LYYZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1635
•13 May 2020
LYYZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1635 (13 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0973
Re:LYYZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date of decision: 13 May 2020
Written reasons: 4 June 2020
Place:Melbourne
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 18 February 2020 to not revoke the mandatory cancellation of the applicant’s Class XA Subclass 866 Protection visa.
.............[sgd]..................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa under section 501CA – whether mandatory cancellation should be revoked – Class XA Subclass 866 protection visa – applicability of BAL19 – distinguished from BAL19 – Ministerial Direction 79 – primary considerations – other considerations – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Amendment (Character and General Visa Cancellation) Act 2014
Migration Amendment (Character and General Visa Cancellation) Bill 2014Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014
Cases
BAL19 v Minister for Home Affairs [2019] FCA 2189
Benrabah v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 4
DGBK v Minister for Home Affairs [2019] FCA 1479
DLJ18 v Minister for Home Affairs [2019] FCAFC 236
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCAFC 185
HLQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 685
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD 6/2019)
QSVS v Minister for Home Affairs [2018] FCAFC 124
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
WQKK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 319YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Department of Foreign Affairs and Trade, Country Information Report: Zimbabwe
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
4 June 2020
INTRODUCTION
This is an expedited review of a decision made by a delegate of the respondent dated 18 February 2020 to not revoke the mandatory cancellation of the applicant’s Class XA Subclass 866 Protection visa (the “visa”).
On 11 May 2018 the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (the “Act”).
Following an earlier defective notification letter, on 12 November 2019 a case officer from the Department of Home Affairs wrote to the applicant notifying him that his visa had been mandatorily cancelled under section 501(3A) of the Act and inviting him to make representations in respect of the decision. The notification letter was hand-delivered to the applicant on the same day.
The applicant subsequently made representations seeking revocation of the decision in accordance with section 501CA(4)(a) of the Act.
On 18 February 2020 a delegate of the respondent made the decision to not revoke the mandatory cancellation of the applicant’s visa. The applicant was notified of the decision to not revoke the mandatory cancellation by hand-delivered letter on 19 February 2020.
The applicant then sought review of the delegate’s decision by this Tribunal in accordance with the timeframe set out in section 500(6B) of the Act.
The hearing in this matter was initially scheduled for 4 and 5 May 2020. On the morning of 4 May 2020 the Tribunal was advised that the applicant was unable to attend the hearing due to the fact that he had been admitted as an inpatient to the Bankstown Hospital mental health unit. The applicant was released from hospital on 5 May 2020. In the morning of 6 May 2020 the Tribunal held a telephone directions hearing which the applicant participated in. During the course of that telephone hearing the Tribunal asked a number of questions of the applicant in order to assist in making an assessment of the applicant’s capacity to participate in a subsequent hearing. The Tribunal was satisfied that the applicant understood the questions that were being put to him and that he was willing and able to participate in a hearing. The Tribunal was subsequently provided with a report from the Mental Health Medical Director of International Health and Medical Services, Dr Jillian Spencer. Dr Spencer is a qualified psychiatrist. In her report, Dr Spencer stated that the applicant had been assessed at the Hospital and then separately by another psychiatrist. Dr Spencer concluded in her report that the applicant:
… does not appear to suffer a long-term mental illness but appears to experience transient psychotic symptoms that are likely drug induced. Since entering detention, [the applicant] has demonstrated that he understands his immigration matters and the events leading to his current situation. [The applicant] is considered to have the capacity to participate in his Tribunal hearing.
The hearing in this matter was subsequently held on 12 May 2020. The applicant was self-represented. The respondent was represented by Ms Hervee Dejean, a senior executive lawyer with the Australian Government Solicitor. At the commencement of the hearing the Tribunal again asked the applicant a series of questions and on the basis of that exchange, together with the report from Dr Spencer, continued to be satisfied that the applicant was willing and able to participate in the hearing.
On 13 May 2020 the Tribunal made a decision to affirm the decision under review. Set out below are the written reasons for the Tribunal’s decision.
PRELIMINARY MATTER
Prior to the hearing the respondent made written submissions in relation to the recent Federal Court decision of Rares J in BAL19 v Minister for Home Affairs [2019] FCA 2189 (“BAL19”) and its potential application to the matter before the Tribunal. The applicant, being self-represented, made no submissions on the point.
In summary, the respondent submitted that the decision in BAL19 is wrong. Further, the respondent submitted that BAL19 does not apply to decisions made under sections 501(3A) and 501CA(4) of the Act and that, accordingly, the Tribunal can proceed to review the delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa in the usual manner.
In considering this issue the Tribunal has had the benefit of the very detailed consideration given to the point by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294. That matter also involved the review of a decision to refuse to revoke the mandatory cancellation of a protection visa.
In BAL19, Rares J found that when section 36(1C) was inserted into the Act as part of the so called “2014 Amendments” Parliament’s intention was to “codify” Australia’s international non-refoulement obligations into the protection visa criteria set out in sections 35A(6) and 36 of the Act. Further, His Honour found that since the introduction of section 36(1C), section 501(1) of the Act and its “analogues” could not be relied upon as the basis of a power to refuse to grant a protection visa, as the criteria against which the applicant’s criminal history and behaviour is to be assessed is to be found exclusively in sections 35A(6) and 36. His Honour’s ultimate conclusion in relation to the powers in section 501 is encapsulated in the following paragraphs:
At [85]:
However, the 2014 Amendments carefully codified the criteria for a protection visa in ss 35A(6) and 36 in order to divorce other parts of the Act and the Refugees Convention. In my opinion, those criteria deal exhaustively with the criminal history and behaviours of an applicant for (or holder of) a protection visa so as now to exclude the availability or operation of s 501 and its analogues, including the pre-existing s 501H, as a basis to refuse to grant a protection visa: Nystrom 228 CLR at 571 – 572 [2].
And at [88]:
I am of the opinion that, since the 2014 Amendments, section 501(1) is not, and is not intended or expressed to be, relevant to determining whether or not a person, in accordance with sections 35A(6) and 36, is entitled to (or may be refused) under section 65(1) a protection visa as a refugee (as now defined in the Act) or to whom Australia otherwise owes protection obligations. Rather, section 36(1C) is a specific criterion applicable only to an applicant for a protection visa and it precludes the Minister using section 501(1) or its analogues as a basis to refuse to grant a protection visa: Anthony Hordern 47 CLR at 7; Nystrom 228 CLR at 571 – 572 [2].
The respondent has lodged an appeal against the decision with the Full Federal Court and the correctness of the decision is also being considered by the Full Federal Court in KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (WAD 6/2019). It is not for this Tribunal to speculate as to the likely outcome of such an appeal. Rather, the question for this Tribunal is whether BAL19 is binding on the Tribunal in the circumstances of the present case. In the Tribunal’s view, the circumstances of the present case are sufficiently distinguishable to conclude that it is not.
The matter before this Tribunal involves a review of a decision to refuse to revoke a mandatory cancellation of a protection visa made under section 501(3A) of the Act. The decision regarding whether or not to revoke a mandatory cancellation is one made in accordance with section 501CA(4) of the Act. It is convenient to extract the relevant provisions below:
Section 501(3A) provides that:
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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7) (a) (b) or (c); or
(ii) paragraph (6)(e) (sexually-based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory.
Section 501(6) relevantly provides that:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
(b) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually-based offences involving a child; or
(ii) found a person guilty of such an offence, or found the charge against the person proved to such an offence, even if the person was discharged without conviction;
Section 501(7) provides that:
For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced two or more terms of imprisonment, where a total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Section 501CA(1) provides that:
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 has been granted to a person.
Section 501CA(4) provides that:
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) there was another reason why the original decision should be revoked.
(Collectively, the “mandatory cancellation provisions”).
In contrast to the present case, BAL19 involved an application for Constitutional writ for relief in respect of a decision of the Minister to refuse to grant a temporary protection visa in the purported exercise of his power under section 501(1) of the Act.
Significantly, His Honour does not give any specific consideration to the mandatory cancellation provisions in his reasoning, although there is an incidental reference to section 501CA at [81]. While His Honour makes various comments on the applicability of his reasoning to cancellation decisions more broadly, the matter before him involved a decision to refuse to grant the visa and His Honour’s ultimate conclusion regarding the exercise of powers in section 501 is expressed to be in that more limited sense (see the relevant extract set out above).
Nor do the mandatory cancellation provisions neatly fit within the category of powers His Honour describes as being the “analogues” to section 501(1). Far from being analogous to the other broad general powers to refuse to grant or to cancel a visa set out elsewhere in section 501, the mandatory cancellation provisions are a quite separate and distinct set of provisions which were included in the Act for their own specific purpose.
The mandatory cancellation provisions were introduced as part of the Migration Amendment (Character and General Visa Cancellation) Act 2014 which was passed by the Parliament on 26 November 2014. They were, in effect, passed contemporaneously with the “2014 Amendments” to which Rares J refers and which introduced section 36(1C) into the Act. The “2014 Amendments” were introduced as part of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014 which was passed by the Parliament on 5 December 2014, a little over one week later.
The Minister at the time described the purpose of the mandatory cancellation provisions in his Second Reading Speech as follows:
The third key measure this Bill seeks to introduce is mandatory visa cancellation under section 501 of the act were a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of cancellation decision. Where a decision is taken by a delegate to not revoke the decision, the former visa holder will have access to merits review. This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.
The legislative context makes clear that the purpose of the mandatory cancellation provisions is quite distinct from the other powers contained in section 501 of the Act. The specific intention of section 501(3A) is described in the Explanatory Memorandum as being to ensure:
..that a decision to cancel a person’s visa is made before the person is released from prison, to ensure that the noncitizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.
In addition, the reference in section 501(3A) to the new section 501(6)(e) was intended to ensure that the mandatory cancellation provisions extended to a circumstance where a visa holder was found by a court to have engaged in sexually based offences involving a child. The Explanatory Memorandum states that:
..the term “sexually based offences involving a child” would include, but would not be limited to, offences such as child sexual abuse, indecent dealings with a child, possession or distribution of child pornography, Internet grooming, and other non-contact carriage services offences.
The specific intention of section 501CA was to enable a former visa holder who had their visa mandatorily cancelled to be able to seek revocation of the decision.
These provisions are unique within the context of the Act. There is no other like mechanism involving a mandatory cancellation found elsewhere in the Act. In this sense then, the mandatory cancellation provisions cannot be said to be analogous to the other provisions in section 501.
The mandatory cancellation provisions are also not analogous to other powers in section 501 in another sense. Central to Rares J’s reasoning in BAL19 was his observation that there was considerable overlap between the assessment of an applicant’s criminal history and behaviour against the specific protection visa criteria set out in sections 35A(6) and 36 of the Act on the one hand and what he referred to as the “broad discretionary powers” set out in section 501(1) and its “analogues”. His Honour states at [68]:
Ordinarily, general provisions conferring a power in an Act will not apply to another power that the Act confers that also prescribes the conditions for its exercise. Gavan Duffy CJ and Dixon J held in Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd (receiver appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269):
When the Legislature explicitly gives a power by a particular provision which describes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
(emphasis added)
It is clear from this reference that when His Honour expresses a concern regarding the potential overlap between applying the specific criteria in section 36(1C) and the powers in section 501(1) and its “analogues” he had in mind provisions of a “very broad” discretionary[1] nature being applied in preference to a section of a specific nature in respect of the same subject matter. His Honour notes in his reasoning that if the broad discretionary powers in section 501 were able to be applied in preference to the more specific, narrow power in section 36 it would result in the latter, in effect, having no function. His Honour states at [71]:
Importantly, s 36 does not provide that an applicant for a protection visa who satisfies the criteria in s 36(1B), (1C) and (2) may nevertheless be refused the visa under s 501(1). If that were the intention of the Parliament, then the specific and narrow criteria in s 36(1B) and (1C) that give statutory effect to Australia’s non-refoulement obligations would have no useful function since these could be overridden in every protection visa application by the use of the general power in s 501(1), regardless that the different criteria in s 36(1B) and (1C) had been met.
[1] See BAL19 at [67].
The Tribunal is satisfied that given the quite distinct subject matter and purpose of the mandatory cancellation provisions they cannot be said to be an example of such a broad discretionary provision providing a power with respect to the same subject matter. There is no sense in which the exercise of the mandatory cancellation provisions would leave section 36 with “no useful function”. Nor can section 501(3A) at least, be said to be discretionary. That section of course includes absolutely no discretion but instead requires the mandatory cancellation of a visa once certain jurisdictional preconditions have been met.[2]
[2] See Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [72].
It would certainly be very perverse outcome for section 501(3A) to be considered to fall outside the scope of what His Honour intended when describing section 501(1)’s “analogues” but for section 501CA(4) to be considered to fall within it. The former section being the provision that provides the power to mandatorily cancel a visa and the latter section being the provision that provides the power to revoke such a decision. For the reasons set out above, the Tribunal is satisfied that the decision in BAL19 does not apply to either of the mandatory cancellation provisions. The decision is therefore not binding authority on the Tribunal in respect of the present matter.
In addition to the decision of Member Eteuati to which I have already referred, this conclusion is also consistent with a number of recent decisions of the Tribunal including of Deputy President Britten-Jones in WQKK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 319 and also of Senior Member Morris in HLQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 685.
Having reached the conclusion that BAL19 does not bind the Tribunal, it is appropriate to consider whether there is any other rational basis to extend the principle enunciated in BAL19 to the circumstances of the present case. Again, respectfully, the Tribunal is satisfied that there is not.
There is nothing in the wording of the mandatory cancellation provisions that supports a conclusion that they were intended to exclude application to a protection visa holder. For the reasons already described, the Tribunal is satisfied that there is no basis for concluding that the mandatory cancellation provisions are in effect exercising the same power as that provided for in sections 35A(6) and 36 of the Act.
Further, to seek to exclude a particular class of visa holder from the mandatory cancellation provisions would also undermine the policy objective of the provisions. As referred to earlier, there would appear to be no other equivalent provision anywhere else in the Act which would facilitate the mandatory cancellation of a protection visa and thereby ensure that where such a visa holder has committed a serious crime, including potentially a sexual crime against children, they can continue to be held in either prison or detention pending the resolution of their visa status.
It is difficult to conceive of a circumstance where Parliament could have intended such an exclusion and yet not made the exclusion explicit. This is particularly true given what was in effect the concurrent consideration of the amendment introducing the mandatory cancellation provisions and the separate but contemporaneous amendment introducing section 36(1C) which had as a central focus of the amending Act the issue of protection visas.
Further, there is nothing in the Explanatory Memorandum which accompanied the Migration Amendment (Character and General Visa Cancellation) Bill 2014 that supports a conclusion that the Parliament intended for the mandatory cancellation provisions to not be applied to a protection visa holder. In fact, the opposite is true. Attachment A to the Explanatory Memorandum sets out the Statement of Compatibility with Human Rights which states that:
Australia’s non-refoulement obligations
This Bill may lead to:
1. a lawful non-citizen, to whom Australia owes protection obligations, who is serving a term of imprisonment and who fails the character test under section 501 of the Act, having their visa cancelled without notice;
In addition, as Member Eteuati notes in FRVT:
The Explanatory Memorandum for the 2014 Character Amendments relevantly provided:
The effect of this amendment is to provide in paragraph 500(1)(c) of the Migration Act that applications may be made to the AAT for review of a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on one or more of Articles 1F, 32 or 33 (2) of the Refugees Convention or paragraph 36(2C)(a) or (b) of the Migration Act. This amendment acknowledges that decisions to cancel a protection visa on the basis of Article 1F, 32 or 33 (2) of the Refugees Convention would always be made under section 501 (refusal or cancellation of these on character grounds) and are therefore already covered under paragraph 500(1)(b).
There has also been a recent Full Federal Court decision in Benrabah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 4 which was handed down on 7 February 2020 which is consistent with the Tribunal’s conclusion. That decision involved an appeal from the dismissal of an application for judicial review of a decision of the Tribunal which affirmed the decision of a delegate to not revoke the cancellation of the appellant’s protection visa under section 501(3A) of the Act. While there is no specific reference to the decision of BAL19 in the Full Court’s written reasons, nor was the issue of the application of the mandatory cancellation provisions to a protection visa specifically addressed, the decision of the Full Court was nonetheless finalised after BAL19 had been handed down, and on the basis that the mandatory cancellation provisions can be validly applied to a protection visa. There have also been numerous earlier Federal Court decisions which have accepted that the mandatory cancellation provisions can be validly applied to a protection visa.[3]
[3] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; DLJ18 v Minister for Home Affairs [2019] FCAFC 236; QSVS v Minister for Home Affairs [2018] FCAFC 124; DGBK v Minister for Home Affairs [2019] FCA 1479.
For these reasons, the Tribunal is satisfied that BAL19 has no application in the circumstances of this case and the Tribunal has therefore proceeded to consider this matter on its merits in the usual manner.
BACKGROUND
General Background
The applicant is a 34-year-old citizen of Zimbabwe who arrived in Australia as the holder of a student visa in 2008. He has resided in Australia since that time.
The applicant had previously lived in Zimbabwe up until approximately 21 years of age. The applicant attended school in Zimbabwe up to the end of High School. The applicant worked as a teacher’s assistant in Zimbabwe for approximately one year before migrating to Australia on his student visa.
The applicant speaks Shona and also English.
The applicant gave evidence to the Tribunal that his mother and father as well as “uncles and aunts” and grandparents still reside in Zimbabwe. He told the Tribunal that he has one brother who lives in South Africa and two sisters, one of whom resides in Australia. There has been some inconsistency with respect to information provided by the applicant regarding his family composition and their places of residence. This issue will be addressed in more detail later on in these reasons. However, the Tribunal accepts the truthfulness of the applicant's evidence regarding his family composition and their places of residence as given at the hearing.
The applicant and his former partner SH have a son, JM, who was born in 2010 and is currently approximately nine years of age.
The applicant has a relationship with his niece and nephew residing in Australia as well as the mother of his former partner, GA, who currently has custody of JM.
The applicant gave evidence at the hearing that he has also recently commenced a relationship with a new partner, AN. There is no reference to AN in any of the materials before the Tribunal nor was any statement received by AN in support of the applicant. However, again, the Tribunal accepts the truthfulness of the evidence given by the applicant at the hearing in respect of this relationship.
Following his arrival in Australia the applicant completed qualifications in accounting at the Holmesglen Institute. He also obtained a certificate in aged care as well as in civil construction.
Upon completion of his studies the applicant commenced work as a labourer and also in aged care. The applicant gave evidence to the Tribunal that he had last worked in 2014 and had been on Centrelink benefits leading up to his incarceration.
The applicant applied for a protection visa in 2010 and was granted a protection visa in 2011. The basis for the applicant being granted a protection visa is addressed later on in these reasons.
Criminal offending
The applicant has a significant history of offending which includes a number of very serious driving offences, including driving in excess of the prescribed alcohol limit, unlicensed driving, driving an unregistered motor vehicle, dangerous driving causing serious injury and failing to stop after an accident. In addition, the applicant’s offending history includes unlawful assault (multiple charges), theft (multiple charges), burglary, possess controlled weapon without excuse, criminal damage and numerous contraventions of bail conditions as well as a Community Corrections Order. The applicant’s offending includes the following:
(a)On 4 August 2010 the applicant was found guilty of failing to produce a licence to police on request, fraudulently using an identifying number without authority and driving an unregistered motor car.
(b)On 18 June 2010 the applicant was found guilty of driving unlicensed and driving while exceeding the prescribed concentration of alcohol limit. The applicant recorded a blood alcohol reading of 0.181%. The applicant was fined $1,500 and disqualified from holding or obtaining a driving license for a period of 18 months. The date of the offence was 1 May 2009.
(c)On 28 November 2012 the applicant was found guilty of careless driving, unlicensed driving, driving an unregistered motorcar (multiple offences), and driving while exceeding the prescribed concentration of alcohol limit. The applicant recorded a blood alcohol reading of 0.115%. The applicant was disqualified from holding or obtaining a driving license and the Court also made an order that the applicant not be re-licensed “except by order of a Magistrate”.
(d)On 28 November 2012 the applicant was convicted of possessing a controlled weapon without excuse, theft from a shop, attempting to obtain property by deception, burglary and failing to answer bail (three charges) and sentenced to a Community Correction Order for 12 months together with an order to perform 120 hours of community work.
(e)On 5 October 2014 the applicant was convicted of being drunk in a public place, theft from a shop, failing to answer bail (two charges) and criminal damage with intent to damage/destroy. The applicant received a fine.
(f)On 16 May 2016 the applicant was convicted of being intoxicated in a public place.
(g)On 2 August 2016 the applicant was convicted of theft from a shop, unlawful assault, stating a false address when requested and committing an indictable offence whilst on bail. The applicant received a fine.
(h)On 16 October 2017 the applicant was found guilty of being drunk in a public place. The offence was found proven and otherwise dismissed. Also on 16 October 2017 the applicant was convicted of behaving in a disorderly manner while drunk, unlawful assault (two charges), tamper with motor vehicle, failing to answer bail (two charges), unlicensed driving, using an unregistered motor vehicle on the highway, and driving a vehicle while exceeding the prescribed concentration of alcohol limit. The applicant recorded a blood alcohol reading of 0.126%. The applicant was also convicted of wilfully damaging property and found guilty of contravening a Community Correction Order. The matter was adjourned for sentencing to a later date.
(i)On 14 March 2018 the applicant was convicted of unlicensed driving, driving dangerously causing serious injury and failing to stop a vehicle after an accident. The applicant was sentenced to a total of three years imprisonment with a non-parole period of 20 months. The applicant was also disqualified from obtaining any license or permit for two years.
Details of the applicant’s criminal record together with a summary of further details of the incidents from the relevant preliminary police briefs, incident reports and also comments from the sentencing remarks were put to the applicant by the respondent’s representative in the course of his cross-examination. The applicant did not seek to challenge the substance of his criminal record although he indicated that he could not recall and did not necessarily accept every precise detail being put to him. As was consistent with much of the evidence the applicant gave at the hearing, his responses to questions were very succinct and often involved one-word responses. At times the applicant presented to the Tribunal as being reluctant to provide answers to the questions being put. Based on the materials before it, together with the applicant’s evidence, the Tribunal is satisfied that the applicant’s offending history is consistent with the summary as set out above.
ISSUE
The applicant contends that he does not fail the character test in the Act although he was unable to articulate any basis for that position. The applicant made clear to the Tribunal that he does not seek to challenge the substance of his criminal record. Notwithstanding the applicant’s contention to the contrary, the Tribunal is satisfied that the applicant does not pass the character test under section 501(6)(a) of the Act on the basis that he has a substantial criminal record.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the mandatory cancellation decision, having regard to all relevant considerations, including those set out in Part C of Direction No. 79 which was issued under section 499 of the Act on 20 December 2018 (“the Direction”).
CONSIDERATION
In considering this matter the Tribunal has had regard to the General Guidance set out in the Direction at paragraph 6.2 (1) which provides that:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(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 non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Direction provides that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[4]
Primary Considerations
[4] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the risk to the Australian community, the Direction provides that the Tribunal must 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The applicant’s criminal record is extensive and includes serious offending.
The applicant’s first offence took place in 2009, a little over 12 months after the applicant first arrived in Australia, and he continued to offend with reasonable regularity up until his incarceration in 2017.
The applicant’s offending has also included a pattern of repeat offending.
In his written submissions, the applicant stated that he considered his criminal history to mostly involve unlicensed driving and theft. With respect to his unlicensed driving offences the applicant states that he was using his Zimbabwean licence at the time and did not know that it was invalid to use such a licence in Victoria. Notwithstanding the applicant’s claims in this regard, he nonetheless committed the offences of driving without a licence which, in the Tribunal’s view, is not an insignificant offence, and he did so on more than one occasion and after having clearly been put on notice in relation to the need for such a licence.
In addition, the applicant’s record includes a number of serious driving offences. The most serious of those offences is the December 2014 driving incident which led to his conviction in March 2018 of driving in a dangerous manner causing serious injury and failing to stop after an accident (the “December 2014 Incident”). The details of this incident were summarised by Her Honour Judge Quin in her sentencing remarks as follows:
Soon after midnight on 10 December 2014, you were driving the Nepean Highway in Mount Eliza. The car you were driving was not registered and you did not have a license. [The victim] was also driving his car along the highway towards Mornington after he had finished work. On this portion of the highway, the speed limit is 80 Kph and you are both travelling on a straight stretch of the road, visibility and conditions were good.
[The victim’s] car was struck heavily from the rear by your car causing his car to slide and rotate for over 50 metres before colliding with a power pole. The impact with the power pole was on the rear driver’s side door and caused significant damage to the car as depicted in photos, Exhibit C. Witnesses described a loud crash followed by screeching. [The victim] has recalled that he felt like his car was rolling with his body turning, then shortly thereafter that he woke up lying on the centre console. He touched his head and felt blood all over his hands. He described feeling his fingers going inside a hole in his head and in thinking he was going to die.
Various witnesses and emergency workers soon came to his aid. He was cut loose from the car wreckage and airlifted to the Alfred Hospital with serious head injuries.
You continued driving for approximately 1.4 kilometres before stopping. Your car also had significant damage to the front. Police soon located your car unattended on the road and it was towed away. Subsequent tests did not reveal any mechanical defects in your car which could have contributed to the collision.
The sentencing remarks state that the police attended the applicant’s flat in the early hours of the morning, but the applicant was not there. The applicant went to the police station late that day and then left and arranged to attend again later that night. The applicant subsequently participated in a record of interview and admitted that he was the driver of the car but maintained that he had not been affected by alcohol when driving.
It is clear from the sentencing remarks that the sentencing Judge found a number of aggravating features to the applicant’s offending, including the effect the offending has had on the victim and his family and that the applicant left the scene of the accident. Judge Quin’s sentencing remarks included a description of the ongoing impact the incident has had the victim and his family. Her Honour states:
I received victim impact statements from [the victim], his wife and another family member. They eloquently set out the significant impact that your offending has had on all of their lives, particularly the change in the family dynamics and a drastic effect on [the victim]. He no longer enjoys the pleasures he used to get from normal recreational activities such as fishing, boating, gardening and walking and cooking. The family’s social lives have changed with [the victim] not comfortable anymore around people and conscious of his difficulties with walking and his changed appearance.
His recovery has been very slow. His wife still feels that he cannot be left alone and he has become very moody and angry. She states “This incident has totally affected and changed the life of my husband and my family. It’s very stressful for me and my three daughters that my husband and their father is now unable to enjoy life and suffers such emotional impact”.
[The victim] states, “It is terrible. I can’t sleep, I’m in physical pain, my back, head, ears, my scar is sore. I have pain behind right ear, I’m partially deaf in my left ear. It feels like it’s full of water. My left and right ear no longer match and I’m very aware of the scar on my face. I have headaches. When I eat, there is pain in my jaw. The hearing loss in my left ear is great. My balance is affected and I get dizzy when I stand up or lie down. I miss being a father. I can’t do anything with them now, I used to play with them. I can’t do it. We used to do lots as a family, I don’t like to leave the house. I’m scared to go out. I just prefer to stay home. I’m so scared when I go out in the car. As noted by his daughter, “The whole vibe at home became negative”.
The sentencing Judge acknowledged a number of mitigating factors in her sentencing remarks, including the applicant’s plea of guilty which she accepted represented evidence of remorse, and also the fact that the applicant has suffered depression and anxiety, in part as a consequence of the ongoing impact of an assault that occurred on the applicant when he was 19 years of age in Zimbabwe, and in part as a consequence of ongoing uncertainty regarding his immigration status. Notwithstanding these mitigating factors the applicant was sentenced to a total effective term of imprisonment of three years.
The Tribunal is satisfied that the December 2014 Incident occurred consistently with the sentencing Judge’s remarks and that it is a particularly serious offence. It involved a serious accident which occurred as a result of the applicant’s dangerous driving, including driving significantly in excess of the speed limit. The applicant’s dangerous driving resulted in a very serious and long lasting injury to the victim and it also had a broader impact on his family. The fact that the applicant chose to leave the scene of the accident in circumstances where, in the words of the sentencing Judge, the applicant must have been aware of “at least the potential if not the high likelihood of serious injury to the other driver” demonstrates both a disregard for the law and also a callous disregard for the safety of fellow road users. This conclusion is reinforced by the significant term of imprisonment the applicant was sentenced to as a consequence of his conduct.
For these reasons, the Tribunal is satisfied that the applicant’s record of offending is very serious.
In forming this view, the Tribunal has been mindful of the difficult personal circumstances experienced by the applicant and as acknowledged by the sentencing Judge in her sentencing remarks in respect of the December 2014 Incident. In particular, the Tribunal has had regard to the fact that the applicant experienced a traumatic assault while living in Zimbabwe and has continued to experience significant mental health issues including depression and anxiety. This background has been dealt with in more detail below in the section addressing the risk of reoffending as well as in the section addressing international non-refoulement. In addition, the Tribunal acknowledges that during the time the applicant has lived in Australia he has had to deal with the ongoing impact of his mental health conditions, his substance abuse issues, the breakdown of his former relationship and also financial hardship and homelessness.
There is no question in the mind of Tribunal that if the applicant were to reoffend again in a similar manner it has the potential to cause very significant physical and psychological damage to members of the Australian community. This potential is demonstrated by the very significant impact the applicant’s offending in the December 2014 Incident had for his victim. In addition, if the applicant were to repeat his drink driving offences it would have the potential to result in genuinely devastating consequences for members of the Australian community.
The Tribunal now turns to the issue of risk of the applicant reoffending.
The material before the Tribunal as well as the direct evidence of the applicant himself included evidence of a number of factors which mitigate against the risk of the applicant reoffending to some degree. Those factors include:
(a)The applicant’s plea of guilty to his most serious offending and his various expressions of remorse for his offending. As indicated above, the sentencing judge acknowledged the applicant’s plea of guilty in relation to the December 2014 Incident as well as the fact that the applicant had gone to police voluntarily which Her Honour accepted was a demonstration of the applicant’s remorse for his offending. In the course of his direct evidence the applicant told the Tribunal on a number of occasions that he was remorseful for his offending. When asked specifically about his feelings in relation to the December 2014 Incident and the injury he had caused the applicant told the Tribunal that he felt remorse and that he felt “bad about it”. The Tribunal materials included the applicant’s submission to the Department where the applicant refers to having been “deeply saddened or ashamed about the accident” and hopes the victim “will be able to recover as soon as possible”. In his written submissions to the Department the applicant states that he feels “deeply saddened or ashamed about the accident that I had on the road”. The Tribunal materials also included an undated statutory declaration which the applicant affirmed in the course of his evidence. In the statutory declaration the applicant states:
I know I have made serious mistakes in my life, and I feel intense regret every day.
… I take full responsibility with what [I] happened and I feel really remorsed when I think of the person and their family as well I cannot really do much but state how badly I feel about that ordeal.
(b)The applicant’s stated commitment to securing a more positive future for himself as evidenced by the fact that the applicant has undertaken a number of courses as well as counselling while in prison. The Tribunal materials included reference to the applicant having undertaken a course in harm reduction, alcohol and drugs and Occupational Health and Safety. The applicant gave very little detail in relation to the courses and the impact they have had on him in his direct evidence to the Tribunal. However, in the statutory declaration included in the Tribunal materials the applicant states:
… I did time at the Metropolitan Remand Centre and other prisons in Melbourne. I totally take the time that I did very seriously it opened horizons in a major way I started doing courses to help for when I go out in the community.
… I believe the courses I have done in prison like drug and alcohol get me geared in great positivity in the life ahead.
… A whole lot of things have changed nowadays I try to keep myself fit in my mind busy without thinking way [to] much about any substances that can turn my focus around. I take my regular medication that helps me with managing a bit of depression and anxiety that I have gradually got a bit above of. I have done a bit of counselling when I was in prison and I will continue getting further assistance when I go out in the society. I will also do this for my son and grandmother brothers and sisters who motivate me to move forward in positivity and respect. I want to be a good role model in the society as well.
.. This is truly a wake-up call and I will try most of the things that I have stated that I have an opportunity to be in Australia.
(c)The applicant’s stated strong commitment to his family, and in particular his son, and his identification of family as a significant motivating factor for him not reoffending again. The applicant told the Tribunal that he wanted to secure a stable job so that his family would look up to him. He told the Tribunal that he needed his son around him. The applicant stated that having contact with his son and in a close relationship with him is something that he values significantly and that his circumstances now are somewhat different to the time of his previous offending when his relationship with his former partner was going “downhill”.
(d)The fact that the applicant has taken some steps to address his underlying mental health conditions. The applicant told the Tribunal that he took some medication to help with his conditions and there was also evidence the applicant had been seeing a psychologist “every three weeks” while in prison. The applicant gave evidence that he intended to continue with counselling if released into the community.
(e)The applicant’s changed personal circumstances more broadly. In his written submissions to the Department the applicant states that much of his offending occurred at a time in his life when he was dealing with difficult personal circumstances including homelessness as well as the breakdown of his former relationship. The evidence before the Tribunal was that these circumstances are no longer present with the applicant now being in a new relationship and also with the benefit of GA’s offer to allow the applicant to stay with her until he “sorts” himself out.
(f)The applicant’s stated determination not to reoffend. In his statutory declaration the applicant states:
… I have now taken steps to ensure change and I know I will not offend again.
… I am no longer thinking the way I used to before I don’t take things for granted I always take time to communicate with family, friends and those around me.
The Tribunal heard directly from GA, who is the applicant’s mother-in-law. GA affirmed her written statement to the Tribunal. In her written statement GA states:
To whom it may concern.
I’m requesting if you could pardon [the applicant] for his previous behaviour in regards to his son [redacted] because he was young and very silly.
I am very happy looking after his son [redacted] however I have broken my femur. It has been a little over three months and my recovery will take 3 more months. I need some help in looking after his boy and I need his assistance to help me cook and clean.
I have my daughter, but she is unable to help often.
[The applicant] would stay here at my place to help with some daily chores under my supervision.
The Tribunal also heard from SN, a therapeutic carer of young people and a friend of GA and who knows the applicant through GA and their mutual church activities. SN provided a statement to the Tribunal which she affirmed in her direct evidence. SN gave evidence that she had come to know the applicant through church activities and through her relationship with GA. SN told the Tribunal that she had known the applicant for around five years and that he participated in church activities on occasion with his son and GA. SN also gave evidence that the applicant has a friendship with JJ, one of the leaders of the church associated youth group. In her written statement SN stated that:
I have found [the applicant] to be very polite and pleasant every time I have had contact with him. [The applicant] is always calm, and appreciative. He is not at all aggressive in any way.
The Tribunal is satisfied that the applicant will have the support of his family if released back into the community including his former partner’s mother, his sister, her husband and children and also his son. However, it was clear to the Tribunal that the level of support available to the applicant is limited to some degree by virtue of, in the case of his son, his minor age, and in the case of his former partner’s mother due to her advancing age and her own health issues. The Tribunal accepts that the applicant’s family represents a very significant positive motivating factor for him not to reoffend again in the future.
The applicant’s sister, PA, did not give evidence at the hearing nor did she make a statement, however, the Tribunal accepts on the basis of the applicant’s evidence as well as the evidence of GA that the applicant’s sister is willing to provide some level of support to the applicant if he is released back into the community and that this support would also extend to her husband and children.
The evidence before the Tribunal was that the applicant’s former partner, SH, is heavily constrained in her capacity to be able to assist either the applicant or their son as a consequence of her own ongoing health concerns.
There was evidence before the Tribunal of some support that the applicant has from a broader friendship group although that evidence was extremely limited. The Tribunal materials include a purported email statement from CW dated 15 April 2020. CW was not called to give evidence before the Tribunal but the Tribunal accepts the statement as tended before it. In the email CW states:
To who ever this may concern,
I have known [the applicant] for many years we met through a friend of mine which he worked for and he has always had my best interest at heart he is a good caring guy.
In my eyes he is as much of Australian than all of us.
In the course of his evidence, the applicant told Tribunal that he is currently in a relationship with his new partner, AN. He told the Tribunal that it was his intention to continue that relationship if released back into the community. AN did not give evidence to the Tribunal nor did he make a statement for the purpose of the hearing. It is difficult for the Tribunal to form any view in relation to the practical support, if any, AN would be able to provide to the applicant if he is released back into the community. However, the Tribunal accepts that the applicant’s relationship with AN would represent some level of emotional support for the applicant in his transition back into the community. In addition the Tribunal recognises that the fact that the applicant is now in a positive new relationship is a significant change circumstance from the time of his previous offending.
The Tribunal, however, remains very concerned in relation to a number of other factors which strongly suggest a high risk of reoffending.
The overwhelming evidence before the Tribunal is that the applicant has had a serious issue with alcohol abuse for almost the entirety of his adult life. There was also considerable evidence that the applicant had been a regular user of various forms of illicit drugs over an extended period of time.
When asked under cross-examination when he first started drinking alcohol, the applicant told the Tribunal that it was while he was still a teenager and that he would drink on four or five days within a week and that he would usually drink beer. When asked how many cans of beer he would typically drink in a day, the applicant initially told the Tribunal “two cans in a day” but then when pressed under cross-examination conceded that he would drink a lot more than two cans.
In his direct evidence in relation to his 2009 exceed prescribed concentration of alcohol offence, the applicant accepted that he had consumed “a lot of alcohol” on that occasion. When asked in relation to his July 2013 shop steal offence (which resulted in the applicant’s conviction on 5 October 2014) whether he accepted that the offence had involved the shoplifting of alcohol the applicant indicated that he accepted that it did. When asked whether he thought he had a problem with alcohol at this time the applicant told the Tribunal that “yes I did a bit”. The applicant also accepted that his shop steal offence in July 2016 (which resulted in the applicant’s conviction in August 2016) also involved the theft of alcohol. When asked in relation to the January 2017 incident at Mordialloc railway station involving a 16-year-old girl, the applicant told the Tribunal that he could not remember the incident and that he may have been drunk at the time.
The applicant told the Tribunal that he commenced smoking cannabis as a teenager and had smoked it every day up until his incarceration. The applicant told the Tribunal that he still smokes cannabis occasionally. The applicant told Tribunal that he had occasionally used “ice” but not “often”. There was also evidence before the Tribunal of the applicant continuing to use other illicit drugs while incarcerated.
When asked if he would continue to take ice if he was returned to the community the applicant told the Tribunal “not often” and “occasionally”. When asked whether he would engage in the drinking of alcohol if released back into the community the applicant again told the Tribunal “occasionally” and “here and there”.
Of particular concern to the Tribunal is the fact that a substantial number of the applicant’s offences involve alcohol in some manner. This is reflective of a serious issue with alcohol abuse. The applicant has three offences of driving while exceeding the prescribed blood alcohol limit and in each case the blood alcohol concentration levels were high. There are also a number of offences which involve the applicant being intoxicated in a public place. While such offences may not be considered serious in isolation, in the Tribunal’s view it is reasonable to infer that such offences are also reflective of the applicant having a serious issue with alcohol abuse. In addition, a number of the theft offences involve the applicant attempting to steal bottles of alcohol which further reinforces this conclusion.
Having regard to all of the evidence before it, the Tribunal is of the view that the applicant has not demonstrated a genuine insight into the full extent of his issues with alcohol. While the Tribunal accepts that the applicant has undertaken a course in drugs and alcohol while in prison, has expressed a stated commitment to better manage his alcohol use, and has also undertaken counselling in relation to his underlying mental health conditions which have no doubt contributed to his alcohol use, it does not accept that the applicant’s alcohol abuse issues have been resolved. The Tribunal is satisfied that the risk of the applicant falling back into alcohol abuse if released back into the community is high. Given the clear connection between the use of alcohol and offending, the Tribunal is satisfied that this factor is indicative of a higher risk of the applicant reoffending again in a similar manner. In reaching this conclusion the Tribunal acknowledges that there is no evidence that alcohol was a factor in the December 2014 Incident. It was, however, clearly a factor in each of the applicant’s high range drink driving offences which are also serious offences with the potential to cause very serious harm to innocent members of the community. The Tribunal also acknowledges that there was no evidence of the applicant drinking alcohol while in prison. However, the capacity of the applicant to refrain from alcohol abuse has not yet been tested in the community. The Tribunal has a low level of confidence in his capacity to do so.
In the Tribunal’s view, the risk of the applicant falling back into serious alcohol abuse is further increased as a consequence of the ongoing issues he has with his mental health. The Tribunal accepts the applicant has suffered from depression and anxiety as well as some post-traumatic stress disorder symptoms. The evidence supports a conclusion that these conditions are in part a consequence of very difficult life circumstances the applicant experienced while living in Zimbabwe including a traumatic physical assault when he was approximately 19 years of age. They are also, in part, a consequence of personal difficulties he has experienced while living in Australia as well as ongoing uncertainty associated with his migration status. While the Tribunal accepts that the applicant has taken some steps in an attempt to address these underlying mental health issues, including undertaking counselling as well as taking some medication, the evidence before the Tribunal supports a conclusion that these issues are not fully resolved and are ongoing.
While there was no direct medical evidence at the hearing itself, the Tribunal materials included references to a clinical psychologist report which was cited by the sentencing Judge in her remarks in relation to the December 2014 Incident. The Tribunal is satisfied that on the basis of this information it is reasonable to infer that at least part of the reason the applicant has engaged in alcohol abuse, as well as illicit drug use, is as a way of self-medicating his mental health conditions.
While the applicant has indicated to the Tribunal that he is committed to pursuing ongoing counselling and also committed to the use of medication to manage his mental health issues, the Tribunal is satisfied that there is a real risk that those mental health issues will be present in the applicant’s life for some time and that therefore they further exacerbate the risk of the applicant engaging in ongoing alcohol abuse and illicit drug use in the future. This in turn exacerbates the risk of the applicant reoffending. If the types of offending the applicant has committed in the past were to be repeated in circumstances where the applicant was heavily intoxicated or impacted by illicit drugs, the potential for genuinely devastating consequences is very real.
There was also evidence before the Tribunal of the applicant having engaged in inappropriate and aggressive behaviour while in prison and detention. The Tribunal materials include evidence that since being taken into immigration detention the applicant has been involved in three critical, six major and 13 minor incidents. These incidents have included abusing staff, assaulting other detainees and inappropriate sexual behaviour towards female staff and female detainees.
In the course of cross-examination, the applicant conceded that while in custody he had smashed a computer on more than one occasion, had stomped on the feet of a person and that he had engaged in a number of fights. The applicant denied having engaged in any form of inappropriate sexual behaviour. When details of a number of the alleged incidents were put to the applicant the applicant indicated that he did not accept all of the allegations put although he did accept some of them. When asked whether he had any specific examples of allegations put that he sought to challenge, with the exception of the allegation of inappropriate sexual behaviour, the applicant declined to provide an example.
In his written submissions to the Department, the applicant also denied some aspects of the alleged incidents while in detention including in particular the suggestion of any inappropriate sexual behaviour. The applicant did however acknowledge that there had been some “confrontations” which he explained were a consequence of difficulties he was experiencing in adapting to his circumstances and also due to severe anxiety that he was experiencing at the time.
The Tribunal is satisfied that the applicant has engaged in inappropriate and aggressive behaviour during his time in prison and detention and that this is evidence of difficulty that the applicant can have in controlling his emotions in stressful circumstances.
Of further concern to the Tribunal is that the applicant has demonstrated a consistent disregard for the law as reflected in his broader record of driving offences, including multiple high range drink driving offences, and in his record of breaching bail conditions and a Community Corrections Order. The Tribunal is satisfied that the applicant’s disregard for the law is a further significant risk factor in relation to his potential to reoffend.
For the reasons set out above, the Tribunal is satisfied that the risk of the applicant reoffending again in a similar manner is high and that the risk to the Australian community is unacceptable.
Accordingly, the Tribunal is satisfied that this consideration weighs heavily against a decision to revoke the mandatory cancellation of the visa.
The best interests of minor children in Australia
There was evidence before the Tribunal in relation to the impact a decision of the Tribunal may have on the applicant’s son JM who is approximately nine years of age. JM is an Australian citizen who currently resides with his maternal grandmother, GA.
The applicant gave evidence that he loves his son and is committed to supporting and caring for him in the future. In his Personal Circumstances Form the applicant states that he believes his son needs him for moral and emotional support. The applicant told the Tribunal that prior to going to prison he had assisted GA in caring for JM including by helping with cleaning and cooking and also by feeding and dressing JM and accompanying him on trips to and from school. The applicant told the Tribunal that he had previously taken JM to the park on a regular basis and played games with him, and also attended church and participated in church activities with him. The applicant stated that he had at times assisted financially including by contributing as much as $200 per week to assist in the care of JM. The applicant acknowledged that he had not seen his son face-to-face for a substantial period of time, stating that the last time he had done so was in around 2013 or 2014. The applicant tendered a photograph of himself with his son at around that date which he told the Tribunal he believed was the last time he had physically been in the company of his son. However, there was evidence that the applicant has maintained regular telephone contact with his son up until the present day.
The applicant’s evidence regarding his intended living arrangements if released back into the community was somewhat confused. The applicant initially told Tribunal that if released back into the community it was his intention to live with his sister and also possibly GA for a period. However, the applicant subsequently told the Tribunal that it was his intention to move in with his new partner, AN.
GA also gave evidence to the Tribunal in relation to JM. GA told the Tribunal that she has been caring for JM since he was one and a half years of age and that she has continued to do so even recently while she has been dealing with a broken femur. She told the Tribunal that she intended to maintain custody of JM into the future. GA gave evidence of the strong connection between the applicant and his son telling the Tribunal that the applicant maintains regular contact with JM by phone, speaking to him every couple of days, sometimes a couple of times a day. GA told the Tribunal that JM loves his father very much. GA’s evidence was that the applicant had assisted her around the house with cooking and cleaning but not so much with the day-to-day care of JM. She told the Tribunal that the applicant had not really provided any financial support however he would occasionally buy things to help out. GA stated that she was open to the applicant living with her for a brief period while he sorts himself out. GA told the Tribunal that her daughter SH, the applicant’s former partner, is not capable of looking after JM due to her ongoing health concerns.
SN also gave evidence to the Tribunal in relation to the relationship between the applicant and his son. SN told the Tribunal that she had previously seen the applicant with his son quite often at church and also sometimes accompanied by GA. SN told the Tribunal that she had not seen either GA or JM more recently and understood that GA had broken her leg and was not currently able to care for JM. However, SN told the Tribunal that she was not certain about JM’s current care arrangements and that it may be that he has since returned to GA’s care.
When asked whether or not she believed that GA was capable of looking after JM by herself, SN told the Tribunal that she did not believe that was possible over the longer term, given GA’s advancing age noting that she was about 70.
SN confirmed that she was aware that JM spoke to his father regularly by phone. SN told the Tribunal that she believed that JM really needs a father figure and that it was also important that he was available to help support JM given that GA was dealing with her own health issues and that JM’s mother, SH, also has mental health issues.
The Tribunal accepts that the applicant has a genuine love and affection for JM and that, prior to being incarcerated, he had participated actively in his life including by assisting GA in caring for him. The Tribunal accepts that the applicant has a genuine desire and commitment to playing a parental type role in JM’s life if released back into the community. The Tribunal also accepts that, notwithstanding GA’s ongoing commitment to maintaining custody of JM, given her advancing age and health issues, together with the limited capacity of JM’s own mother to participate in his care, it would be of significant assistance to GA if the applicant were able to participate in the care of JM to some degree.
In addition, the Tribunal accepts that if the applicant is unsuccessful in the present matter and is forced to return to Zimbabwe, this would have a significant adverse impact on JM by denying him the opportunity to maintain a close face-to-face relationship with his father. In that context the Tribunal accepts the evidence that the applicant previously played a positive role in JM’s life to some degree including through his assistance to GA in caring for JM, taking him on activities and playing with him. In reaching this conclusion, the Tribunal accepts that if the applicant is forced to return to Zimbabwe there is no practical impediment to the applicant maintaining contact with JM by telephone or other electronic means.
For these reasons the Tribunal is satisfied that it is in the best interests of JM for the mandatory cancellation of the applicant’s visa to be revoked. This conclusion is tempered by the limited nature of the applicant’s face-to-face relationship and capacity to provide direct care and support for JM in recent years. It is further tempered by the fact that, notwithstanding her advancing age and health concerns, GA has demonstrated a willingness and capacity to care for JM and is committed to doing so in the future. The conclusion is also further tempered by the fact, if released back into the community, the applicant himself is likely to face significant ongoing personal challenges including in managing his mental health concerns, his alcohol abuse issues, his illicit drug use and also challenges associated with finding employment, maintaining stable accommodation and generally managing his own affairs and that these challenges may limit the applicant’s capacity to provide parental type care for JM on an ongoing basis to some degree.
There was also evidence of the impact the Tribunal’s decision may have for the applicant’s niece, JA, who is approximately seven years of age and also his nephew, DY, who is approximately four years of age. They are the children of the applicant’s sister, PA, and her husband. Both JA and DY are Australian citizens who live with PA and her husband.
The applicant told the Tribunal that prior to going to prison he had played an active role in the lives of both JA and DY, taking them to the park and playing soccer with them. When asked how old they would have been when this occurred the applicant conceded that DY would have been approximately one year of age and JA would have been approximately four years of age. He conceded that he had not made any financial contribution towards their care. Neither the applicant’s sister nor her partner provided a statement to the Tribunal or gave evidence at the hearing.
Based on the evidence of the applicant the Tribunal accepts that it is in the best interests of the applicant’s niece and nephew for the mandatory cancellation of the applicant’s visa to be revoked. However, this conclusion is heavily tempered by the very limited nature of the evidence regarding the applicant’s relationship with his niece and nephew and the role that he is likely to play in their lives in the future as well as the fact that they are currently in the full-time care of their parents.
For these reasons, the Tribunal is satisfied that best interests of minor children in Australia consideration weighs significantly in favour of a revocation of the mandatory cancellation of the applicant’s visa.
The Expectations of the Australian community
Paragraph 13.3 (1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision‑makers should have due regard to the Government’s views in this respect.
The Tribunal has applied this consideration consistent with the reasoning in YNQY v Minister for Immigration and Border Protection[5] as well as the more recent Full Federal Court decision in FYBR v Minister for Home Affairs[6].
[5] [2017] FCA 1466.
[6] [2019] FCAFC 185.
In applying this consideration the Tribunal has had regard to the government’s stated views in relation to the expectations of the Australian community as set out in the Direction including, in particular, paragraph 13.3 (1) which is extracted above.
The Tribunal has been particularly mindful of the very difficult life circumstances the applicant experienced prior to his migration to Australia and the ongoing impact those circumstances have had on his mental health. The Tribunal is satisfied that these circumstances have contributed significantly to the applicant’s alcohol abuse which in turn has been a significant contributing factor in his offending. While these broad circumstances are in no way an excuse for the applicant’s offending they are relevant context to that offending and, in the Tribunal’s view, are also relevant in the assessment of this consideration. The Tribunal has also been mindful of the serious risks and other challenges the applicant would face if he was forced to return to Zimbabwe. These issues are dealt with in more detail further on in these reasons.
The Tribunal has had careful regard to the applicant’s significant record of offending which has included repeat offending and also offending that occurred shortly after his first arrival in Australia. The applicant has demonstrated a disregard for Australian law as evidenced by his multiple breaches of bail conditions as well a Community Corrections Order. In addition, the applicant continues to represent an unacceptable risk of harm to the Australian community. Notwithstanding other mitigating factors, given these considerations the Tribunal is satisfied that the expectations of the Australian community consideration weighs very heavily against a decision to revoke the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
Paragraph 14.1(1) of the Direction describes a non-refoulement obligation as “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”. The paragraph goes on to state that:
Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhumane or Degrading Treatment and Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
In light of the Tribunal’s conclusion regarding Australia owing international non-refoulement obligations to the applicant, the Tribunal accepts that a decision not to revoke the mandatory cancellation of the applicant’s visa would have the following effect:
(a)The applicant would be subject to removal from Australia as soon as it is reasonably practicable for that to occur in breach of Australia’s international non-refoulement obligations. The Tribunal accepts the representation made by the respondent that in the present circumstances there are practical impediments that would prevent the applicant’s immediate repatriation back to Zimbabwe. The representative of the respondent submitted that, based on instructions, the Australian Government’s understanding is that Zimbabwe is not currently accepting involuntary returnees from Australia, nor is it currently issuing travel documents for involuntary returnees. In addition, as a consequence of restricted air travel imposed in response to Covid19, it would not practicable for the applicant to be returned to Zimbabwe at the present time. The Tribunal accepts that the period of time during which these practical impediments would continue to exist is uncertain. The Tribunal is satisfied that for so long as these impediments remain, and the removal of the applicant back to Zimbabwe is impracticable, the applicant would continue to be held in detention;
(b)It would be open to the Minister to consider alternative management options such as the possibility of granting the applicant a visa under section 195A of the Act, although the representative of the respondent told the Tribunal that alternative management options in respect of the applicant were not under current consideration; and
(c)In accordance with section 501E(1) of the Act, while the applicant remains in Australia, he would be prohibited from applying for another visa. While section 501E(1) does not of itself prevent the applicant from applying for another protection visa, or a Bridging R (Class WR) visa, the applicant would only be able to make a valid application for a protection visa if the Minister exercised their non-compellable power under section 48B of the Act to “lift the bar” in section 48A of the Act. In addition, the applicant would only be able to apply for a Bridging R (Class WR) visa following an invitation from the Minister. In the event that the applicant was able to, and did in fact make such an application, he would spend time in immigration detention pending the outcome of the application. No representation was made by the applicant with respect to an intention to make such an application.
The Tribunal accepts that in the event the applicant continues to be held in detention he would continue to be denied his freedom of movement and would be significantly constrained in his capacity to have face-to-face contact with family and friends.
Further, the Tribunal accepts that in the event that the applicant were to be returned to Zimbabwe, the applicant would be exposed to each of the risks of harm consistent with the Tribunal’s conclusions as set out above.
For these reasons, the Tribunal is satisfied that this consideration weighs heavily in favour of revocation of the mandatory cancellation of the applicant’s visa.
Strength, nature and duration of ties
The Tribunal accepts that the applicant has resided in Australia since January 2008 and has family residing in Australia including his son, JM, his sister, PA, together with her husband and children and also the applicant’s former partner, SH, and her mother, GA. In addition, the applicant has a current partner, AN.
The impact the Tribunal’s decision will have on the children has already been addressed above. The Tribunal accepts that a decision to affirm the mandatory cancellation of the applicant’s visa will have a significant adverse impact on GA. There was evidence before the Tribunal in relation to GA’s advancing age and current health issues which include having relatively recently broken her leg. It was clear to the Tribunal that GA had depended to some degree on the support and assistance of the applicant in cleaning and cooking at her house prior to his incarceration. In addition, notwithstanding that GA told the Tribunal that the applicant had been of very limited assistance in the care of JM, the Tribunal accepts that in the event of a decision requiring the applicant to return to Zimbabwe, the applicant will be prevented from providing any level of ongoing assistance to GA in relation to the care of JM. The Tribunal accepts that any adverse impact on GA is tempered by the fact that she has the benefit of some limited alternative sources of support to help with cooking and cleaning and also by the fact that she has managed without the applicant’s assistance for some time during his current incarceration.
There was very little evidence before the Tribunal in relation to the applicant’s relationship with PA and her husband, although the applicant indicated to the Tribunal that PA continues to be supportive of him. As has been addressed earlier on in these reasons, the Tribunal accepts that the applicant has a relationship with PA’s children. The Tribunal accepts that a decision to affirm the mandatory cancellation will have an adverse impact on PA and her husband to some degree.
There was very little evidence before the Tribunal in relation to the ongoing connection the applicant has with his former partner, SH. GA told the Tribunal that the applicant’s former partner is not presently able to assist in the care of JM due to health issues. Therefore any adverse impact likely to be suffered by the applicant’s former partner as a consequence of the applicant not being able to assist in the ongoing care of JM is likely to be very limited.
Again, there was very limited evidence before the Tribunal in relation to the relationship between the applicant and his current partner AN. Nonetheless, the Tribunal accepts that in the event a decision is made to require the applicant to return to Zimbabwe, it is likely to have an adverse impact on the applicant’s relationship with AN and therefore on AN himself to some degree.
There was also very limited evidence in relation to the impact the Tribunal’s decision may have for friends of the applicant. There was some evidence before the Tribunal in relation to the applicant having a friendship with a number of people including CW, SN and also a leader of a church related youth group. CW and SN gave references in support of the applicant for the purposes of this matter. The Tribunal accepts that a decision to affirm the mandatory cancellation of the applicant’s visa will have an adverse impact on any friends of the applicant due to the difficulty the applicant will have in maintaining such friendships if he returns to Zimbabwe.
In addition, the Tribunal accepts that in the event that the mandatory cancellation is affirmed and the applicant is held in detention for a period until such time that it is reasonably practicable for him to be returned to Zimbabwe, the applicant’s family and friends will be adversely impacted to some degree as a consequence of the limited nature of the face-to-face contact they are likely to be able to have with the applicant for such period.
The Tribunal accepts that the applicant has made some contribution to the community through his previous work in the disability sector and as a labourer. In addition, the Tribunal accepts the applicant has been involved in a number of church related groups as well as indigenous heritage activities and has contributed to the community to a limited degree in that sense also. The limited contribution the applicant has made to the community is tempered further by his significant criminal record and a substantial amount of time the applicant has spent incarcerated while living in Australia. The Tribunal has also been very mindful of the fact that the applicant commenced offending relatively soon after first arriving in Australia.
For these reasons, the Tribunal is satisfied that this consideration weighs moderately in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no evidence before the Tribunal as to the impact a revocation of the cancellation of the applicant’s visa would have on any victim of his offending. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Extent of impediments if removed
There was very little direct evidence provided by the applicant to the Tribunal in relation to impediments he is likely to experience in the event that he is returned to Zimbabwe. In his Personal Circumstances Form the applicant noted his depression and anxiety as potential impediments on return. As indicated previously in these reasons, the Tribunal accepts that the applicant suffers from depression and anxiety and has also experienced some symptoms associated with post-traumatic stress disorder as well as some other physical impacts associated with his previous assault. The Tribunal also accepts that the applicant currently takes medication and has from time to time had the benefit of counselling and other forms of professional support for his mental health conditions.
The Tribunal accepts that if returned to Zimbabwe, the applicant is likely to have significantly poorer access to support services to assist with his health conditions and substance abuse issues, due to the limited nature of such support services in Zimbabwe when compared to Australia. The DFAT Country Information report states at paragraph [2.34]:
Despite considerable need, there are limited facilities and services available for those with mental health issues, and NGOs report that getting access to mental health services is generally slow and frustrating. There are few certified psychiatrists working in public and private clinics and teaching in the country. A shortage of drugs and adequately trained mental health professionals means that those with mental health issues are often not properly diagnosed and do not receive adequate treatment. Many persons with mental health issues suffer from extremely poor living conditions. There is a considerable social stigma against mental health issues, which many religious Zimbabweans regard as “spiritual” problems.
The Tribunal also accepts that given the applicant’s mental health issues and substance abuse issues as well as the difficult economic circumstances currently being experienced in Zimbabwe, that the applicant may face significant challenges in obtaining reliable employment and therefore income with which to support himself financially. This conclusion is supported by information in the DFAT Country Information Report. The Report states at paragraph [2.13]:
The country remained economically prosperous throughout the 1980s, expanding rapidly and utilising the industrial base established during colonial and UDI periods. Since then, a combination of political instability, chronic economic mismanagement, global economic fluctuations, and ongoing drought has had a major debilitating effect on the economy.
And at paragraph [2.14]:
The economy briefly recovered during the GNU era, aided by international support and the introduction of a multi-currency system with the USD as the base currency. Since 2015, however, the economy has again been in recession. Persistent shortages of foreign currency have caused shortages of basic commodities and driven the cost of everyday goods to record levels. Inflation has again risen to exceptionally high rates: while the official rate at the beginning of 2019 was 31 per cent, in itself the highest since the inception of the multi-currency regime, the IMF reported that annual inflation reached almost 300 per cent in August 2019. Ordinary citizens without access to foreign exchange have found themselves unable to pay for their basic needs. The Zimbabwe Vulnerability Assessment Committee reported in August 2018 that rural households spent 68 per cent of their income on food, with diet quality diminishing. In September 2019, the World Food Programme said that Zimbabwe was facing its worst food insecurity in recent memory, with more than five million people in need of assistance. In August 2019, power cuts reportedly averaged 18 to 20 hours a day, with most people only having mains power in a 2200 to 0400 hour window, while many areas also suffered from water shortages. Economic hardship has caused considerable social agitation and labour unrest (see Trade Unionists), which reached a peak after the government’s announcement in January 2019 that fuel prices would rise by 150 per cent (see Political Opinion (actual or imputed)).
And at paragraph [2.18]:
DFAT assesses that poor economic and employment opportunities act as a significant “push factor” for emigration from Zimbabwe.
However, any difficulty the applicant may have in securing reliable employment is tempered to some degree by his relatively young age. In addition, the applicant has attained a relatively high level of education, secured relevant employment qualifications and has some level of both Zimbabwean and Australian work experience which will enhance his employment opportunities. The applicant also has the benefit of some level of family support. The applicant told the Tribunal that he has maintained contact with both his biological father and mother who both reside in Zimbabwe. In addition, the applicant told the Tribunal that he has other wider family living in Zimbabwe although there was no detail in relation to the extent of contact has maintained with wider family members.
Having been raised in Zimbabwe, the Tribunal is not aware of any cultural or language impediments the applicant is likely to suffer, although given the significant passage of time since he last lived in Zimbabwe, the Tribunal accepts that transitioning back into life in Zimbabwe will present significant challenges for the applicant. In addition to financial and health challenges referred to above, the applicant may also have some difficulty in accessing appropriate accommodation, accessing government services and readjusting to a way of life which is substantially different to that he has experienced while living in Australia. Again, such challenges are tempered to some degree by the potential for some level of support from the applicant’s mother and father as well as also potentially other wider family members residing there. On the other hand, the Tribunal recognises that the applicant would be forced to meet these challenges without the support of his family and friends based in Australia.
For these reasons, the Tribunal is satisfied that this consideration weighs heavily in favour of a decision to revoke the mandatory cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test as set out in section 501(6)(a) of the Act. Therefore, in accordance with section 501CA(4) the Tribunal must determine if there is “another reason” to revoke the mandatory cancellation of the applicant’s visa. The Tribunal must exercise its discretion in accordance with the Direction.
In exercising its discretion, the Tribunal has carefully weighed each of the considerations as described above. There is no question there are significant competing considerations relevant to this matter. The Tribunal has been very mindful of the adverse impact a decision not to revoke the mandatory cancellation would have for the applicant’s family including, in particular, his son JM. While the applicant has had a somewhat disrupted connection with his son due to his incarceration and personal circumstances, there is no question in the mind of Tribunal that the applicant has a genuine connection to his son and that, based on the evidence presented, JM has a genuine love and affection for his father. While the applicant’s personal circumstances present challenges with respect to the capacity he has to engage with JM and provide care and support for him in the future, the Tribunal is satisfied that the applicant has a genuine want to engage substantially in the life of his son and his capacity to do so would be very substantially impacted in the event he is forced to return to Zimbabwe. In addition, while the applicant’s capacity to be able to assist GA with cooking and cleaning and also with the care of JM is likely to be impacted to some degree by his ongoing mental health and substance abuse issues, he will effectively have no capacity to provide such support in the event of a decision that requires him to relocate back to Zimbabwe.
In weighing up the various considerations, the Tribunal has been particularly mindful of the risks and challenges that the applicant would face if he was forced to return to Zimbabwe. The significance of those risks and challenges is certainly not lost on the Tribunal. The Tribunal accepts that if the applicant is to return to Zimbabwe then, as a consequence of his former activities with the MDC, he would face a very real risk of serious harm in the forms described earlier in these reasons. In addition, notwithstanding the absence of any substantial language or cultural barriers, the applicant is likely to face very real challenges in a transition back into day-to-day life in Zimbabwe. The applicant has been absent from Zimbabwe for a significant period of time and the economic circumstances faced in Zimbabwe are extremely difficult, which will impact on the capacity of the applicant to secure reliable employment and therefore his capacity to be able to financially support himself. These challenges are exacerbated significantly as a consequence of the applicant’s mental health and other health conditions and his ongoing substance abuse issues. The level of support the applicant will receive through government or other private means to assist in the management of these issues is likely to be very limited. In addition, the applicant will be forced to face these challenges without the support of family and friends he has here in Australia.
Further, the Tribunal recognises that in the event that a decision is made not to revoke the mandatory cancellation of the applicant’s visa it is likely that the applicant would continue to be held in detention for a period of time until it becomes reasonably practicable for him to be relocated back to Zimbabwe. Again, the Tribunal is mindful of the significant ongoing impact this will have for the applicant in relation to his freedom of movement and also his capacity to maintain face-to-face contact with family and friends during any such period.
There are, however, significant factors that work against the applicant in this matter. There is no question in the mind of the Tribunal that the applicant’s criminal record is significant and involves serious offending including, in particular, his serious driving offences. The Tribunal is satisfied that the applicant has not demonstrated full insight into the significant role his alcohol abuse issues have played in his offending. The Tribunal is satisfied that those issues are not fully resolved. The Tribunal is satisfied that the risk of the applicant engaging in further alcohol abuse is high and that should he do so the risk of him reoffending again in a similar manner is also high. The Tribunal is satisfied that if the applicant were to reoffend again in a similar manner there remains a real risk of grave consequences for innocent members of the Australian community as a result of such offending. In the Tribunal’s view that risk is an unacceptable one. In addition, there is no question of the mind of the Tribunal that the expectations of the Australian community consideration weighs heavily against the applicant in this matter.
For these reasons, the Tribunal is satisfied that in weighing all of the relevant considerations the balance falls in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the respondent dated 18 February 2020 to not revoke the mandatory cancellation of the applicant’s Class XA Subclass 866 Protection visa.
I certify that the preceding 175 (one hundred and seventy-five) paragraphs are a true copy of the written reasons for the decision of The Hon. Matthew Groom, Senior Member.....[sgd]................................................
Associate
Dated: 4 June 2020
Date of hearing:
12 May 2020
The Applicant:
In personAdvocate for the Respondent: Hervee Dejean Solicitors for the Respondent: Australian Government Solicitor
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