76]
[76] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
It also recognises the comment made recently by this Tribunal that:
[i]rrespective of options that might emerge, non-revocation represents a significant, adverse outcome for the Applicant. It gives rise to the prospect of indeterminate deprivation of his personal liberty, with concomitant impacts on his mental health and significant distress for his family members and others who support him.[77]
[77] QDWQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 226 at [143]. Regardless of this, the Tribunal’s ultimate decision was to affirm the cancellation decision under review.
On the basis of previous Tribunal authority, the Respondent submits that the criterion of “impediments” should be given “neutral” weight because removal will not take place.[78]
[78] DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993 at [149].
There is in fact some division of opinion within this Tribunal as to this very question. In the case cited by the Respondent, the Tribunal (consisting of a single member) found that neutral weight should be given to this criterion because:
[t]he Tribunal finds that a proper characterisation, based on a literal interpretation of the plain words of this consideration, supports this consideration being given neutral weight whilst removal is not a possibility.[79]
[79] Ibid at [147].
More recently, a three-member panel of this Tribunal has made a different finding, namely that this criterion counts “very substantially” in favour of revocation while fully conscious of the fact that non-refoulement (again in this instance to Afghanistan) was not a practical option in the circumstances of the case.[80]
[80] QDWD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 226 at [148],
The Respondent’s submission ignores the fact that non-removal does not mean return to the community or “freedom”. Non-removal means potential indefinite detention, and this is not “impediment-free”.
The Respondent has not addressed this matter in its submission and clearly the Ministerial Direction refers only to impediments “if removed”.
However, what the Tribunal is considering is whether there is “another reason” that the cancellation decision should be revoked.
Section 501CA (4)(b)(ii) refers to “another reason” – it does not define, let alone purport to limit, what that other reason might be.
Ministerial Direction 90 states in its Principles (at paragraph 5.2) that they are a “framework within which decision-makers should approach their task” and the “factors… that must be considered in making a decision under… section 501CA are identified” in the relevant part of the document.
There is nothing in MD90 which specifically excludes other factors being taken into account as establishing “another reason” provided that all the designated factors have been considered.
The Objectives clauses of MD90 (at paragraph 5.1) require that the decision-maker “must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case”. (Emphasis added). It does not limit the discretion of the decision-maker to only those factors or criteria otherwise specified in MD90.
Indeed, the section of MD90 dealing with Other Considerations states (at sub-paragraph 9(1)) that while specified criteria are to be considered, “[t]hese considerations include (but are not limited to)” those then specified (emphasis added).
Confining itself to an assessment of the impact of impediments “if removed” the Tribunal finds that this weighs in favour of the Applicant to a significant extent – although there is a caveat discussed further at paragraph 173 of this decision.
Impact of revocation upon victims
Sub-paragraph 9.3(1) of Direction 90 provides:
Decision-makers must consider the impact of the section 501 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.
Strictly speaking there is only one “victim” in terms of the Applicant’s behaviour, namely AD.[81] The Respondent’s SFIC (at [80]) then seeks to bifurcate AD into a family member and a victim – each of whom is supposed to have a separate interest in advocating for the Applicant to remain in Australia and that (emphasis in original):
“[AD]’s general desire for him to remain in Australia should not be considered as an additional factor in favour of revocation separate and additional to the Tribunal’s consideration under the consideration below, unless satisfied that there is some aspect of her evidence as a victim as compared with her evidence as a family member.”
[81] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [74].
In Bale[82] the Federal Court stated:
[24] The Tribunal’s treatment of the impact on victims if the cancellation decision were revoked appeared at [54] in these terms:
The Applicant’s wife, who is properly considered a victim, gave evidence for the purpose of this consideration. Nothing in her evidence, nor inferred from the evidence, raised anything relevant to this consideration.
[25] The submission is that the last sentence involves jurisdictional error because the wife’s evidence that she supported her husband’s desire to remain in Australia was relevant to any assessment of the impact of the non-cancellation on her as a victim. On this view, whilst it was relevant to know that Mr Bale had ties to the Australian community, as evidenced by his Australian wife’s support for him, it was also relevant to know that when wearing her hat as one of his victims she was also content for him to remain.
[26] I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously. And, as [54] of the Tribunal’s reasons shows, the Tribunal was well — aware that she was one of his victims.
[82] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [24]-[26]. Citations omitted.
AD has given written and oral evidence in support of the revocation of the visa cancellation and in PGDX[83], the Federal Court (Kerr J) discussed an analogous situation where a wife(partner)/mother was also the victim. His Honour stated:
[85] As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child’s wellbeing. But her evidence was not confined to that. She advanced, albeit modestly, her own claims.
[86] She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
[87] Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.[84]
[88] To revert to Rangiah J’s reasoning in Viane cited above at [27] the effect of Ms K PGDX’s evidence was that as PGDX’s ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
[89] Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration.
…
[91] I need not decide if generic matters of the kind identified by Perram J in Bale might in a different case be sufficient to engage the operation of cl 14.4 of Direction No 79. That is because Ms K PGDX’s several modest, mundane but direct claims regarding the impact on her of a decision to revoke the cancellation of her former husband’s visa extend beyond the generic. As she had explained to the Tribunal when she was asked if she had anything she wanted to add she informed the Tribunal that she wanted it to take into account that PGDX being given his visa back and being permitted to stay in Australia would make her life “a little bit easier.”
[83] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.
[84] The relevant Ministerial Direction at the time, the terms of which are reincorporated without amendment in MD90.
The evidence of AD is clearly consonant with all the elements identified by Kerr J and to that extent must be considered and weighed in favour of the Applicant. In the view of the Tribunal they do so to a significant extent.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction 90 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. This consideration has two elements:
(a)first, the Tribunal should have regard to the impact that a person's removal might have upon the person'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 (sub-paragraph 9.4.1(1)); and
(b)secondly, the Tribunal should have regard to the person's broader ties to the Australian community, including by reference to how long that person has resided in Australia (although less weight should be attributed to this factor where a person commenced offending shortly after their arrival), how long the person has been contributing positively to the Australian community, and the strength, duration and nature of social ties with Australian citizens, permanent residents or people who have an indefinite right to remain in Australia (sub-paragraph 9.4.1(2)).
The Tribunal notes the issue of repetition of considerations as far as the impact on AD in her role (per Bale, “wearing her hat”) as a family member and while not giving it any sort of “double-counting” element accepts that her relationship with the Applicant establishes part of the limb of sub-paragraph 9.4.1(a) for consideration.
However, it is not “double counting” to agree that there would be an adverse impact on the Applicant’s son if the Applicant were removed and the Respondent concedes (SFIC at [85]) that his would be manifest, either “on the Applicant’s return to Afghanistan, or his ongoing detention”.
The Applicant has some record of employment in Australia and in his oral testimony indicated that while he did not have any other family here, he nevertheless had some “workplace friends”.
The Tribunal has already noted the existence of the qualifying condition in sub-paragraph 9.4.1(b) of the Applicant’s history of early offending.
The Tribunal accords this criterion some limited weight in favour of the Applicant.
ADDRESSING THE CALCULUS
The summary of the Tribunal’s findings on the criteria is as follows:
(a)Protection of the Australian community – against the Applicant to a moderate degree;
(b)Family or domestic violence – against the Applicant to a limited degree;
(c)Best interests of minor children – in favour of the Applicant to a significant degree;
(d)Expectations of the Australian community – against the Applicant to a moderate degree;
(e)Non-refoulement obligations – in favour of the Applicant to a significant degree (with a caveat, discussed at paragraph 173);
(f)Impediments if removed – in favour of the Applicant to a significant degree (with a caveat, discussed at paragraph 173);
(g)Impact on victims – in favour of the Applicant to a significant degree; and
(h)Ties to the Australian community – in favour of the Applicant to a limited degree.
DISCUSSION AND CONCLUSIONS
The Respondent has made much of the fact that there is no realistic prospect (in current circumstances) of the Applicant being refouled to Afghanistan and then, rightly, conceding that the most likely outcome of any decision to affirm the visa cancellation would be for the Applicant to suffer a period of perhaps “indefinite” detention.
The Applicant suffers from mental health and physical health problems, both of which need to be addressed. Both of which, if remaining unaddressed, have the potential to render his quality of life increasingly bleak.
The Applicant has a partner/wife and a child, both of whom are Indigenous Australian citizens and both of whom have need of him. Both of them would suffer as a result of his indefinite detention.
It cannot be gainsaid that there is some possibility of the Applicant reoffending, especially if he fails to take steps to address his mental health issues. The findings of the Court cannot be ignored, and the expectations of the Australian community are (by definition) not favourable to his remaining in Australia.
On the other side of the ledger, the exhortations in Hands are not to be ignored and on an entirely generalised basis would themselves strongly suggest that the visa cancellation be revoked.
When sub-paragraph 9(1) of MD90 makes it clear that “other considerations” are not limited to those prescribed, it is a clear invitation for the Tribunal to take into account matters which are before it in evidence, although not advanced in formal representations (per Ellison and Hands) and in this instance the prospect of a decision resulting in the indefinite detention of the Applicant is a matter which has weighed in the mind of the Tribunal.
In the event that the Tribunal has, in error, strayed into consideration of matters which it should not, the Tribunal makes it clear that, in its final determination, it has had specific regard to the nominated criteria of Ministerial Direction 90 and has based its decision upon these. They contain elements which are both for and against the Applicant to varying degrees.
Taken together, the two criteria – the best interests of the minor child and the impact on the victim would, in the opinion of the Tribunal have overborne all the other negative considerations and been sufficient to support revocation of the visa cancelation.
A determination on both the “non-refoulment” and “impediments if removed” criteria is clouded by the issue of whether the Applicant’s possible removal to Afghanistan should be considered a real issue or a mere chimera. Were it to be a real issue, both criteria would have counted heavily in favour of the Applicant. If chimerical they may, as the Respondent would contend, be of only limited or neutral weight but nevertheless they would still have counted in favour of the Applicant.
However the calculus is formulated, it weighs in favour of the Applicant.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 175 (one hundred and seventy -five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..................................[sgd]......................................
Associate
Dated: 24 February 2022
Date(s) of hearing: 14 February 2022 Applicant: In person Solicitors for the Respondent: Ms O Hicks, Australian Government Solicitor
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