LSCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3363
•18 October 2023
LSCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3363 (18 October 2023)
Division:GENERAL DIVISION
File Number: 2023/5703
Re:LSCF
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Britten-Jones
Date:18 October 2023
Place:Melbourne
The Tribunal affirms the decision under review.
...................[sgd].....................................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has been convicted of rape – whether there is ‘another reason’ to revoke mandatory cancellation decision – the likely consequence of an affirmation decision is indefinite detention and it would have a devastating impact on his wife – the primary considerations of the protection and expectations of the Australian community outweigh the countervailing considerations – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 124
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
HZCP Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Immigration and Border Protection v Le [2016] FCAFC 244
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
NRFX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 21
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Deputy President Britten-Jones
18 October 2023
This is an application for review of a decision to not revoke the mandatory cancellation of the applicant’s Safe Haven Enterprise (Class XE) visa (the applicant’s visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA AND SUBSEQUENT PROCEDURAL HISTORY
On 23 November 2022 the applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
On 19 December 2022 the applicant sought revocation of the cancellation decision and made representations in support of revocation.
On 3 August 2023 a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[2]
[2] Migration Act 1958 (Cth) (Migration Act) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). Therefore, the applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[3] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[4]
[3] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22] and [36].
[4] Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [14].
The applicant does not pass the character test. The only issue for the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to the principles and considerations in Direction 99.[5] The applicant said in his reasons for requesting revocation that he has been found to be a refugee and would face persecution if returned to his country and that he faces indefinite detention. He also said he would face permanent family separation as he has an Australian citizen wife.
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99).
Direction 99
The purpose of Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023) (Direction 99) is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA. Under s 499(2A), the Tribunal must comply with a direction made under s 499.
The relevant principles that the Tribunal must apply to the task of deciding whether to revoke a mandatory cancellation are set out in paragraph 5.2 of Direction 99 as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
In making a decision under s 501CA(4), other considerations must also be taken into account, including (but not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[6]
[6] Direction 99 at 7.
BACKGROUND
The applicant was born in June 1996 in Pakistan after his parents had fled from Afghanistan to escape the violence they faced as Hazara Shias. The applicant had a traumatic childhood and was subjected to violence. His father was killed in an attack on Hazaras in 2010. His brother was killed in a bomb blast in 2012. The applicant has been deeply impacted by these deaths and they caused the family most significant hardship.
The applicant’s family decided that he should attempt to get out of Pakistan. People smugglers were engaged and eventually the applicant arrived in Australia by boat as an unauthorised maritime arrival. He was on Christmas Island from 21 July 2013 to December 2014, then in Darwin in further detention until about February 2015 when he was released into the Australian community. He was granted a Safe Haven Enterprise Visa on 6 August 2018.
The applicant married his wife on 27 December 2021.
On 31 May 2022 the applicant was convicted after pleading not guilty of rape and two counts of sexual assault. The events the subject of these convictions took place on 23 March 2019. He was sentenced to seven years imprisonment. An appeal has been lodged against the sentence and conviction and is listed for hearing on 9 November 2023.
On 15 September 2022 the applicant was convicted on a guilty plea of four charges of contravening a bail condition, committing an indictable offence whilst on bail and stalking. The events the subject of these convictions took place in February 2022.
The applicant was remanded in custody on 24 March 2022 and has been incarcerated ever since.
CONSIDERATION
Protection of the Australian community – 8.1 of Direction 99
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. As required by paragraph 8.1(2) of Direction 99, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 99
The applicant’s criminal record shows the seven years imprisonment for rape and sexual assault and the 30 days imprisonment for the four counts of contravening a conduct condition of bail, stalking and committing an indictable offence whilst on bail. The most serious offending was confined to the night of 23 March 2019.
The applicant is pursuing an appeal against the conviction and sentence for the rape and sexual assaults. He maintains his innocence for these offences. For the purposes of this application, I rely upon the reasons for sentence[7] which describe the offending as a serious example of the offence of rape. The offence was committed against the applicant’s then partner’s younger sister who he overwhelmed physically by pinning her to the ground and holding her by the arms. He did not use a condom when penetrating her vaginally. The impact on the victim has been devastating both psychologically and socially. This was a sexual crime of a violent nature which is viewed very seriously by the Australian Government and the Australian community. The seriousness of the offending is reflected in the seven year custodial sentence.
[7] HZCP Minister for Immigration and Border Protection [2018] FCA 1803 at [78].
The other convictions of stalking and contravening a condition of bail are also serious and I will deal with them further under the family violence consideration. The applicant was on bail awaiting his trial and was forbidden from contacting any witnesses for the prosecution. Despite being aware of this condition, the applicant contravened it by making multiple contact with the victim’s sister. The offending was considered serious enough to attract a custodial sentence of 30 days but it took place during a confined period in February 2022.
In his supplementary statement, the applicant referred to alleged assaults at Hopkins Correctional Centre and Ravenhall but I do not take them into account because there was limited evidence about them and they are not the subject of convictions.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 99
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[8] As required by paragraph 8.1.2(2) of Direction 99, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[8] Direction 99 at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[9] Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.
[9] (2014) 225 FCR 424; [2014] FCA 673.
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 99
If the applicant were to engage in further similar criminal offending, then the nature of the harm would be very serious because of the inherent nature of rape and its consequences upon the victim. In this case the victim has suffered significantly. She has depression, constant emotional pain, anxiety and flashbacks. She does not go out and see her friends.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 99
The applicant relies upon a statement by the sentencing Judge that she was not satisfied beyond reasonable doubt that the applicant poses a risk to the sexual safety of persons in the community. Further he relies upon the opinion of the psychologist, Dr Stevens, who assessed the applicant in his written report as a low to moderate risk of re-offending. In his oral evidence, Dr Stevens said that dynamic factors such as his marriage and support from friends and family would further reduce the likelihood of his re-offending. The applicant contends that he poses a low risk of re-offending.
In favour of the applicant is that he is married and has the support of his wife and her family. He was honest with his wife at the beginning of their relationship when he disclosed to her the charge of rape. They plan to live close to his wife’s family. In addition, he has the support of his past teacher and his wife who will take whatever steps are necessary to assist the applicant to reintegrate into society upon his release. He has plans to work and study. This likely stable and supportive environment will reduce the likelihood of his reoffending. Whilst in prison he has taken steps to improve himself by taking courses which will help gain employment and generally in the community. However, some programs which the applicant would like to attend have not yet been made available to him because of his pending appeal. I note that the sentencing Judge said that his prospects of rehabilitation are reasonable. Prior to his most serious offending the applicant had shown himself to be a person of good character who, despite his background of trauma and hardship, had stayed out of trouble and had contributed positively to the community. However, he has not undertaken any specific rehabilitative programs dealing with sexual offending and he continues to suffer from relatively high levels of anxiety and depression which Dr Stevens considered were factors in his previous offending. He needs to address these factors. The applicant said he would engage in appropriate rehabilitative programs, but I consider that at this stage he is not adequately rehabilitated. There remains a real risk, albeit at a low to moderate level, of further sexual offending. The nature of such offending is so serious that even a low to moderate risk is unacceptable.
Conclusion as to protection of the Australian community – 8.1 of Direction 99
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[10] The applicant has committed a most serious offence of rape and a low to moderate risk of further offending of that nature is not acceptable. This is a factor that weighs very heavily against revoking the cancellation decision.
[10] Direction 99 at 8.1(1).
Family Violence – 8.2 of Direction 99
There is no suggestion of family violence in the relationship the applicant has with his current wife. However, the applicant was convicted on 15 September 2022 of charges which included stalking his ex-partner, with whom he had a prior relationship for about two years. The charges sheet referred to the applicant ‘calling [his ex-partner] numerous times, attending at her home address and turning her power off with the intention of causing physical or mental harm to the victim, including self harm, or of arousing apprehension or fear in the victim for his or her own safety or the safety of another person’. This conduct would fall within the definition of family violence in Direction 99 because it is behaviour that causes a family member to be fearful and because a family member includes a person who has had an intimate personal relationship with the relevant person. There were also convictions for related charges of contravening a conduct condition of bail and committing an indictable offence whilst on bail. In his written statement, the applicant provided some explanation for the breach of bail involving contact with his ex-partner. He said under cross examination that he was aware that this contact was in breach of his bail conditions but said that it was his ex-partner who requested his assistance or that he had good reason to contact her. The applicant pleaded guilty to these charges and was sentenced to an aggregate of 30 days imprisonment. He said that he had wanted to contest these charges but he was advised to plead guilty. He understands that breaching his bail conditions was foolish and regrets doing so, but generally his evidence does not reflect insight into the harm caused by his conduct.
The seriousness of this offending is reflected in the imposition of a custodial sentence but I take into account that it did not involve any physical violence. It is of concern that the applicant appeared to blame the victim by saying that she pleaded with him to come and help her with an oil leak in her car and that he had lent her money which she never acknowledged. The applicant said that he accepted responsibility for his conduct but his evidence suggested that he did not appreciate the harmful impact on his ex-partner. The Government has serious concerns about conferring the privilege of remaining in Australia on non-citizens who engage in family violence, but I would not characterise his conduct as a serious example of family violence and it was limited to a confined period in February 2022. This conduct weighs against revoking the cancellation decision but in the circumstances I would only give it moderate weight.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 99
This primary consideration provides at paragraph 8.3 of Direction 99:
(1) 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.
(2) In considering a non-citizen's ties to Australia, decision-makers should give more weight to a non-citizen's ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non citizen began offending soon after arriving in Australia.
The applicant has lived in the Australian community since he was 18 years old. He arrived on 21 July 2013 but was detained on Christmas Island and not released into the community until February 2015. Whilst on Christmas Island he showed signs of being a person of good character and he formed a close relationship with his teacher and later his wife. They have provided written statements of support for him and both gave oral evidence at the hearing. They consider the applicant to be a man of great intelligence, integrity and strength of character. They have maintained contact with him even whilst in prison and they will support him in whatever way is necessary if he is released into the community.
Upon his release from Christmas Island, the applicant attended years 11 and 12 at school. He has had a good work ethic and has always been able to find work even whilst studying. He did volunteer work at a hospital in Dandenong and held numerous jobs including in a factory making sandwiches, in the security industry, Woolworths and his own gardening business. He impressed his employers, including one who provided a positive written reference and with whom he has a close relationship. Whilst completing his legal studies at RMIT in Melbourne, he impressed his teaching staff including one lecturer who gave a written statement in support of the applicant. He has made other significant friendships since arriving in Australia. These ties to the Australian community are significant.
In 2020 and 2021 he completed an advanced diploma in legal practice from RMIT University. If released he would like to pursue further studies and become a human rights lawyer.
The applicant met his wife in 2020. She provided a written statement and gave oral evidence through an interpreter. They were married in a religious ceremony on 27 December 2021 and arranged a second wedding on 4 February 2022 with a licenced marriage celebrant. They have a strong love for each other and plan to have a family if he is released. She supports him in full knowledge of his criminal history which he disclosed to her at the beginning of their relationship. He has very strong support and love from his parents in law and his sister in law. His wife and her family will be devastated if he is not released.
I conclude that the applicant has made a significant and commendable contribution to the Australian community through his employment, volunteering, study and connections to family and friends. I take into account the devastating impact on his wife if he is not released. The strength, nature and duration of the applicant’s ties to the Australian community are a factor that weighs significantly in favour of revoking the cancellation decision.
Best interests of minor children – 8.4 of Direction 99
The applicant has no children of his own and there are no children who would be affected by my decision. This factor is neutral in my consideration.
Expectations of the Australian community – 8.5 of Direction 99
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[11] The applicant has failed to obey the laws of Australia and would therefore be expected to be removed from the community. His criminal conduct was very serious and there is an unacceptable risk of further re-offending, but his offending was confined to a limited period during what was otherwise a period of positive contribution. Whilst he has made a significant contribution to the Australian community, the period of that contribution was confined to about seven years after he commenced life in the Australian community aged 18 years.
[11] Direction 99 at 8.5(1).
I conclude that the expectations of the Australian community is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the applicant’s visa, I must also take into account the ‘other considerations’ listed in Direction 99 where relevant, but these are not exhaustive.[12]
[12] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 99
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[13]
[13] Direction 99 at 9.1(2).
The applicant made an application for a protection visa not long after his arrival in Australia. He was granted a visa on 6 August 2018 as he was found to be a refugee on the basis of his Shia religion and Hazara race in Pakistan. In the course of considering that application, the delegate made a protection finding within the meaning of s 197C(5)(a) of the Act.[14] Given that the applicant is covered by a protection finding, the terms of paragraph 9.1.1 of Direction 99 are applicable as follows:
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
[14] See letter from the Department of Home Affairs dated 11 January 2023.
The respondent accepts that protection obligations are owed to the applicant. The respondent made the following uncontentious (and in my view reasonable) submission as to the legal consequences of my decision:
[59] It is accepted that protection obligations have been found to be owed to the applicant, pursuant to s 197C(3) of the Act. This means that once the applicant has completed his prison term, he will be taken into detention and could not be returned to Pakistan as an unlawful non-citizen under s 198 of the Act. It is further accepted that the prospects of finding another country willing to receive the applicant are poor.
[60] It would remain open to the Minister to grant the applicant a visa under s 195A of the Act or to make a residence determination under s 197AB in his favour. At present there would appear to be limited prospects of either of these options being engaged.
[61] The Tribunal should therefore proceed on the basis that the legal consequence of a decision not to find that there is another reason why the visa cancellation decision should be revoked is that the applicant will be taken into immigration detention once his prison term is served, and will remain in detention for an extended period, with no specified end-point.
[62] The respondent accepts that remaining in immigration detention for such an extended period is very likely to adversely affect the applicant’s mental and physical health conditions, and significant weight should be assigned to this ‘other consideration’ in favour of a finding that there is another reason why the visa cancellation decision should be revoked.
The applicant is fearful for his life if he is returned to Pakistan. In his statements, the applicant described the persecution inflicted on him and his family and how that persecution is ongoing. I accept his evidence and his claims of risk of harm and even death.
The consequences of indefinite detention
I now have regard to the legal consequences of a decision to refuse the applicant’s visa,[15] bearing in mind that the applicant is a person covered by a protection finding.
[15] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, 70-71 at [61]; [2016] FCAFC 244.
Sections 197C is relevant:
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1) For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
The respondent acknowledges that a protection finding has been made for the purposes of s 197C(3). Further, none of the circumstances in s 197C(3)(c) have arisen. It follows that unless the applicant requests in writing to be removed to Pakistan, he will remain in detention if I affirm the decision under review.
I refer to WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55, in which Kenny and Mortimer JJ made the following comments which are apposite to this case:[16]
… The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[16] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
There was no evidence before the Tribunal that consideration has been given to removal to another country, nor is there any realistic prospect that the Minister would exercise a personal discretion in favour of the applicant in circumstances where the applicant has had his visa cancelled and the respondent contends that there is an unacceptable risk to the Australian community that the applicant will engage in serious criminal conduct in the future.[17] Having said that, the issue of detention will not arise for some time because the Applicant has another three and a half years of his sentence to serve in prison, subject to the outcome of his appeal and being released on parole.
[17] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [56].
Dr Stevens confirmed that detention would have a very negative impact on his anxiety and depression. Given the adverse impact on his mental health, any further detention of an indefinite nature would have severe consequences adverse to the applicant.
This is a factor that weighs very heavily in favour of revoking the cancellation decision.
Extent of impediments if removed – 9.2 of Direction 99
Direction 99 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Pakistan in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
The applicant is in relatively good physical health, but he has been diagnosed with post-traumatic stress disorder, anxiety and depression, which requires ongoing treatment. If returned to Pakistan it is very likely that his post traumatic stress disorder would be triggered so that his mental health would deteriorate. As set out above he would face the risk of significant harm or even death due to his religion and ethnicity. These are all significant impediments but I give this factor minimal weight because of the protection finding which means he is unlikely to be removed to Pakistan.
Impact on victims – 9.3 of Direction 99
There was no evidence of impact on victims within the meaning of the Direction. This factor is neutral.
Impact on Australian business interests – 9.4 of Direction 99
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION AS TO WHETHER TO REVOKE THE CANCELLATION OF THE VISA
I have considered the specific circumstances relating to the applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.[18] The weighing up exercise in this case is finely balanced.
[18] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [26] and [36]-[38].
The primary considerations of the protection and expectations of the Australian community and family violence weigh against revoking the cancellation decision. The countervailing considerations are the applicant’s ties to Australia, the extent of impediments if removed, the risk of harm if removed and the prospect of indefinite detention. The most significant factors in favour of revoking the cancellation decision are the prospect of indefinite detention and the devastating impact on his wife, but I also take into account that the applicant has made some commendable contributions to the Australian community and that his ongoing detention will be devastating for his friends and his wife’s family.
I consider that, but for the very limited and specific instances of serious criminal offending, the applicant has shown himself to be a person of good character. Despite the trauma of his childhood in Pakistan and being removed from his family and living in a foreign land as a refugee, he has worked and studied hard, engaged in a loving relationship with his wife and made many other strong relationships in Australia. In many ways the applicant is a very impressive person, and he showed his positive attributes in the way that he conducted himself before the Tribunal.
The weighing up exercise is very difficult because on the one hand the applicant has these positive attributes which suggest good character, but on the other hand he has been convicted by a jury of a serious example of rape. Further, I recognise that indefinite detention will have a significantly detrimental impact on the applicant’s health and is a very serious consequence for both the applicant and his wife of a decision to not revoke the cancellation decision. However, it is because of the seriousness of the applicant’s criminal offending, as reflected in the sentencing remarks and the seven year custodial sentence imposed, and the serious harm that would arise if it were repeated, that I have concluded that even a low to moderate risk of the applicant re-offending is unacceptable. I have concluded that the strong countervailing considerations in favour of the applicant are insufficient to outweigh the protection and expectations of the Australian community.
I reach this conclusion by applying the principles in paragraph 5.2 of Direction 99 to the specific circumstances of the applicant, who has been convicted by a jury of the very serious crime of rape. In addition, he was convicted on a guilty plea of offences involving stalking his ex-partner.
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he would be 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.[19] The applicant has not been law-abiding; he has shown disregard for Australia’s law enforcement network by offending whilst on bail; and he has caused serious harm to women in the Australian community.
(b)The applicant, as a non-citizen who has committed serious crimes including domestic violence, should generally expect to forfeit the privilege of staying in Australia.[20]
(c)The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit crimes in Australia which raise serious character concerns.[21] This expectation of the Australian community applies regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
(d)With respect to the level of tolerance of criminal conduct that Australia will generally afford, it cannot be said that the applicant has lived in the Australian community for most of his life or from a very young age.[22] After spending a period in detention on Christmas Island, the applicant was released into the Australian community in or around February 2015 when 18 years old. Four years later, the applicant committed rape on 23 March 2019. The applicant was in the Australian community for about seven years until he was remanded in custody on 24 March 2022. He is now 27 years old.
(e)This is a case where the nature of the applicant’s conduct and the harm that would be caused if it were repeated are so serious that even strong countervailing considerations are insufficient to justify revoking the cancellation decision,[23] The inherent nature of the crime of rape and, to a lesser extent, the family violence crime of stalking, which are crimes mentioned in paragraph 8.5(2) of Direction 99, are so serious that they outweigh any countervailing considerations even if the applicant did not pose a measurable risk of causing physical harm to the Australian community.
[19] Direction 99 at 5.2(1).
[20] Direction 99 at 5.2(2).
[21] Direction 99 at 5.2(3).
[22] Direction 99 at 5.2(5).
[23] Direction 99 at 5.2(6).
It follows from the application of these principles that I am not satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
DECISION
The decision of the Tribunal is to affirm the decision under review.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones
........................[sgd]................................................
Associate
Dated: 18 October 2023
Dates of hearing: 10, 11 & 16 October 2023 Counsel for the Applicant: Nick Boyd-Caine Solicitors for the Applicant: Refugee Advice & Casework Service (Aust) Inc. Advocate for the Respondent: David Brown Solicitors for the Respondent: Australian Government Solicitor
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