Maryvan and Minister for Home Affairs (Migration)
[2019] AATA 4951
•21 November 2019
Maryvan and Minister for Home Affairs (Migration) [2019] AATA 4951 (21 November 2019)
Division:GENERAL DIVISION
File Number(s): 2019/5634
Re:Athi Maryvan
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:21 November 2019
Place:Sydney
The decision of the delegate dated 27 August 2019, to not revoke the mandatory cancellation of the Applicant’s Subclass 101 Child (Permanent) visa is affirmed.
...........................[SGD].............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation of the Applicant's Subclass 101 Child (Permanent) visa – s 501(3A) – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – s 501CA – application of Direction No. 79 – mental health of the applicant – mental healthcare available in Laos – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA,
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
Harm Reduction International, Global State of Harm Reduction 2018 - Regional Overview - Asia, available online:
Harm Reduction International, Joint Submission to the Working Group for the Universal Periodic Review - Third cycle 35th Session - January / February 2020 - Lao People's Democratic Republic, 18 July 2019, available online: General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations.
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations.UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations.
REASONS FOR DECISION
Senior Member Linda Kirk
21 November 2019
Mr Athi Maryvan (‘the Applicant’), a citizen of Laos, was born in 1988.[1] He was granted a Subclass 101 Child (Permanent) visa on 22 August 2005,[2] and entered Australia in the same year as a 17 year old minor.
[1] Exhibit R1, 1.
[2] Exhibit R1, 14
On 5 December 2018, the Applicant was convicted in the Local Court of New South Wales at Liverpool of the offences Larceny value <= $2000, Shoplifting <= $2000 and Dishonestly obtain financial advantage etc by deception (attempt) and was sentenced to 12 months’ imprisonment with a three month non-parole period.
On 14 February 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[3] On this date, the Applicant was serving a sentence of full-time imprisonment at Goulburn Correctional Centre in New South Wales.
[3] Exhibit R1, 64-73.
On 27 February 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[4]
[4] Exhibit R1, 35-38.
On 27 August 2019, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[5] The delegate was not satisfied the Applicant passed the character test, nor that there was another reason why the cancellation decision should be revoked. The Applicant was notified of the decision on 28 August 2019.
[5] Exhibit R1, 10-23.
The Applicant lodged an in-time application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of this decision on 9 September 2019.[6]
[6] Exhibit R1, 1-9.
The matter was heard by the Tribunal at a hearing in Sydney on 7 November 2019. The Applicant attended the hearing in person and was self-represented. The Applicant was assisted by an interpreter in the Laotian and English languages.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 22 October 2019;
·G documents (pages 1 – 107) – Exhibit R1;
·Extracts from summons material (pages 1 – 271) – Exhibit R2
·Department of Home Affairs – Standard Q&A report – Laos – Mental healthcare and drug abuse support services dated 29 October 2019 – Exhibit R3.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter provide the framework within which the considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
1The 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.
The following Principles are set out in paragraph 6.3:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2The 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.
3A 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 forfeit the privilege of staying in Australia.
4In 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.
5Australia 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.
6Australia 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.
7The 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.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The Other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[7] the Full Court of the Federal Court of Australia made the following observations in relation to s 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are whether:
(a)the Applicant passes the character test; and
(b)there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Criminal history and other conduct
The Applicant’s criminal record comprises 28 convictions over a nine year period from 2010 to 2018 as follows:
·11 convictions relating to larceny, shoplifting or stealing, or dealing with suspected stolen property
·7 convictions for enter property without consent
·5 convictions for drug related offences
·3 convictions for destruction of property
·1 conviction for having custody of a knife in a public place, and
·1 conviction for travelling or attempting to without a valid ticket.
A National Police Check Results Report in relation to the Applicant dated 3 May 2019 records the following convictions and outcomes.[9]
[9] Exhibit R1, 24-27.
Date
Offence
Outcome
5 December
2018
Larceny <= $2000
Imprisonment: 12 months
Dishonestly obtain financial advantage etc by deception (attempt)
Imprisonment: 12 months
Possess prohibited drug
Imprisonment: 2 months
Shoplifting <= $2000
Imprisonment: 12 months
Enter vehicle or boat without consent
Section 10A conviction with no other penalty
Enter inclosed land – 2 counts
Section 10A conviction with no other penalty
27 September
2018
Destroy or damage property <=
$2000
Community correction order: 12 months (with conditions)
Called up 5 December 2018
(imprisonment: 2 months)
14 June 2018
Destroy or damage property <=
$2000
Section 9 bond: 12 months (with conditions)
Called up 27 September 2018 (12 months community corrections order (with conditions)
Called up 5 December 2018
24 April 2018
Enter vehicle or boat without consent
Section 10A conviction with no other penalty
Larceny <= $2000
Imprisonment: 1 month
Enter inclosed land
Section 10A conviction with no other penalty
11 April 2018
Custody of knife in public place
Fine imposed
13 September
2017
Goods in personal custody suspected being stolen (not m/v)
Imprisonment: 4 months
Enter inclosed land
Section 10A conviction with no other penalty
5 July 2017
Destroy or damage property <=
$2000
Section 9 bond: 12 months (with conditions)
Called up 13 September 2017: 9 months suspended sentence
Called up 24 April 2018
(imprisonment: 9 months)
1 June 2017
Enter prescribed premises
Fine imposed
Enter inclosed land
Fine imposed
22 March
2017
Shoplifting
Imprisonment: 1 month
22 February
2017
Shoplifting <= $2000
Imprisonment: 2 months
31 January
2017
Possess prohibited drug
Imprisonment: 1 month
Travel or attempt to without valid ticket – adult
Section 10A conviction with no other penalty
Shoplifting
Imprisonment: 2 months
4 November
2015
Shoplifting
Section 9 bond: 12 months (with conditions)
Called up 8 July 2016
19 August
2013
Possess/ attempt to, prescribed restricted substance
Fine imposed
24 November
2010
Possess prohibited drug
Section 9 bond: 18 months
10 March
2010
Shoplifting
Section 10 bond: 12 months
Possess prohibited drug
Section 10 bond: 12 months
Goods in personal custody suspected being stolen (not m/v)
Section 10 bond: 12 months
The following information is before the Tribunal in relation to these offences.
Theft, offences of dishonesty, knife and trespass offences
On 5 December 2018, the Applicant was convicted of offences that arose out of his conduct over a one week period from 1-8 November 2018:
·On 1 November 2018, the Applicant stole a mobile phone, wallet and contents from a parked car and tried to use a debit card in the wallet to make purchases. He was located by police when reported for using illicit drugs.[10]
·On 5 November 2018, the Applicant was reported sleeping on a couch on the balcony section of the victim's ground floor unit. He was also found in possession of cannabis.[11]
·On 6 November 2018, the Applicant was found in a vacant garage in an area secured by fences. When encountered by police, he said he was sleeping before getting his methadone. The police observed syringes and empty clear satchel bags on the premises.[12]
·On 8 November 2018, the Applicant stole a new phone from a store in Westfield Liverpool.[13]
[10] Respondent’s SFIC para 12.1.
[11] Exhibit R2, 13.
[12] Exhibit R2, 13.
[13] Exhibit R2, 12.
These offences were committed in apparent breach of the Applicant's parole conditions.[14]
[14] Exhibit R2, 202-203.
In his sentencing remarks, Magistrate McAnulty decided to impose sentences of imprisonment, noting that the Court had previously tried to put the Applicant on bonds over a period of time with supervision, but Community Corrections had sent them back because he either ‘cannot turn up or did not turn up or forgot to turn up’ and he continued to offend.[15] In respect of the theft of the phone from the store, theft of items from the car, and attempting to use the debit card, Magistrate McAnulty decided it was appropriate to sentence the Applicant to 12 months’ imprisonment, with a three month non-parole period.
[15] Exhibit R1, 30.
On 23 April 2018, the Applicant stole a GPS from a car parked in the carpark at Westfield Liverpool.[16] At the time the Applicant was subject to a one year banning notice not to enter Westfield Liverpool imposed on 15 July 2017 after he was seen attempting to open car doors in the car park.[17] This resulted in three convictions on 24 April 2018 for enter vehicle without consent, larceny and enter inclosed land. The Applicant was sentenced to one month imprisonment in respect of larceny, and s 10A convictions in respect of the other two offences.[18]
[16] Exhibit R2, 21.
[17] Exhibit R2, 34.
[18] Exhibit R1, 26.
On 11 March 2018, the Applicant was reported to have had a knife in a BP station. When questioned by police, the Applicant said he carried it for protection and would not hurt anyone if they do not hurt him.[19] On 11 April 2018, the Applicant received a fine in respect of this offence.[20]
[19] Exhibit R2, 23.
[20] Exhibit R1, 26.
On 13 August 2017, the Applicant was seen pulling on the door handles of cars in the carpark at Westfield Liverpool, one month after he was banned from entering the premises.[21] This led to as 10A conviction for enter inclosed land.[22]
[21] Exhibit R2, 33-34.
[22] Exhibit R1, 26.
On 13 July 2017, the Applicant was found with six boxes of L'Oreal cream which were suspected of being stolen. When questioned, the Applicant told police he was going to sell them. The police were aware of the Applicant's history of selling similar items from local shops.[23] The Applicant received a sentence of four months’ imprisonment (suspended) in respect of goods in personal custody suspected of being stolen.[24]
[23] Exhibit R2, 35.
[24] Exhibit R1, 26.
On 1 June 2017, the Applicant was convicted of two offences: enter prescribed premises and enter inclosed land.[25] These arose out of the Applicant’s conduct over two days on 3 and 4 April 2017. On 3 April 2017, the Applicant was found inside abandoned premises owned by the Department of Housing which had been broken into. The Applicant was informed he was trespassing and not to re-enter the premises.[26] On 4 April 2017, the Applicant was again found trespassing in abandoned premises.[27] The police notes record that the Applicant had been warned the week prior (31 March 2017) that he could not be inside the unit.[28] The Applicant was given fines in respect of these convictions.
[25] Exhibit R1, 26.
[26] Exhibit R2, 36-37.
[27] Exhibit R2, 37.
[28] Exhibit R2, 37-38.
On 11 January 2017, the Applicant shoplifted items from a Chemist Warehouse in Liverpool.[29] On 22 February 2017 the Applicant received a sentence of two months’ imprisonment in respect of shoplifting.[30]
[29] Exhibit R2, 39.
[30] Exhibit R1, 27.
On 29 December 2016, the Applicant stole cosmetics or beauty products from Woolworths in Fairfield.[31] On 31 January 2017 he received a sentence of one month imprisonment for the offence of shoplifting.[32]
[31] Exhibit R2, 40-41.
[32] Exhibit R1, 27.
On 8 December 2016, the Applicant stole perfume from Chemist Warehouse.[33] This was discovered during a search after he presented at a police station, saying that voices were telling him to harm himself and others. The Applicant received a sentence of one month imprisonment in respect of shoplifting.[34]
[33] Exhibit R2, 43.
[34] Exhibit R1, 27.
On 10 October 2015, the Applicant stole earphones from JB Hi-Fi.[35] In respect of this offence he was sentenced to a section 9 bond on 4 November 2015,[36] which was later called up.
[35] Exhibit R2, 52-53.
[36] Exhibit R1, 27.
On 2 March 2010, the Applicant stole batteries from Woolworths in Fairfield. When searched, the Applicant was found with a small amount of white powder, which he said was buprenorphine that he had purchased from an unknown male. When interviewed by police, the Applicant stated that he was currently homeless and living on the streets. He said he may be able to live with his father, but when his father was contacted he said he did not want the Applicant living with him 'as he was "bad" and had stolen money from them in the past'.[37] In respect of this offence the Applicant was convicted of shoplifting, possess prohibited drug and goods in personal custody suspected of being stolen. He received s 10 bonds in respect of each offence.[38]
[37] Exhibit R2, 77
[38] Exhibit R1, 27.
Drug offences
On 3 December 2016, the Applicant was stopped by police after loitering. The police observed his eyes were glassy and his appearance was indicative of drug use.[39] When searched, the Applicant was found in possession of and admitted to possessing methylamphetamine (‘ice’). On 31 January 2017, he was sentenced to one month imprisonment in respect of this offence.[40]
[39] Exhibit R2, 44.
[40] Exhibit R1, 27.
On 11 July 2013, the Applicant was found with two Valium tablets for which he did not have a prescription.[41] The police report states the Applicant confirmed that he did not have a prescription for the Valium and was still using illegal drugs. On 19 August 2013 the Applicant received a fine in respect of this offence.[42]
[41] Exhibit R2, 58.
[42] Exhibit R1, 27.
On 14 October 2010, the Applicant was found in possession of ice which he had just purchased.[43] On 24 November 2010 the Applicant was given a s 9 bond in respect of this offence.[44]
[43] Exhibit R2, 72.
[44] Exhibit R1, 27.
Property damage
The Applicant was convicted on three occasions of property damage. On each occasion, he kicked a parked car and damaged the side mirror. These offences occurred on 1 July 2017,[45] 15 March 2018,[46] and 30 August 2018.[47] On the date of the first of these offences, the Applicant told the police that he has schizophrenia and was on medication, and ‘the voices told him to do it.’[48] The third offence was committed in apparent breach of the Applicant’s parole conditions.[49] On each occasion the Applicant was placed on a bond which was later ‘called up’ due to his further offending.
[45] Exhibit R2, 35-36.
[46] Exhibit R2, 22-23.
[47] Exhibit R2, 18.
[48] Exhibit R2, 35-36.
[49] Exhibit R2, 198-199.
In his sentencing remarks on 13 September 2017 in relation to the destroy or damage property offence, Magistrate McAnulty agreed to suspend the nine month term of imprisonment upon the Applicant signing a bond to agree to stay out of trouble for this period. The Magistrate told the Applicant that if he reoffends during this period he will go to gaol.[50] The Applicant was asked about these remarks during cross-examination at the Tribunal hearing and he said he did not remember them.[51]
[50] Exhibit R1, 33-34.
[51] Transcript p13.
Transport offences
The Applicant has been issued transport infringement notices on at least 15 occasions in the period from 2010 to 2018, most of which were for travelling or attempting to travel without a valid ticket.
Drug addiction
The Applicant told the Tribunal that he was already using drugs, specifically speed, before he came to Australia.[52] Shortly after he arrived in Australia he started using both ice and heroin.[53] The Applicant confirmed that he told one of his parole officers that his schizophrenia developed after he started using ice.[54]
[52] Transcript p8.
[53] Transcript p8.
[54] Transcript p8.
The Applicant said he has been taking methadone for about seven or eight years. He is currently taking 110 milligrams (22 millilitres).[55] He reduced his dose of methadone to 30 milligrams when he was in prison the first and second time. In 2016 he was on 50 milligrams of methadone but he was still using speed and heroin.[56]
[55] Transcript p9-10.
[56] Transcript p11.
The Applicant agreed that he was using ice up until he went to prison in December 2018. At this time he was also taking 100 milligrams of methadone.[57]
[57] Transcript p18-19.
The Applicant told the Tribunal that he has not used drugs since he has been in prison. He agreed that in the past he has gone through periods when he was not using drugs and then he resumed taking them again.[58] He said that he would like to change himself and will try to do his best. He is getting older and cannot keep doing things the same way.[59]
[58] Transcript p12.
[59] Transcript p12.
The Applicant was asked about his participation in an EQUIPS program when he was in gaol. He said he only did this program for a short period, about three of four weeks, and did not complete it.[60] He agreed that he told his parole officer that being in custody enabled him to get healthy, and he prefers to be on supervision while out in the community.[61]
[60] Transcript p18.
[61] Transcript p19-20.
Mental illness
The Applicant has been diagnosed with schizophrenia and is currently taking antipsychotic medication, Olanzapine (Zyprexa), which he takes morning and night. He said this medication is working well and he no longer hears voices and he is not thinking of using drugs. He has been taking this medication for four or five years.[62]
[62] Transcript p28.
Employment history
During cross-examination, the Applicant was questioned about his employment history. He told the Tribunal that he worked at a farm and in a laundry for about six years and received cash in hand.[63] He said he started work at the laundry in about 2010-11. The work was not continuous and he would work for a while and then stop and he would receive a call back if it got busy. The last time he worked was in 2016-17.[64]
[63] Transcript p14. See also Exhibit R1, 50.
[64] Transcript p17.
Conduct in Prison
On 11 June 2018, a search of the cell occupied by the Applicant revealed a smoking implement (bong) and spark-up device (fashioned from two razor blades that were blackened at one end). The Applicant pleaded guilty to two correctional centre offences: create or possess prohibited goods and possess drug implement.[65] In his oral evidence, the Applicant said that he used the bong to smoke a nicotine lozenge.[66]
[65] Exhibit R2, 182- 191
[66] Transcript p21.
On 4 February 2019, while assisting with kitchen muster, the Applicant attempted to take cold meat (500g) away in his underwear. The Applicant pleaded guilty to one count of stealing.[67]
[67] Exhibit R2, 192-197
Plans for the future
The Applicant told the Tribunal that if he is released into the community he wants to work and he will take any job available. He does not want to waste any more time.[68]
[68] Transcript p28-29.
The Applicant was asked where he would live if he were released. He said he would stay wherever he can find a place to sleep. He wants to try and get back his Department of Housing accommodation, but in the short term he will stay with friends.[69]
[69] Transcript p29.
Relationship with family members
The Applicant confirmed that he has not been living with his family for a long time. His father and brother are in Australia. His father lives in Liverpool and his brother lives in Orange. He speaks on the phone to his brother and father every few days. They did not visit him in prison nor do they visit him at Villawood. His other family members are his step mother and step brother, aunts and uncles on both sides, and he has close friends.[70]
[70] Transcript p26-27.
The Applicant told the Tribunal his mother and older sister live in Laos, but he does not have any contact with them.[71] He has not had contact with his mother since he was six years old, and he has not been in contact with his sister for ten years.[72]
[71] Transcript p25.
[72] Transcript p27.
Concerns about return to Laos
In the Personal Circumstances Form dated 21 February 2019, the Applicant stated the following in relation to his concerns about returning to Laos:
I don’t have any support in Laos and I don’t know anything about the country. My mental health would suffer if I were to go back to Laos.[73]
[73] Exhibit R1, 52.
In relation to any other problems he would face on return to Laos the Applicant wrote:
No support
No mental health plan or support or treatment.[74]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[74] Exhibit R1, 52
1) Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 5 December 2018 the Applicant was convicted in the Local Court of New South Wales at Liverpool of three offences and sentenced to twelve months’ imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a) as he has “a substantial criminal record” as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, the Applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution, for an offence against a law of the State of New South Wales.
For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
2) Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1When 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) directs that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
a) Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminal conduct and the risk posed should he commit further offences, the Tribunal notes that the Applicant has a lengthy criminal history. His offending has included larceny, shoplifting, offences of dishonesty, knife and trespass offences, property damage, and drug offences.
Having regard to paragraphs 13.1.1 (e) and (f) of the Direction, the Tribunal finds that the Applicant’s criminal offending was persistent over a nine year period from 2010 to 2018, and the cumulative effect of his repeated offending is significant. His offending increased in frequency during this period in that between 2010 and 2015 the Applicant appeared before the court on four occasions, whereas in the period between 2017 and 2018 he was before the court on 11 occasions.
The Tribunal has had regard to the sentences imposed by the courts for the Applicant’s crimes as required by paragraph 13.1.1(1)(d) of the Direction. The Applicant was sentenced to terms of imprisonment on multiple occasions in 2017 and 2018 which indicates the seriousness of his offending. The imposition of a custodial term is the penalty of last resort in the sentencing hierarchy and is reserved for conduct which is considered particularly serious: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]. The terms of imprisonment to which the Applicant was sentenced in 2017 and 2018 are an indication of the objective seriousness of his offences.
The Tribunal finds that the level of the Applicant’s offending is not at the most serious end of the scale in that it has not involved violence or physical assaults against others. However, it has been of sufficient seriousness to warrant a judicial officer imposing terms of imprisonment on a number of occasions. Furthermore, the Applicant has demonstrated limited insight into his offending, and he has failed to appreciate and take advantage of opportunities granted to him to remain out of gaol. Despite being warned by the Magistrate in September 2017 that if he were to reoffend in the following nine months he would be sent to gaol, the Applicant went on to commit further offences.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct, while not violent, has been consistent and of increasing frequency during the nine years of his offending history and is therefore objectively serious in nature.
b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
1In considering the risk to the Australian community, decision-makers 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 the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend as required by paragraph 13.1.2(1)(a) the Tribunal finds that any future re-offending by the Applicant is likely to include damage or loss of property of members of the community.
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct as required by paragraph 13.1.2(1)(b), the Tribunal has had regard to the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision[75] and his evidence to the Tribunal.
[75] Exhibit R1, 49.
The Applicant’s criminal history shows that he has been given numerous opportunities by judicial officers, including in the form of good behaviour bonds and a suspended sentence, but these did not lead him to address the causes of his criminal conduct and cease offending. The Tribunal has noted the sentencing remarks of Magistrate McAnulty on 5 December 2018 that in the past the Court had tried to put the Applicant on bonds over a period of time with supervision, but that these were sent back by Community Corrections because he either ‘cannot turn up or did not turn up or forgot to turn up’ and he continued to offend.
The Applicant claims that he is now stable on methadone and will not reoffend.[76] He claims that his mental health issues have impacted on his offending behaviour and he is now on anti-psychotic medication which has stabilised his condition.[77] He further claims that he hopes to complete programs to address his ‘offending behaviour of the past’.
[76] Exhibit R1, 49.
[77] Exhibit R1, 49.
The Tribunal accepts that the Applicant has been on a methadone program for many years and that he has continued to take methadone at a high dose to counter his drug dependency while in prison and immigration detention. However, despite being on such a program since as far back as 2012, the Applicant’s offending has not reduced but has rather escalated in frequency. The Tribunal cannot therefore be satisfied that the Applicant’s continuation of the methadone program will ensure that he does not continue to reoffend.
The evidence before the Tribunal is that the Applicant commenced but did not complete the EQUIPS course while in gaol. Records of the NSW Department of Corrective Services record that on 9 October 2018 the Applicant was assessed as not suitable for EQUIPS as he had stated it was not a good idea to put him on group programs due to his mental health, as being in a group setting will make him paranoid and his ‘voices’ might tell him to do something.[78]
[78] Exhibit R2, 168.
The Tribunal accepts that the Applicant is currently taking anti-psychotic medication which has stabilised his mental health condition. However, it notes that the Applicant has been taking this medication for four or five years, yet his most serious offending in 2018 for which he was sentenced to 12 months imprisonment occurred while he was on this medication. Accordingly, the Tribunal cannot be satisfied that the fact that the Applicant is taking medication for his mental condition will mean that he will be unlikely to reoffend.
On the basis of the limited evidence that the Applicant has taken positive steps to engage in programs to promote his rehabilitation, and the evidence that the Applicant is on medication to address his drug addiction and mental health condition, the Tribunal cannot be satisfied that there is little or no risk of the Applicant re-offending in future.
There is no evidence before the Tribunal that the Applicant has arranged or is seeking the professional support and/or treatment he will need on release to ensure that he does not continue to engage in criminal offending. In the absence of such evidence the Tribunal cannot be satisfied that the Applicant will take the steps necessary to ensure he does not continue commit offences that will cause harm to the Australian community.
In making the finding that there remains a risk that the Applicant will reoffend, the Tribunal has had regard to the very limited family support available to the Applicant to give him the encouragement and assistance he will need to commit to undertaking programs and treatment necessary to address the underlying causes of his offending behaviour and to ensure he does not engage in future criminal conduct.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low to middle end of the scale.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. The evidence before the Tribunal is that there are no minor children whose best interests would engage this Primary Consideration.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) states:
1The Australian community expects non-citizens to obey Australia’s 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.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Justice Mortimer observed in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Justice Bromwich said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.
This year, the Federal Court has delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
In FYBR, Justice Perry observed:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases ...[79]
[79] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Justice Griffiths in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a)the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b)so must all other circumstances which are relevant in a particular case.[80]
[80] at [122].
On 24 October 2019, the Full Court of the Federal Court delivered its judgment in FYBR v Minister for Home Affairs [2019] FCFAC 185, being an appeal from Justice Perry’s judgment in FYBR. The Full Court dismissed the appeal which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, Flick, Charlesworth and Stewart JJ did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Justice Flick at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the Government’s views as to the expectations of the Australian community and to this extent it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the Government. As she stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek via this device ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are to be applied in every case but they are not expressed in relation to any case. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
In Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[81]
(b)The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[82]
(c)The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[83]
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[84]
[81] Afu at paragraph [85].
[82] FYBR at paragraph [42]
[83] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[84] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Having regard to the expectation of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and judicial orders and has been convicted of a number of offences in Australia. Despite having been given repeated chances by the courts, he has continued to offend and has made no real attempt to address any of his underlying behavioural issues. The Applicant has breached the expectation that non-citizens obey Australian laws while in Australia.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 7 which provides:
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.
The evidence before the Tribunal is that the Applicant came to Australia as a minor at the age of 17 years and has spent the past 14 years in Australia. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time. However, the Applicant commenced offending just five years after arriving in Australia, and continued to offend often and with increased frequency for the following nine years.
The Tribunal has had regard to the contribution made by the Applicant to the community. It finds that his employment record is limited and indicates he only worked on an irregular basis for a period of no more than six years during his 14 year stay in Australia. The limited time the Applicant has spent making a positive contribution to the Australian community is relevant to determining the expectations of the Australian community in relation to whether he should continue to hold a visa despite his serious offending. There is no evidence that the Applicant has made any other contribution to the community through, for example, volunteer work or membership of clubs or other organisations. The Tribunal finds that the Applicant’s limited engagement with the Australian community during his 14 year residence in Australia does not support a finding that the expectations of the Australian community would be that he continue to hold a visa to remain in Australia.
Also relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory cancellation of the Applicant’s visa on the Applicant’s family members. Whereas the Applicant claims that his father and brother ‘would be very sad and would miss [him] and worry about [him] if [he] had to leave Australia’ there is no supporting evidence from the Applicant’s father or brother before the Tribunal, for example letters of support, to substantiate this claim.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C does not support the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘Other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Justice Colvin observed in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594at [23]:
... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
a) International non-refoulement obligations
The Applicant made no submissions that he engages Australia’s international non-refoulement obligations. The Tribunal has however considered below his claims that he will face impediments on return specifically in relation to access to treatment for his drug addiction and mental health condition.
b) Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has been in Australia for a period of 14 years. He arrived in Australia to join his father, and his brother and step-mother also reside here. The evidence before the Tribunal is that the Applicant has not lived with his family for a considerable period of time and there have been occasions when he has been homeless and living on the street. Whereas he now is in regular phone contact with his brother and father, there is little evidence that he is close to them or that they would be significantly impacted by his absence. The Applicant’s evidence is that if he were to return to the community he would live with friends until he could find a permanent place to stay. There is evidence before the Tribunal that the Applicant's father said he was not willing to have the Applicant live with him following his release from gaol.[85]
[85] Exhibit R2, 176
Whereas the Applicant claims that his father and brother ‘would be very sad and would miss [him] and worry about [him] if [he] had to leave Australia’ there is no supporting evidence from the Applicant’s father or brother before the Tribunal, for example letters of support. Nor is there evidence from them to explain the impact on them of the Applicant's removal from Australia.
There is no evidence before the Tribunal of the Applicant’s other connections to Australia. He claims to have many friends in Australia however there is no evidence of the impact on these friends of the Applicant’s return to Laos.
On the basis of the evidence before it, the Tribunal finds that the Applicant has some ties to Australia by virtue of the length of time he has resided here and his familymembers, and therefore this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
1Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery an important service in Australia.
There is no evidence of and the Applicant does not claim that any Australian business interests would be affected by the non-revocation of the Mandatory Visa Cancellation Decision.
(d) Impact on victims
Paragraph 14.4(1) of the Direction states:
1Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Respondent has not submitted any evidence relation to the impact that the Applicant’s continued presence in Australia would have on the victims of his offences. The Tribunal therefore makes no findings in relation to this consideration.
(e) Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
1The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant states he is unfamiliar with Laos and has no family there. He also says he has no support in Laos and his mental health would suffer if he were required to return.
Having regard to the considerations in paragraph 14.5(1)(a), there is limited evidence before the Tribunal as to the current state of the Applicant’s mental health condition. Health records from the Applicant’s period in immigration detention indicates that he is on medication for schizophrenia, and that he has denied hearing voices or having any suicidal tendencies, and that he felt his current medication 'is really suiting him'.[86] There are no independent psychiatric or other psychological reports before the Tribunal.
[86] Exhibit R2, 234
The Respondent tendered a Department of Home Affairs Standard Q&A report titled Laos – Mental health care and drug abuse support services (‘Home Affairs report’) which addresses the availability and quality of mental healthcare (particularly for schizophrenia and drug abuse (particularly for heroin/ice) support services. The Respondent submitted that the report does not indicate that there is no accessibility of mental health services in Laos, and that in 2017 approximately 40% of those who reported mental health issues were able to access services.[87]
[87] Transcript p33; Exhibit R3, p2.
The Home Affairs report also notes that mental health issues are associated with stigma in Laos and there is limited community awareness of them. Further, it reports that ‘there are taboos associated with seeking treatment for someone with a mental health condition.’[88] It cites a July 2017 media report in relation to the treatment of persons suffering from mental illness in Laos:
People suffering from mental illnesses not only have to battle the disorder itself, but with the stigma from society as well. They are not only discriminated against, marginalized and shunned in their own community, but in some cases, are subjected to emotional and physical abuse in both mental health facilities and by the public. Inadequate quality care due to lack of qualified health professionals and dilapidated facilities could possible lead to further deterioration of the mental state of mind.[89]
[88] Exhibit R3, 2
[89] Exhibit R3, p2 citing ‘Majority of Mental Health Issues Remain Untreated in Laos’, The Laotian Times, 7 July 2017.
The Home Affairs report also records the limited nature of mental health programmes and support services available in Laos, and the very limited number of mental health providers. For example, in 2013, there were two psychiatrists, two neurologists, and one mental health nurse practitioner, and only 35 mental health beds in general hospital (0.06 beds per 10,000 population) and no specialist mental health hospital in the country although mental health units exist in seven out of the 16 provinces.[90] It appears that psychotropic medication is available in Laos as the report notes that only medical doctors and physician assistants may prescribe these drugs.[91] The Home Affairs Report cites a report of a mental health focussed international NGO with a presence in Laos which summarises the availability of mental health services in the country:
Of the people suffering from mental illness in the country, approximately only 0.13% has access to mental health treatment and there are only two psychiatrists serving the entire country. There are also only two psychiatric inpatient units in the country with 35 beds available in total; both are located in the main city of Vientiane Capital. The only two outpatient clinics are also located in Vientiane Capital to service the entire population of approximately 6.1 million people. Very few people with mental health issues in Laos are able to access the treatment and support they need.[92]
[90] Exhibit R3, p3.
[91] Exhibit R3, p3.
[92] Exhibit R3, p3 citing ‘Lao PDR’, Basic Needs, undated.
On the basis of the evidence before it, particularly the Home Affairs report, the Tribunal finds that the Applicant will have very limited access to the psychiatric treatment and medication he requires for his schizophrenia in Laos. The evidence before the Tribunal is that less than one percent of the population in Laos has access to mental health treatment, and there are very few mental health practitioners serving the population of some six million people. The Tribunal therefore finds that the Applicant’s health would be seriously adversely impacted upon return to Laos.
The evidence before the Tribunal is that the Applicant is currently on a methadone program and is taking a high dose (110 milligrams) to treat his opioid addiction.
In its 2018 report Global State of Harm Reduction – Regional Overview – Asia,[93] Harm Reduction International reported that in Laos there are no Needle and exchange programme sites (NSP) nor is Opioid substitution therapy (OSP), including methadone and buprenorphine, available in the country. On the basis of this evidence the Tribunal finds that the Applicant will be most unlikely to be able to continue the methadone program which has to date allowed him to reduce if not eliminate his dependency on heroin.
[93] >
The Home Affairs report notes that there are currently 20 drug treatment and rehabilitation centres throughout Laos. In addition, substance abuse care is provided by 13 community-based centres at district hospitals and there are counselling services provided through the network of hospitals, clinics, and high schools.[94]
[94] Exhibit R3, p4 citing ’ASEAN Drug Monitoring Report 2017’, Association of South-East Asian Nations (ASEAN) Narcotics Cooperation Center, August 2018.
In a Joint Submission on the Lao People’s Democratic Republic made to the Working Group for the Universal Periodic Review – Third cycle 35th session, January/February 2020 dated 18 July 2019,[95] Harm Reduction International, the International Drug Policy Consortium, and the Asian Network of People who Use Drugs, reported that in 2017 there were 12 government-run drug ‘rehabilitation’ centres in Laos, in which over 4000 people who use drugs were compulsorily detained. Since 2011, human rights bodies and NGOs have reported violations and abuses suffered by individuals in these centres, including forced urine testing and drug dependence treatment, forced labour, detention in unsanitary conditions and sexual violence.[96] The Submission notes:
‘[w]hat is formally described as treatment and rehabilitation in reality constitutes arbitrary detention following arbitrary arrest, lacking due process guarantees or judicial oversight, in a context where violence and abuse are commonplace.[97]
[95] - (‘Joint Submission’)
[96] Joint Submission p3 – see above
[97] Citing Human Rights Watch, ‘Somsanga’s Secrets: Arbitrary Detention, Physical Abuse, and
Suicide inside a Lao Drug Detention Centre (USA: Human Rights Watch, 2011); Joseph J. Amon et al.,
‘Compulsory Drug Detention Centers in China, Cambodia, Vietnam, and Laos: Health and Human Rights
Abuses” 15/2 Health and Human Rights (December 2013), 126.
On the basis of this evidence, the Tribunal finds that the Applicant will be most unlikely on return to Laos to have access to the treatment and support he requires to address his drug dependency. Furthermore, there is a not insignificant risk that he will be compulsorily detained at a government-run drug ‘rehabilitation’ centre and potentially subjected to human rights abuses.
Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take time for him to readjust to life in a country in which he has not lived for most of his life. The Applicant was 17 years old when he arrived in Australia and he completed his schooling in Laos. He is therefore familiar with the language and culture of Laos having lived there for the formative years of his life.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all Laotian citizens including health care, welfare benefits and social services.
On the basis of the evidence before it, and having regard to the factors in paragraph 14.5(1), the Tribunal finds that this consideration weighs heavily in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The consistent and frequent nature of the Applicant’s offending over a nine year period, and the low to moderate risk of him committing future offences are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C also weighs against the revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community would be that the Applicant’s frequent offending and disregard for the law and authority, together with his lack of positive contribution to the Australian community, over the 14 year period of his residency in Australia, should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh marginally in favour of revocation of the Mandatory Visa Cancellation Decision. The impediments the Applicant will face on return to Laos as a person with a mental health condition and a drug addiction are real and substantial and therefore weigh strongly in favour of the revocation of the Mandatory Visa Cancellation Decision. The Tribunal notes that the impediments that face the Applicant on return to Laos could constitute grounds for a protection visa claim by him. These impediments facing the Applicant on return to Laos also are relevant to an assessment of Australia’s international non-refoulement obligations with respect to the Applicant under the Refugee Convention, International Covenant on Civil and Political Rights and the Convention Against Torture, if he were to be removed from Australia.
Having had regard to the Primary and Other considerations in the Direction that weigh in favour and against the revocation of the Mandatory Visa Cancellation Decision, and the totality of the evidence before it, the Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
As neither of the conditions precedent to the exercise of the discretion to revoke the cancellation of the Mandatory Visa Cancellation Decision is satisfied, the Tribunal is unable to exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 141 (one hundred and forty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.................................[SGD].......................................
Associate
Dated: 21 November 2019
Date(s) of hearing: 7 November 2019 Applicant: In person Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Standing
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