LWZB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3687
•21 October 2022
LWZB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3687 (21 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6684
Re:LWZB
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member D. J. Morris
Date:21 October 2022
Date of written reasons: 3 November 2022
Place:Melbourne
Pursuant to s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’), the Tribunal –
(a)set aside the reviewable decision dated 15 August 2022.
(b)in substitution for the decision so set aside, decided that, under s 501CA(4)(b)(ii) of the Migration Act 1958, the mandatory cancellation of the Applicant’s Class BB Subclass 155 Resident Return visa is revoked.
(c)under s 43(5B) of the AAT Act, this decision is not to come into operation until 11.00 a.m. Christmas Island Time on Monday, 24 October 2022.
........................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – citizen of Afghanistan – held global special humanitarian visa – then held resident return visa – visa cancelled under s 501(3A) of Migration Act – dispute about whether visa validly cancelled – new notice of cancellation issued – applicant requested that mandatory cancellation be revoked – delegate decided not to revoke cancellation – review by tribunal – ministerial direction – primary considerations – protection of Australian community – sexually based offences – use of carriage service but no physical contact found – whether family violence conduct – best interests of minor children in Australia – expectations of Australian community – other considerations – preliminary protection assessment – links to Australia – impediments if removed – special consideration of likelihood of prolonged detention – oral decision to set aside decision under review and substitute new decision – operation of decision delayed to enable Respondent to make logistical arrangements – written reasons provided
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33A, 43
Migration Act 1958 (Cth), ss 36, 189, 195A, 196, 197AB, 197C, 198, 499, 500, 501, 501CA
Cases
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174Secondary Materials
American Psychiatric Association; Diagnostic and Statistical Manual of Mental Disorders; 5th Edition (2013)Migration Act 1958 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
3 November 2022
The Applicant in this case, called ‘LWZB’, was born in Afghanistan in 1992. His name is anonymised in these reasons. So will be the names of family members referred to. Where a document refers to him by name, the anonym will be substituted.
LWZB was granted a Global Special Humanitarian (subclass 202) visa in October 2009 as a dependent of his sister. LWZB arrived in Australia in December 2009.
In May 2015, LWZB departed Australia. He returned in September of that year as the holder of a Class BB Subclass 155 Five-Year Resident Return visa. In January 2018, his daughter was born in Australia.
On 2 November 2018, LWZB’s visa was cancelled under s 501(3A) of the Migration Act 1958 (‘the Act’) because a delegate of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’) was satisfied he had failed the character test because of a sexually based offence involving a child and was, at the time of cancellation, serving a full-time prison sentence.
In February 2020, LWZB’s representatives contacted the Department of Home Affairs (‘the Department’) and contended that the Applicant had not received a valid notification of the 2 November 2018 cancellation of his visa.
In February 2021, LWZB applied for a Protection (Class XA) (Subclass 866) visa. On 16 March 2021, a Departmental officer found that LWZB is a person in respect of whom Australia has protection obligations: s 36(2)(a) of the Act.
On 15 December 2021, the Department re-issued a notice of cancellation of the Applicant’s visa, informing LWZB that it was doing so to comply with the requirements identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (‘EPL20’) and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 (‘Sillars’). The Respondent submitted that this decision of 15 December 2021 is the ‘original decision’.
LWZB made representations to the Minister’s delegate in the Department that the mandatory cancellation of his visa be revoked. On 15 August 2022, the delegate decided not to revoke the visa cancellation.
On 18 August 2022, LWZB applied to the Tribunal for a review of that 15 August 2022 decision.
At the conclusion of the hearing on 21 October 2022, the Tribunal made a decision to set aside the reviewable decision and advised the parties that written reasons would be provided as soon as practicable. These are those written reasons.
HEARING
The hearing was held on 19, 20 and 21 October 2022. The Applicant was represented by Mr Andrew McCowan of counsel, instructed by Mr Filip Gelev and Mr Phil Geoghegan of Refugee Legal. The Minister was represented by Ms Kate Ervin, a solicitor of Clayton Utz. The Applicant gave evidence and was cross-examined. Other witnesses who gave evidence were the Applicant’s de facto partner, Ms PO; his sister, Ms HP; his brother-in-law, Mr MP; and Dr Nina Zimmerman, a consultant psychiatrist.
The Tribunal admitted into evidence the documents listed in the annexe to these reasons.
The Tribunal also had regard to a Statement of Facts, Issues and Contentions lodged by the Applicant (‘ASFIC’) and a similar statement lodged by the Respondent (‘RSFIC’).
QUESTIONS BEFORE THE TRIBUNAL
There are two questions for the Tribunal. The first is whether LWZB fails the character test. If the Tribunal is satisfied that he does not, then s 501CA(4)(b)(i) of the Act provides that the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that LWZB does fail the character test, there is a second question: is there ‘another reason’ to revoke the cancellation of his visa (s 501CA(4)(b)(ii) of the Act).
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(e) of the Act provides that a person does not pass the character test if a court in Australia or a foreign country has either convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
The Minister must cancel a visa granted to a person if s 501(6)(e) is satisfied, and the person is serving a sentence of full-time imprisonment in a custodial institution for an offence against the law of the Commonwealth, a State or Territory.
Before the Tribunal was the transcript of a hearing before the County Court of Victoria in late 2017 in which the sentencing Judge refers to LWZB pleading guilty to two charges of using a carriage service to transmit indecent communication to a person under the age of 16 years, contrary to s 471.27(1) of the Commonwealth Criminal Code. For this offence, he received an aggregate sentence of 9 months’ imprisonment but was released on his own recognizance to be of good behaviour for 15 months.
In early October 2018, LWZB was convicted before the Magistrates’ Court of Victoria of the offence of Contravene Community Corrections Order (‘CCO’). He was sentenced to one months’ imprisonment. His visa was cancelled on 2 November 2018 while he was serving this sentence of full-time imprisonment. Therefore, the provisions of s 501(3A)(b) of the Act are satisfied.
The Applicant conceded that he does not pass the character test (ASFIC, paragraph 35). The Tribunal finds that the offences of which LWZB was convicted in 2017 both fulfil the requirements of being a ‘sexually based offence involving a child’, as set out in s 501(6)(e) of the Act.
The Respondent contended that LWZB had a ‘substantial criminal record’ under s 501(3A) of the Act. At the commencement of the hearing, the Tribunal queried this contention, and Ms Ervin advised that this was an error. The Tribunal notes that a ‘substantial criminal record’ requires one of these provisions to be met: s 501(7)(a) – the person has been sentenced to death; s 501(7)(b) – the person has been sentenced to imprisonment for life; or s 501(7)(c) – the person has been sentenced to a term of imprisonment for 12 months or more. None of these provisions is relevant to LWZB. Notably, the provision relating to a person failing the character test includes, at s 501(7)(d), where a person has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. LWZB meets this. But that does not translate into a ‘substantial criminal record’ for the purpose of s 501(3A)(a)(i) of the Act.
Finding on the character test
The Tribunal is satisfied based on this evidence that LWZB does not pass the character test and, because the provisions of ss 501(3A)(a)(ii) and (b) were met, the delegate of the Minister was required to cancel his visa by operation of law.
IS THERE ANOTHER REASON TO REVOKE THE VISA CANCELLATION?
Section 501CA(4)(b)(ii) of the Act provides that the Minister (or, in this case, the Tribunal standing in his shoes) may revoke the original decision if satisfied that there is ‘another reason why the original decision should be revoked’.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must comply with a relevant direction under s 499(2) of the Act.
On 8 March 2021, the (then) Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a direction under s 499, Direction No. 90 (‘the Direction’). The Direction commenced on 15 April 2021.
The Tribunal must have regard to the contents of the Direction in considering whether there is “another reason” to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not confine the Tribunal’s task; it must look at any other relevant factors in the circumstances of the case. The Tribunal must consider the primary and other considerations in the Direction as relevant to the Applicant’s personal circumstances and his offending history.
PRIMARY CONSIDERATIONS
Primary consideration: Protection of the Australian community (paragraph 8.1)
Paragraph 8.1(2) of the Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct and 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 conduct
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence.
LWZB has committed sexual crimes against a female child. The circumstances of the offending were set out in the remarks of the sentencing Judge in the County Court. LWZB was between 21 and 22 years old at the time of the offence. The complainant was 15 and was due to turn 16 in two weeks after the conclusion of the offending.
At the time of the offending, the complainant was classified as a vulnerable young person, resident in a community residential unit and connected with the State Department of Health and Human Services.
LWZB first connected with the victim via ‘Facebook’ in the fourth quarter of 2013. They then had intermittent contact until February 2014. In October 2013, the complainant sent a message to the Applicant requesting ‘nudes’. LWZB responded by asking for her number and saying he would pick her up, and they would have sexual intercourse. The complainant wanted LWZB to send her a naked picture before she would divulge her phone number. The Applicant then sent her a photograph of a penis and again requested her number.
Further exchanges occurred, including a clear intention by the Applicant to engage in sexual congress. They arranged to meet. The Judge said it was unclear what happened next, but LWZB told the police the victim did not turn up. There was no communication until November 2013, when the Applicant sent two messages. Some days later, the complainant contacted the Applicant. They discussed meeting - this founded charge one on the indictment.
Charge two related to further messaging in February 2014. They exchanged various messages about meeting up, and then an exchange occurred that the Judge said was essentially about “F---g hard”. Her Honour stated that it appears the victim was ‘a fairly willing participant’ in this exchange of messages. The complainant then contacted the Applicant four times, but he missed the calls. When he returned a message, the complainant asked him to pick her up and provided her address. The Judge did not say whether a meeting took place.
There were further messages a few days later in which the complainant asked LWZB to meet her at a pizza shop. He said he could not. There were further exchanges of messages.
The police initiated an investigation and arrested the Applicant in February 2015. LWZB made admissions that he knew the complainant, having met her on Facebook, had communicated with her and had met her at a pizza shop on one occasion. LWZB told the police he did not know the complainant’s age and admitted that he had, on one occasion, sent her an image of a penis.
The Judge then discussed the Applicant’s personal background and said she was satisfied he was not a person with alcohol or drug problems but did believe he might have some psychological problems arising from his difficult childhood. The Judge noted that LWZB was living with his sister and brother-in-law and essentially that she regarded his prospects of rehabilitation with some optimism.
Her Honour decided a term of imprisonment was not required. She accepted LWZB “probably did not appreciate how relatively young the complainant was”. The Judge accepted that the complainant was a vulnerable young woman who probably presented as more sexually mature than she was. However, Her Honour made clear that with girls under the age of 16, it does not matter if they agree or do not agree – they are felt to be too young to make sensible decisions about sexual activity; “The law says the older man is responsible in this situation.”
Her Honour went on to say she felt the age gap between LWZB and the complainant was ‘relatively small’ and that this was not classic predatory behaviour as the Applicant did not seek her out sexually; she approached him. However, the Judge made clear that was no excuse. The Judge said the offending was at the lower end of seriousness of offending of this kind.
The Applicant was sentenced to six months’ imprisonment on each charge, the first period commencing in October 2017 and the second period commencing in January 2018, giving a total effective sentence of nine months. Her Honour ordered that LWZB be immediately released on a 15-month good behaviour bond, with a surety of $1,000.
The Judge decided that LWZB need not undertake a sex offender programme as she determined that there was no predatory behaviour or interest in underage children that would warrant such an order. The Judge noted that the law required that the Applicant be placed on the Register of Sex Offenders for a period of 15 years (because there were two offences).
Other offending
LWZB has been before Australian Courts on six other occasions. In late 2014, he was before the Magistrates’ Court of Victoria convicted of the offences of Use unregistered motor vehicle on a highway; Learner driver driving a vehicle without an experienced driver; Drive without ‘L’ plates displayed. For these three offences, he was fined $750. On the same day, he was convicted of the offences of State False Name and Fail to answer bail (two charges); Drive whilst authorisation suspended (two charges); Exceed prescribed concentration – drive vehicle. For these offences, he was given a CCO for 12 months to perform 200 hours of community service. His driver’s licence was cancelled, and he was disqualified from driving for seven years.
In January 2016, he was before the Magistrates’ Court and convicted of breaching the CCO imposed in 2014. The charge of Contravene CCO was found proven. The CCO was cancelled, and a new CCO was imposed for three months to perform 30 hours of unpaid community service.
In August 2017, LWZB was back before the Magistrates’ Court. He was found to have breached the CCO, and the Order was varied that he performs 150 hours of unpaid community work.
In October 2017, he was before the County Court of Victoria and convicted of the two Commonwealth offences referred to earlier, which triggered the cancellation of his visa.
In March 2018, LWZB was before the Magistrates’ Court and convicted of the offence of Drive whilst disqualified. A CCO was imposed for six months to perform 30 hours of unpaid community service.
In October 2018, LWZB returned to the Magistrates’ Court. This time two charges of Contravene CCO were found proven, and he was sentenced to one-month imprisonment for each, to be served concurrently. He was also convicted of the offence of Fail to comply with reporting obligations (three charges) and Furnish False/Misleading Information in reporting obligations. For these four offences, he was fined a total of $1,500.
In March 2019, LWZB was before the Magistrates’ Court and convicted of the offences of Unlawful assault; Use threatening words in a public place; Drive whilst disqualified; Drive in a manner dangerous. For these offences, he was given a CCO for 18 months, his licence was cancelled, and he was disqualified from driving for 12 months. He was ordered to pay an aggregate of $8,705.
Paragraph 8.1.1(1)(a) declares that violent and/or sexual crimes are regarded very seriously by the Australian Government. The two offences which triggered the visa cancellation undoubtedly fit into the category of sexual crimes, but not violent crimes, given the offences were based on the use of telecommunications, not physical contact.
Paragraph 8.1.1(1)(c) requires the Tribunal to consider the sentence imposed for a crime. LWZB has generally been treated leniently by the Courts, with a succession of CCOs. That he has frequently breached those CCOs indicates a willingness not to comply with orders of the Court. The submissions on behalf of LWZB rightly stated that he has only himself to blame for these breaches (GD, p 151). Those breaches were such that they eventually led to the Magistrate imposing a one-month gaol sentence. In response to direct questions from the Tribunal, LWZB agreed that the Court became exasperated with his failure to adhere to conditions under CCOs, which is when the short gaol sentence was imposed.
The Tribunal must also consider the frequency of offending and the cumulative effect of repeat offending. Putting the Commonwealth offences to one side, the Applicant has a history of driving offences since 2014 and a relatively regular history of failing to comply with orders of the Court. In his oral evidence, the Applicant said he knew he was doing wrong and should have taken things more seriously and obeyed the law. He said he realises now that the laws are there for a reason but could not see that at the time and was ‘stupid’. Asked specifically about his breaches of bail conditions and CCOs, LWZB said: “I think I was reckless. I didn’t take these things seriously.”
Paragraph 8.1.1(1)(f) requires the Tribunal to take into account whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The Tribunal notes that the Applicant did not correctly complete the Incoming passenger card in 2015 when he was returning to Australia from Afghanistan (GD, pp 242-243). He declared that he did not have any criminal convictions. At the time, he had committed driving offences and an offence for stating a false name. The Applicant told the Department that he was illiterate and did not realise that he had to disclose offences which did not result in a term of imprisonment. The Respondent did not raise this issue in oral submissions. The Tribunal notes it was regrettable but accepts the submission that LWZB’s illiteracy was the cause of the incorrect declaration, and that he did not intentionally mislead the Department.
Paragraph 8.1.1(1)(g) relates to whether the non-citizen has re-offended since being warned or otherwise made aware of the potential consequences to his migration status. There was no evidence before the Tribunal of any previous warning.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The Direction states that decision-makers (including the Tribunal) should 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. The Direction states that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
LWZB’s offending can be essentially divided into two categories: a series of driving offences and related unwillingness to comply with the sanctions imposed by the Courts and the sexual offences.
When asked by his counsel about the sexually based offences of which he was convicted in October 2017, LWZB said:
The sentence was right. I did the wrong thing. But it was not my intention. It was just a mistake I made. At the time I couldn’t speak English well. I didn’t know the difference between decent and indecent talks. What I did was indecent. I wish I could go back and undo it, but I can’t. I feel ashamed.
Under cross-examination, LWZB was asked about a statement he made (GD, p 121) in which he said he thought the complainant was 19 years old. He said: “When we met, she didn’t look 15 or 16. I thought she was older. She could be 19, could be 20. She was drinking, hanging out with older people around my age. She seemed older.”
Ms Ervin asked LWZB what would stop him doing this again. He responded:
I have learnt a lot in the past. I am committed to my wife. I am committed to looking after [my daughter]. This event taught me when I speak to someone, I have to know their age, and it has to be a respectful conversation.
LWZB was asked about some incidents in immigration detention in 2019. He was first asked about an incident report in August of that year (GD, p 221), where he elbowed a fellow detainee and then struck him. He was asked if the report was accurate. The Applicant said the report was accurate but only about the altercation, not the lead up. He said he was preparing noodles in a microwave, and another detainee wanted to use the oven. He said words were exchanged, and the other detainee followed him, swore at him, and attacked him. He said: “I got angry and attacked him back. I have no excuse. I should have been the bigger man. I hadn’t done the anger management course at that time. I should have been smarter.”
The Applicant was asked about an earlier incident in March 2019 (GD, p 225), which reported escalating behaviour between him and another detainee. LWZB agreed the report was accurate. He said: “What it doesn’t say is that I was getting bullied by this person. I just wanted him to get off my back. I had to react.”
Ms Ervin asked LWZB about an earlier incident in January 2019 where LWZB threw a remote control at a fellow detainee, and whether the report was accurate. He responded:
Yes. That is the same guy who was bullying me. He didn’t stop. He touched me on the bottom as I went past. I got angry and attacked him and should have been the better man and walked away. I hadn’t done the anger management course. I didn’t know better.
Ms Ervin then asked LWZB about the group of offences in the community for which he was convicted in March 2019, including unlawful assault, using threatening words and driving whilst disqualified. LWZB said the offences were all related to a dispute he had one day with the then partner of Ms PO’s mother. He said: “I was not the aggressor. I remember confirming to police I did threaten [name redacted]. I drove without a licence to get out of the situation. I was getting attacked by him. I did lose control of my car, but my intentions weren’t to harm him.”
In answer to direct questions from the Tribunal, LWZB said he pleaded guilty to the charges in Court. He confirmed that the man was no longer the partner of Ms PO’s mother.
Consideration
Dealing first with the group of offences for which LWZB was convicted in March 2019, the Tribunal considers these an isolated incident. Apart from the one conviction for unlawful assault, there is no other crime of violence in the criminal record. The Tribunal accepts on the evidence and the papers before it that an argument erupted between the Applicant and the then partner of Ms PO’s mother. While the Tribunal does not necessarily accept LWZB’s assertion that the other party was the aggressor, this seemed to be an altercation that was inflamed by a family argument and not generally indicative of the Applicant’s conduct. However, his explanation that he drove ‘to get away from the situation’ when he knew he did not have a driver licence, while perhaps honest, is completely unsatisfactory. LWZB had already been before the Courts on driving offences, including driving whilst disqualified, and his continuing this sort of conduct is reckless and shows scant regard for the law.
In terms of the other offending, the driving offences are (a) not good, and (b) there are too many of them for someone with a limited driving history, like LWZB. But, more critically for the Tribunal is the Applicant’s unwillingness to accept conditions of bail and CCOs, which has led him back to the Courts several times. As mentioned above, the Magistrates showed tolerance until that tolerance was exhausted, and he received a custodial sentence. It was this custodial sentence that directly led to the cancellation of his visa.
In regard to the Commonwealth offences, the Tribunal must have regard both for the Direction and also the sentencing Judge’s remarks. The Direction requires that I treat any sexually based offence involving a child as serious. On the range of this type of offending, however, the prosecution summary referred to by the sentencing Judge stated that these particular telecommunications offences are ‘at the lower end of seriousness of offending of this kind’. I agree. While it is unarguable that they fulfil the general category of sexually based offending involving a child in the Act and the Direction, the offending conduct involved no physical contact.
The Judge accepted that LWZB did not realize at the time of his offending that the complainant was under the age of 16. The Judge also accepted that the Applicant was not predatory in this behaviour in that he did not seek out the complainant for sexual behaviour. Her Honour noted that the offending conduct ceased prior to police intervention around two weeks before the complainant turned 16. Her Honour noted that the age differential between the Applicant and the complainant at the time was, in her words, ‘relatively small’ (GD, p 53).
The Judge decided it was not necessary for LWZB to participate in a sex offenders treatment programme and expressly said there was no sign of deviant attraction to underage children (GD, p 55).
The Applicant’s evidence was that it was when he was in prison, he learned that Ms PO was pregnant. He said the birth of their daughter has completely changed his attitude and that he would not want his daughter to be subject to the sort of graphic conversation he engaged in with the complainant.
Dr Zimmerman examined the Applicant on 8 April 2022 in order to provide a psychiatric report to his solicitors for LWZB’s application for a protection visa. Her report dated 18 April 2022 was before the Tribunal (GD, pp 169-202).
Dr Zimmerman’s professional opinion was that LWZB has a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’), as defined under the Diagnostic and Statistical Manual of Mental Disorders, 5th Edition. Her opinion was that the Applicant has current, active symptoms of PTSD, occasioned by serious and repeated trauma and exposure to violence he experienced as a child. She opined that his PTSD is aggravated by his current environment (i.e., in detention at the Christmas Island Immigration Detention Centre (‘IDC’)). She said that the Applicant has a past history of alcohol and cannabis use disorder, currently in remission.
The Applicant, in his oral evidence, said that at one time, he drank ‘four cans’ (of beer) a day, but he cut back in 2013 except for what he said was the occasional drink with Ms PO and her parents at family celebrations. He said he had not taken alcohol at all since around 2016 or 2017.
Dr Zimmerman had access to a psychological report made soon after LWZB’s convictions for the sexually based offences and other clinical notes from the IDC and concluded that LWZB met the criteria for Major Depression at that time, but that subsequently resolved. She noted that IHMS, who provide medical services at the IDCs, has consistently recorded the Applicant having low mood and associated sleep disturbance.
Dr Zimmerman assessed LWZB under the Risk for Sexual Violence Protocol (‘RSVP’) and applied the five domains therein. In terms of the first domain, which relates to psychological coercion, she noted there was no evidence of escalation or physical violence but partial evidence of past psychological coercion because of the power imbalance between the Applicant and the victim. In terms of the second domain, which relates to psychological adjustment, Dr Zimmerman noted there was no evidence of attitudes that would support sexual violence or problems of self-awareness. The third domain relates to mental disorder. Dr Zimmerman concluded there was no evidence of sexual deviance or dissocial/psychopathic behaviour. The fourth domain relates to manageability. Dr Zimmerman noted breaches of the CCO conditions. She relevantly concluded:
Given the presence of risk factors across all domains of the RSVP, the small number of factors in each domain, the limited relevance to his sex offending of many factors, based on his presentation on interview with me, in conjunction with a range of materials available to me, it is my opinion that he presents an extremely low risk of future sex offending.
(Emphasis in original.)
Dr Zimmerman also considered the risk of general offending by LWZB against a member of the Australian community. She said:
As well as addressing the risk of sexual recidivism, you have asked me to consider the risk of offending (non-sexual) against a member of the Australian community. LWZB has a history of driving and breach offending. None involved physical harm to any member of the community although his drink-driving offence carried the risk of harm to others. He has a single assault conviction that occurred in the context of an ongoing acrimonious relationship with his mother-in-law’s boyfriend at the time (no longer around).
…
LWZB’s driving offences led to the imposition of CCOs which he subsequently repeatedly breached. These breaches appear to be in part related to driving when suspended and unable to attend work/appointments and partly due to a failure to appreciate the seriousness of breaching Orders. In light of the consequences of these behaviours, I believe that his motivation to avoid falling foul of the law again will be substantially elevated.
I believe that the risk of LWZB offending against a member of the Australian community in the future is low. I note that he has not used cannabis or alcohol for some years, is actively attempting to engage with counselling, has completed an anger management course and drug and alcohol course whilst in detention and has matured since the initial drink-driving offence.
(Emphasis in original.)
Mr McCowan asked Dr Zimmerman about her conclusion that the Applicant was at an ‘extremely low risk’ of future sex offending. Dr Zimmerman said this opinion was based on her assessment of the five domains in the RSVP measuring tool. In her oral evidence, Dr Zimmerman said the assessor looks at guiding future interventions, and she concluded there was no need for any intervention, such as a treatment programme, for example.
Dr Zimmerman said that LWZB was remorseful when she examined him. She said the Applicant talked about his shame and embarrassment and was inciteful about the complainant. In response to a direct question from the Tribunal, Dr Zimmerman said that LWZB became aware later, not at the time of the offences, that the complainant was in State care (and therefore in the category of a more vulnerable person). She said the fact of a supportive partner in Ms PO and a daughter are both strong protective factors.
Dr Zimmerman was asked about the incidents in detention. She was of the view that all were minor on the incident notes she had seen and that there had been no physicality since 2019.
The Respondent did not cross-examine Dr Zimmerman.
In regard to the incidents in detention in 2019 that LWZB was questioned about, the Tribunal notes that they did not lead to any charges or other apparent sanctions. They are now three years old, and while they are to be depreciated, the Tribunal does not place great weight on such matters unless there is particularly serious conduct or a sustained pattern of violence or antisocial activity by a detainee or prisoner. There is no evidence of this in relation to the Applicant.
The Tribunal considers that the nature of harm to individuals or to the Australian community should the Applicant engage in further criminal or serious conduct is that other road users might be placed at risk, which is something that should not be regarded lightly if LWZB continues to flout driving laws or drive without a licence. The Tribunal considers the likelihood of LWZB engaging in the conduct that led to the Commonwealth offences is negligible. He is older, in a relationship that has apparently stabilised, and has become a father. In addition, because of the operation of law, he was placed on the Register of Sex Offenders for 15 years from October 2017. The Judge made the point that she imposed this requirement only because she was required to by law. She did not consider that the usual characteristics of a sex offender were present in the Applicant. Nonetheless, the strict requirements of the Register mean that LWZB must report any employment, where he lives, the details of any vehicle he drives and any contact he has with children for the next decade. This is a significant protective factor against any return to any like conduct, even though the Tribunal concludes that the likelihood is negligible.
Overall, the Tribunal finds that this primary consideration weighs only very slightly against revoking the cancellation of the visa.
Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)
The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.
An interim domestic violence order (‘IVO’) was made in October 2018 to protect the Applicant’s partner and daughter from the Applicant. Ms PO says that this IVO was made at the request of the police and the State Department of Health and Human Services due to concerns about Muslim people holding sexist and fundamentalist views, but that LWZB does not hold those views, and she does not consider herself to be at risk of family violence.
In the summary the police provided for the Court to obtain the IVO, it was stated (GD, p 381):
The AFM [Affected Family Member, Ms PO] and Respondent [LWZB] are ex partners and have an infant child together. There is currently an active full IVO between the Respondent and the child and DHHS Child Protections are involved with the family. The IVO for [the] child was taken out by DHHS in order to protect the child who is in full time care of the AFM. There is a history of unreported FV that the AFM has disclosed to DHHS and external referral agencies such as WAYSS. The Respondent has previously committed FV against the AFM and also the family member’s [sic] she lives with. The Respondent has also breached his obligations as a registered sex offender and has charges pending for same. Police hold concerns for the safety of the AFM due to escalating behaviour displayed by the Respondent. There is currently an active IVO protecting the child and police believe the AFM requires the same conditions.
The IVO says that the matter was listed for hearing in Court in January 2019. However, there is no reference in the nationally coordinated criminal history check dated January 2022 (GD, pp 37-39) of any such appearance. The ASFIC contended that LWZB denies committing family violence against Ms PO or anyone else and notes that the police, not Ms PO, took out the IVO.
In his oral evidence, LWZB said he remembered the IVO being issued and said he was not allowed to speak to Ms PO, his daughter, Ms PO’s mother and her then partner, or go close to them, but that he was by then in immigration detention in any event. (This is corroborated by a Victoria police LEAP report at SMD, p 12.). He told the Tribunal that he did not understand why the IVO extended to Ms PO or their child. He said that the terms of the IVO prevented Ms PO and their daughter from visiting him while he was in immigration detention in Melbourne, and he was then transferred to and IDC in Western Australia and thence to Christmas Island.
In terms of the one conviction for assault, the ASFIC submits that this was for LWZB assaulting a man who was at the time in a relationship with Ms PO’s mother. The Tribunal does not consider that this falls within the scope of this primary consideration. There is no evidence of a familial relationship between the Applicant and this person, nor that they lived together in any family-like context.
In answer to direct questions from the Tribunal, LWZB admitted there were occasions early in their relationship which were stormy, which accords with Ms PO’s own statement that they had their ‘ups and downs’ and that the police had been involved. That the relationship was tumultuous and there were at least two occasions where the police were called is corroborated by Victoria police LEAP reports at SMD, pp 21, 25 and 26. On the first occasion, it was LWZB who called the police. On the second two occasions, it appears to have been Ms PO. However, there was no evidence of any charges being laid as a result.
The ASFIC submitted that the delegate found there was insufficient evidence to find that LWZB has committed family violence against Ms PO or his child (who will be called ‘XB’) in terms of this part of the Direction.
Overall, on the material before me, the Tribunal does not find that this primary consideration is relevant. There is no evidence of any offences that could be categorised as domestic violence offences in the terms of paragraph 8.2(2)(a) and insufficient evidence to make any finding that LWZB has perpetuated, or been involved in the perpetuation of, family violence in terms of paragraph 8.2(2)(b) of the Direction.
This primary consideration, therefore, weighs neutrally.
Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors set out in paragraph 8.3(4) of the Direction, where relevant. These include whether the Applicant has a parental relationship with the children, the extent to which he is likely to play a positive role, the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Applicant is the father of one minor child, XB. His partner, Ms PO, is XB’s mother and XB lives with her. XB was born in January 2018. The Applicant’s sister Ms HP and her husband, Mr MP, have three boys: SP, who was born in 2010 and is aged 12; FP, who was born in 2012 and is 10; and AP, who was born in 2018 and is four.
The Tribunal considers that different determinations should be made in relation to LWZB’s daughter and his three nephews.
Child XB
Ms PO wrote in her statement that she had known LWZB for ten years after they met through mutual friends. They formed a romantic relationship in 2014 and married, she advises in a religious ceremony in September 2017, but that marriage has not yet been solemnised under Australian law. Ms PO told the Tribunal the details of the traditional Islamic ceremony and said it was their intention to then be married under the Marriage Act, but she became pregnant, so they deferred it. XB was born a year after they married.
Ms PO noted in her statement that XB had not seen her father in person since she was eight months old. They maintain contact by telephone and video calls. She says that XB, who now attends kindergarten, periodically asks her where her father is. Ms PO wrote:
I feel like XB is missing out a lot in life with LWZB not being here. She could have a real relationship with her dad and a better, more fulfilled life with him around. She adores her dad and wants LWZB home badly.
Later in her statement, Ms PO states:
I lastly want to address the ups and downs in our relationship. The police have been involved a few times. There is no chance it is going to continue into the future. LWZB and I have both grown up. We want to begin a normal and happy life, with more kids and a happy marriage. What has happened in the past is not going to happen again.
LWZB has missed out on the most important years of XB’s life and it is incomprehensible. He has definitely learned his lesson. I know that if he is released that he would work really hard to provide for XB and me. We miss him.
The Applicant said that he speaks on a daily basis to Ms PO by telephone, and each night by video link. He said that XB is now old enough that she sometimes dials the phone, and when he answers, he expects to hear the voice of Ms PO, but it is his daughter.
Ms PO, in her evidence, said he speaks to her every day and on these occasions to his daughter as well, unless she is asleep. She said her daughter recognises the Applicant as her father and asks her when he will be coming home.
The Tribunal notes that when he was at the Yongah Hill IDC, LWZB said he did a ‘Fathering Group’ course for two months, where he said there were modules on how to encourage, support, love and provide for your children. He said: “XB is my first priority.”
The Tribunal is satisfied that it would be in the best interests of XB that LWZB’s visa is restored and makes that determination. Accepting that he has been incarcerated for most of her life, the evidence is that a relationship – albeit not in-person – has been maintained, and the tenor of the Applicant’s evidence was all focussed on him wanting to be a provider and father to his partner and daughter.
Applicant’s nephews
LWZB has three nephews, the sons of his sister Ms HP and her husband, Mr MP. As mentioned above, they are SP, aged 12; FP, aged 10; and AP, who is four. There was a fourth nephew, YP who the Applicant advised sadly died two years after his mother arrived in Australia.
The Applicant’s evidence was that he has contact with his oldest nephew, SP, independently of SP’s parents because he has his own phone and sometimes texts or rings his uncle. The next oldest, FP, has a degenerative medical condition, and the Applicant said he has declined from being able to walk to now being in a wheelchair. LWZB said that this makes even simple tasks, such as putting FP into a car and taking him to the doctor, difficult for his sister. He said his sister also struggles with English and would benefit if he was there to translate when she, for instance, went to see a doctor. In answer to a direct question from the Tribunal, Ms HP explained that FP’s disability is physical, and not cognitive, and that he has always maintained a loving relationship with his uncle.
The evidence of Ms HP and Mr MP was consistent that LWZB was a loving uncle to their three sons. He lived with them and their children for a period, and Ms HP said he particularly helped her with FP as his health declined. They both noted that their youngest, AP, was very young when LWZB went into prison and then into detention. He did meet AP when he was an infant, but Ms HP said AP does not really know LWZB because of his young age. Ms HP confirmed that her oldest son frequently talks to the Applicant on his own phone of his own volition.
The Tribunal accepts that it would be in the best interests of the Applicant’s nephews, especially FB if LWZB was able to stay in Australia. There is evidence that, before he was placed in custody, he did regularly assist his sister and brother-in-law. However, the Applicant does not play a parental role in their lives – their parents fulfil that role.
For completeness, the Tribunal notes the finding of the Court that the Applicant did not have a sexual interest in children, and so this is not a concern in evaluating this part of the Direction.
Overall, the Tribunal finds, because of the best interests of the child XB (and to a lesser extent his three nephews), that this primary consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Primary consideration: Expectations of the Australian Community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
(1) 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 enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
…
The expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. An old version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker may derive by some other evaluative process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are ‘deemed’ to weigh against an applicant, the relative weight will be affected by circumstances in the individual case.
LWZB has committed a string of offences, notably several driving offences. Some of these, by themselves, are serious. But the seriousness is compounded by the clear evidence in his criminal record that LWZB has been apparently dismissive of orders successively imposed by the Court, which were designed to help him not re-offend. Frustration by the Magistrates’ Court at the persistent breaches led to the imposition of a one-month prison term. This shows a worrying disregard for authority.
In terms of the two sexual offences, they do LWZB no credit whatsoever. He was willing to enter into a sexually charged exchange and send lewd images to a young woman. The Court accepted that he may not have known that she was below the age of 16 at the time, but equally, he did not make any efforts to try and ascertain her age. The offending occurred in 2013 and 2014 when the Applicant was aged around 21. He was, therefore, old enough to know better. In addition, the victim was a person who was inherently vulnerable, living in state care – although it is not clear from the sentencing remarks that LWZB knew that, and Mr McCowan said he learned that later. The sentencing Judge made two important points in the County Court – that LWZB was not predatory in this offending and that he was unconscious of the girl’s age at the time of the offending. It was also noted that it was the complainant who encouraged the Applicant to send her the lewd image. There was no element of grooming. The Applicant nonetheless pleaded guilty, which means he accepted all the elements of the offences for which he was charged. All of these factors influenced the relatively light sentence imposed.
The Tribunal concludes that this primary consideration supports affirming the decision under review, but the weight attached to that is not as heavy as it would be if the circumstances of the triggering offending were different.
OTHER CONSIDERATIONS
Other consideration: International non-refoulement obligations (paragraph 9.1)
The Direction states that 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. It goes on to say that Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (i.e., the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (‘the ICCPR’). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, the Direction exhorts decision-makers to follow the tests enunciated in the Act.
LWZB is Hazara and Shi’a Muslim in terms of his religion. In his evidence, he told the Tribunal that he cannot remember his father but has been told he died when the Applicant was aged two. He said he remembers his mother ‘a little bit’ but she died when he was aged around six or seven.
LWZB said he lived on the streets after his mother died, begging, or scavenging for food with other displaced children. When he was aged about eight, he said he met a man who said he had known his parents, and he was taken by this man and various modes of transport to Pakistan. He said he stayed with this person and his family for six or seven years. Once he got to Pakistan, LWZB was put to work weaving carpets, which he said he now realizes was their plan all along. Some of the man’s own children were put to the same work.
He said he was treated like a labourer. While they gave him three meals a day, he said he was made to work 14 hours a day for six days a week and slapped around the head if his work rate slackened. One day, he said the family sent him to get some bread. As he was returning home, a woman saw him and addressed him by name. She said she was his sister. He told the Tribunal he had not known that he had a sister. He said that his sister, Ms HP, then took him in. He continued to work weaving carpets, but said the hours were much less onerous, and he gradually learned he could trust his sister and that she loved him.
LWZB lived with his sister until she came to Australia, sponsored by her husband, Mr MP, and the Applicant was sponsored as a dependant on his sister’s Global Special Humanitarian (subclass 202) visa.
The Applicant told the Tribunal that he has no family in Afghanistan. When asked whether he thought it was possible for him to return, he responded: “I don’t think I would survive there. I am Hazara and Shi’a by religion. We are hated over there. They are paid money if they can say they have killed a Shi’a person.”
Before the Tribunal was a document titled ‘Protection Visa Assessment’ dated 16 March 2021 (GD, pp 321-341), completed by an officer of the Minister’s Department. The officer made various findings, including that LWZB faces a real chance of persecution for the purposes of s 5J(1)(a) in the receiving country, that is, Afghanistan, and that it applies to all areas of the receiving country (s 5J(1)(c) of the Act).
The officer of the Department considered the fact that LWZB returned voluntarily to Afghanistan for three months in 2015. He noted that the Applicant said he was very stressed at the time due to his criminal charges and was unaware of just how dangerous Afghanistan has become. The Tribunal notes in his statements that he went to visit a friend there who was unwell, and then came to realize that the friend only wanted money from him to support his own drug addiction.
I agree with the officer that this return for three months, unwise as it was, does not preclude a finding that the Applicant has a subjective fear of harm if returned to Afghanistan now or in the reasonably foreseeable future.
The Applicant departed Afghanistan aged around eight, after what can objectively be described as a desolate childhood. Since that time and since his brief return in 2015, the situation in that country has markedly deteriorated, especially since the resumption of Taliban control in 2021.
Ms Ervin submitted that the Departmental assessment was a preliminary one, and no protection visa has been granted. The Tribunal accepts that but finds that the international non-refoulement obligations that Australia owes by virtue of being a signatory to the Refugees Convention are undoubtedly invoked in this case. The officer has carefully gone through LWZB’s claims against the legislative requirements in s 36(2)(a) of the Act and has made what I consider to be considered findings. I agree with Mr McCowan that this may be distinguishable from the non-citizen in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, where no such preliminary protection assessment had been made.
Accordingly, this other consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Other consideration: Extent of impediments if removed (paragraph 9.2)
The Direction requires decision-makers to consider the extent of impediments a non-citizen may face if removed from Australia to their home country in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of the country. The Tribunal must consider the Applicant’s age and health; any substantial language or cultural barriers; and social, medical, and/or economic support available to him if repatriated.
On Dr Zimmerman’s assessment, the Applicant has a relapsing diagnosis of PTSD and a depressive condition that is in remission. There was no evidence that LWZB was not otherwise physically healthy. He is a young man, now aged 30, and fluent in several languages. He has been back to Afghanistan for a three-month visit. The Tribunal considers that he would not face insurmountable cultural barriers if he was repatriated.
However, he would have no economic or social support if he was returned to Afghanistan. He was orphaned at a young age and has no known relatives left in Afghanistan. It is not too hyperbolic to say that the country is currently bordering on being a failed State in the thrall of a regime that Australia does not yet recognise. It is a febrile, violent, and apparently intractable political environment, magnified since the fall of Kabul in August 2021 and the taking into control of the country by the Taliban.
The Applicant’s latent mental health conditions would undoubtedly be exacerbated if he was returned to that country, and, on her own statement, there is no prospect that Ms PO or their daughter could join him there.
The Tribunal finds that this consideration weighs very heavily in support of the revocation of the cancellation of LWZB’s visa.
Other consideration: Impact on victims (paragraph 9.3)
The Tribunal interprets this part of the Direction as meaning evidence of the impact on a victim of a non-citizen’s offending in a case where the victim has knowledge of the migration implications for the non-citizen. There is no such evidence before the Tribunal, so this consideration weighs neutrally.
Other consideration: Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia
The Tribunal 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 the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community.
LWZB’s parents are deceased. His only sibling is his sister, Ms HP, who lives in Australia. His only other family are his brother-in-law, Mr MP, their three sons, his partner, Ms PO, and their daughter.
The Applicant has a relatively creditable employment history. He told the Tribunal that he worked for a factory that makes heaters for some months, operating a punching machine. He then worked for three or four years for his brother-in-law, doing rendering work. He then worked for another employer as a renderer for eight to ten months. After a short break, he resumed working for his brother-in-law. He told the Tribunal there was a period where he relied on Centrelink benefits. He worked for Mr MP until he went to prison in October 2018.
The Applicant told the Tribunal that he is fluent in Dari, Hindi, Farsi, and English and has a passable knowledge of Pashto. He confirmed that he has ambitions to train as an interpreter but agreed with the Tribunal that he would need to improve his literacy skills to do this. To that end, LWZB said he has been undertaking English language courses at the Christmas Island IDC, called ‘English club’ but that these have been intermittent, depending on the availability of the tutor on the island.
Sub-consideration: Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA would significantly compromise the delivery of a major project or important service in Australia.
I consider that none of the employment that the Applicant has mentioned, outlined above, rises to the level contemplated in this part of the Direction.
Overall, the Tribunal finds that this consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa. The Applicant has no family other than those in Australia, he has endeavoured to make a positive contribution to this country – notwithstanding his criminal offences – and he has a domestic partner here.
SPECIAL CONSIDERATION
Prospects of prolonged detention
The Tribunal is not confined only to the primary and other considerations set out in the Direction and must consider any other matter raised in a claim or which is obvious on the evidence is relevant to the non-citizen and consistent with the scope and purpose of the Act. It is relevant to consider that, in the event of the reviewable decision being affirmed, LWZB must continue to be detained by the Department because of ss 189 or 196, until he is either removed from Australia or granted a visa.
In this case, because of the situation in Afghanistan and the preliminary protection assessment, the Applicant cannot be returned to his country of birth. The consequence, therefore, if the decision to revoke his visa is affirmed, is that he would remain in immigration detention for a prolonged period until one of the following things happened: Section 195A provides that the Minister may grant to a person who is in immigration detention a visa of a particular class (regardless of whether the person has applied for the visa), if the Minister considers it is in the public interest. Section 197AB of the Act also contains a power for the Minister to make a residence determination that an unlawful non-citizen resides at a specified address, rather than remain in an IDC, and the Minister may specify conditions with which the person must comply. Such a determination may only be made under section 197AB(1) if the Minister thinks it is in the public interest so to do. It is also possible that the Applicant would be granted a protection visa, and the Tribunal notes that in the preliminary assessment, the officer did not consider that the provisions of s 36(1C) of the Act would be engaged in LWZB’s case.
The Tribunal cannot speculate about whether the Minister would exercise any of his non-compellable powers in relation to the Applicant and can only speculate in an informed way that a protection visa might be likely but notes the Respondent’s caution in submissions that no final assessment has been made. The Tribunal also notes that, as a result of the protection findings already made in favour of LWZB, s 198 of the Act will not require or authorise him to be removed to Afghanistan except in limited circumstances under s 197C, which are not presently relevant. He could be removed to a safe third country, but the Respondent did not make any submissions that were in play, or likely.
Dr Zimmerman’s conclusion that the current detention situation of the Applicant, elongated as it has been, is detrimental to his mental health both in terms of aggravating stress and, thereby, some elements that underly his PTSD and in the general sense of uncertainty about the outcome of his migration journey. In her oral evidence, she said: “The literature is clear [on prolonged detention]. [There is an effect on] coping, because of distance from support. Lack of control. Loss of a sense of agency. It leads to detrimental outcomes”. The Tribunal accepts her opinion.
The Tribunal finds that this special consideration weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
SUMMATION
The Tribunal has considered the primary and other considerations, as relevant, as set out in the Direction. In respect of the primary consideration related to the protection of the Australian community, the finding is that this weighs against revoking the mandatory cancellation of the visa, but not strongly. The primary consideration relating to family violence is found not to be relevant. The primary consideration relating to the best interests of minor children in Australia weighs strongly in favour of restoring LWZB’s visa. The primary consideration relating to the expectations of the community weighs, somewhat inevitably, because of the authority in FYBR, against the Applicant but, when applying the circumstances, not strongly.
In respect of the other considerations, the Tribunal has found that Australia’s international non-refoulement obligations weigh strongly in favour of restoring the Applicant’s visa, as does the consideration relating to the extent of impediments if removed. The consideration relating to links with the Australian community also weighs relatively heavily in favour of LWZB. The consideration relating to the impact on victims is found not to be relevant.
The consideration relating to prolonged detention weighs relatively heavily in favour of revoking the mandatory cancellation of the visa.
The Tribunal concluded that the Respondent’s position in this matter has little to commend it. The Applicant’s offending was at the lower end of the scale in terms of the category of offences, as is very clear from the sentencing Judge’s remarks. Apart from the primary consideration relating to the protection of the Australian community, which has been found to weigh mildly against non-revocation, all the other considerations in the Direction weigh in favour of the Applicant except for the one that is always deemed not to, or those that are not engaged on the facts.
The course of this matter has been unfortunate in the extreme. LWZB was sentenced to a one-month prison term in October 2018 and then was transferred into immigration detention, where he has now been for exactly four years.
The Tribunal asked counsel whether they could shed any light on why there were such long delays since the mandatory cancellation decision in November 2018. The papers before the Tribunal say that it was in February 2020, some 14 months later, that LWZB’s legal representatives contacted the Department and submitted that the notification of the visa cancellation was defective. Then a further period of around 22 months elapsed until the Department re-issued the notification. Part of this delay might be because the Minister’s lawyers were defending the nature of the notification before the Full Federal Court in EPL20 and Sillars, which the Tribunal notes were heard together in May and August 2021 and judgment was handed down on 27 September 2021. After the re-notification, there was then a further nine months while the delegate considered representations before deciding not to revoke the cancellation. Neither Mr McCowan nor Ms Ervin was able to provide the Tribunal with any information regarding the long delays. The Tribunal notes that on 10 February 2022, the High Court of Australia dismissed the Minister’s special leave applications in relation to EPL20 and Sillars, with costs.
It is well established by consistent authority (see, for example, Minister for Immigration andMulticultural Affairs v SRT [1999] FCA 1197, which agreed with Minister for Immigration andEthnic Affairs v Daniele [1981] FCA 212; (1981) 61 FLR 354) that it is impermissible for the Tribunal to impugn or go behind a conviction on which a visa is cancelled. That principle is frequently reminded to applicants who sometimes attempt to make such a submission in s 501 or s 501CA hearings. However, I consider that the other side of this coin is that proper regard should be had to the way a judicial officer weighed up the offending that, in this case, triggered the visa cancellation. In this respect, it is useful to remember that the Tribunal is carrying out an administrative function and, therefore, must defer to Magistrates and Judges who are carrying out a penal one.
Where there is a glaring disconnection between a penal sanction duly imposed and the length of time a non-citizen has been detained administratively and is not at liberty, I think this could be considered to be a relevant consideration in the Tribunal’s overall assessment. This is especially so when the fact of full-time imprisonment is an essential component of the mandatory cancellation. I find it to be so in this case, especially because of the considered findings of Her Honour the sentencing Judge, set out earlier in these reasons, about the nature of LWZB’s offending and his likelihood of re-offending. The practical outcome for the Applicant is that he entered prison for a one-month period because of regrettable but relatively minor failures to properly report the birth of his daughter in line with his special obligations as someone on the Register of Sex Offenders, and he then spent four years in three different IDCs in Victoria, Western Australia, and the Territory of Christmas Island.
Because of the very clear evidence relating to the weighing exercise of the relevant considerations the Direction requires the Tribunal to apply, the Tribunal was satisfied at the conclusion of the oral evidence and submissions that the reviewable decision should be set aside. Because of the unfortunate series of events that have elongated proper consideration of the discretionary power in s 501CA, first by the Minister’s delegate and then by the Tribunal, having made the decision that discretion was enlivened, I considered it desirable to ensure LWZB did not remain in detention any longer than was necessary.
Therefore, the Tribunal made orders under s 43(5B) of the AAT Act that the decision operate from 11.00 a.m. on 24 October 2022, Christmas Island Time. This allowed the Minister’s Department time to make the appropriate arrangements for LWZB to be brought back to mainland Australia.
Very short reasons were given orally at the conclusion of the hearing, and parties were advised that written reasons would be provided as soon as practicable.
DECISION
Pursuant to s 43(1)(c) of the AAT Act, the Tribunal –
(a)sets aside the reviewable decision dated 15 August 2022.
(b)in substitution for the decision so set aside, decides that, under s 501CA(4)(b)(ii) of the Act, the mandatory cancellation of the Applicant’s Class BB Subclass 155 Resident Return visa is revoked.
Pursuant to s 43(5B) of the AAT Act, this decision is not to come into operation until 11.00 a.m. Christmas Island Time on Monday, 24 October 2022.
158. I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the written reasons for the decision of Senior Member D. J. Morris
..................[sgd]......................................................
Associate
Dated: 3 November 2022
Dates of hearing:
19, 20 and 21 October 2022
Counsel for the Applicant:
Mr Andrew McCowan
Solicitors for the Applicant:
Refuge Legal
Advocate for the Respondent:
Ms Kate Ervin
Solicitors for the Respondent:
Clayton Utz
Annexe – List of Exhibits
G documents lodged on 6 September 2022 Exhibit R1
Respondent’s material bundle produced under summons Exhibit R2
Statement of the Applicant dated 13 October 2022 Exhibit A1
Statement of Ms PO dated 12 October 2022 Exhibit A2
Statement of Mr MP dated 28 September 2022 Exhibit A3
Statement of Ms HP dated 28 September 2022 Exhibit A4
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