MJNN and Minister for Home Affairs (Migration)
[2019] AATA 3205
•28 August 2019
MJNN and Minister for Home Affairs (Migration) [2019] AATA 3205 (28 August 2019)
Division:GENERAL DIVISION
File Number:2019/3310
Re:MJNN
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:28 August 2019
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
3 June 2019 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed..................[sgd]....................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Applicant’s Visa – character test – substantial criminal record – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to Uganda – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)(d)
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500, 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(c), 501CA, 501CA(4)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
Nathanson and Minister for Home Affairs [2019] AATA 642
NBCM and Minister for Home Affairs [2018] AATA 2387
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
QSBL and Minister for Home Affairs [2018] AATA 2074
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZTGP and Minister for Home Affairs [2018] AATA 3518
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014)Minister for Immigration and Border Protection (Cth), Direction No 75: Refusal of Protection Visas relying on section 36(1C) and section 36(2C)(b)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.5, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
28 August 2019
BACKGROUND
The Applicant is a 39 year old citizen of Uganda.
He first arrived in Australia on 5 March 1993 on a Class BF subclass 204 Transitional (Permanent) Refugee and Humanitarian (Migrant) visa (Visa), when he was 13 years of age with his aunt, older brother and three cousins.
In a letter dated 25 October 2002 from the Department of Immigration and Multicultural and Indigenous Affairs (Exhibit R1, G20, page 201), the Applicant was warned (the first warning) that, due to a conviction for which he was sentenced on 13 October 1998 (“sexual penetration of child under 16”), his Visa was liable for cancellation under s 501 of the Migration Act 1958 (Cth) (the Migration Act).
The first warning letter of 25 October 2002 (Exhibit R1, G20, page 201) stated the following:
The Minister for Immigration and Multicultural and Indigenous Affairs has decided on this occasion not to order the cancellation of your Australian permanent residence visa on the basis of this conviction. Nevertheless, you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa. Disregard of this warning will weigh heavily against you if your case is reconsidered.
On 12 November 2002, the Applicant signed to acknowledge receipt of this warning (Exhibit R1, R1, G20, page 202).
As at the date of the first warning the Applicant had been convicted of 18 adult convictions (Exhibit R3, pages 568-580; Exhibit R1, G11, pages 46-51; Exhibit R2, Annexure A - Table of the Applicant’s Criminal Record).
The Applicant was then convicted of a further 30 offences before being sent another warning letter dated 7 November 2007 by the State Director (Vic) of the Department of Immigration and Citizenship, titled “Formal Counselling Letter” (the second warning) (Exhibit R1, G21, pages 203-204). This letter contained the following warning:
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
(Original emphasis.)
In a letter dated 15 July 2016 from the Department of Immigration and Border Protection, the Applicant was advised that, on 4 September 2015, his Visa had been mandatorily cancelled under s 501(3A) of the Migration Act because he did not pass the character test due to having a substantial criminal record or because he had been convicted of a sexually based offence involving a child (Exhibit R1, G25, page 214). The Applicant was advised that he could make representations to seek revocation of the decision to cancel his Visa (Exhibit R1, G25, page 215).
By the time the Applicant’s Visa had been mandatorily cancelled on
4 September 2015, the Applicant had been convicted of a further 26 offences, amounting to 74 adult offences in total (Exhibit R3, pages 568-580; R1, G11, pages 46-51; Exhibit R2, Annexure A - Table of the Applicant’s Criminal Record).
In a letter dated 11 August 2016 to the Department of Immigration and Border Protection (Exhibit R1, G14, pages 89-103), the Applicant, through his lawyers, requested revocation of the cancellation decision. The letter enclosed a number of attachments including a personal details form, submissions, and letters in support from family members and his former partner (Exhibit T1, G14).
On 29 March 2017, the Minister for Immigration and Border Protection personally decided not to revoke the cancellation of the Applicant’s Visa. The Applicant sought judicial review of the Minister’s decision, and on 6 December 2017, the matter was remitted by consent to the Minister to be determined according to law (Exhibit R1, G22, page 205).
After considering representations from the Applicant, on 3 June 2019 a delegate of the Minister for Home Affairs (Minister) decided under s 501CA(4) of the Act not to revoke the mandatory cancellation of the Applicant’s Visa (R1, G8, page 26). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
ISSUES
The issues for determination by the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This subsection allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Migration Act not to revoke a decision to mandatorily cancel a visa.
The Applicant was advised of the Reviewable Decision in a letter to his lawyers dated
5 June 2019, which was sent by email (Exhibit R1, G8, page 23).
Section 500(6B) of the Migration Act provides that if an applicant is in the migration zone, they must lodge their application for a review of a decision made under s 501CA(4)
“within 9 days after the day on which the person was notified of the decision”.
On 12 June 2019, the Applicant lodged an application with the Tribunal requesting a review of the Reviewable Decision (Exhibit R1, G2, pages 3-4).
The Tribunal is therefore satisfied that the application was lodged within the nine day period, and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Migration Act, the Tribunal must comply with the 84 day timeframe for handing down a decision in this matter. As the Applicant, through his legal representative, received the Reviewable Decision by email on 5 June 2019, the decision must be handed down by no later than 28 August 2019.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 15 August 2019 and concluded on Friday
16 August 2019. The Applicant was represented by Mr Kristopher. The Respondent was represented by Mr Burgess, who appeared in person. Both made oral submissions to the Tribunal.
The Applicant gave oral evidence and was cross-examined. The Applicant also called his aunt, older brother, and cousin, who gave oral evidence and were cross-examined.
The Applicant’s legal representative was also given the opportunity to ask questions by way of re-direct.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 15 July 2019 with Attachments A to W (Exhibit A1);
(b)Applicant’s written submissions filed with the Tribunal 12 August 2019 with attachments (Exhibit A2);
(c)Section 501 documents (G documents) numbered G1 to G32 and comprising 289 pages (Exhibit R1);
(d)Respondent’s SFIC dated 5 August 2019 including Annexure A - Table of the Applicant’s Criminal Record (Exhibit R2);
(e)Tender Bundle comprising 994 pages (including extract of documents produced under summons from Central Law Courts, Department of Communities Child Protection and Family Support, Department of Justice and Commissioner of Police) (Exhibit R3); and
(f)
Department of Foreign Affairs and Trade Country Information on Uganda as at
16 August 2019 comprising 1 page (Exhibit T1). This information was given to the parties by the Tribunal on the second day of the hearing to give them an opportunity to make submissions with respect to English and Swahili being stated as the official languages of Uganda.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(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) 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 a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)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); or
…
(e) 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 the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)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 to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65 which was made by the Minister for Immigration and Border Protection.
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides general guidance as follows:
(1)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.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out the principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(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.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, 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.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(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.
Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in paragraph 8 of Direction No 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens 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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 13 October 1998, the Applicant was sentenced in the Perth District Court after pleading guilty to one count of “sexual penetration of child under 16” (Exhibit R3, page 577; Exhibit R1, G11, page 56). He was sentenced to two years and six months imprisonment. However, following an appeal, on 23 February 1999, this sentence of imprisonment was reduced to 18 months (Exhibit R3, page 577).
Consequently, the Applicant does not pass the character test under
ss 501(6)(a) and 501(7)(c) of the Migration Act. He also does not pass the character test under s 501(6)(e) because he was convicted of a sexually based offence involving a child.
The Applicant has conceded that he does not pass the character test (transcript, day 1, page 7).
The Tribunal must therefore now consider whether there was “another reason” why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
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 noncitizens 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…
Paragraph 13.1(2) of Direction No 79 then provides:
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.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(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)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s adult criminal history is as follows (Exhibit R3, pages 568-580; R1, G11, pages 46-51; R2, Annexure A - Table of the Applicant’s Criminal Record) (the Table of the Applicant’s Offending):
Juris.
Offence date
Result date
Offence
Result
WA
14/03/1998
13/10/1998
Sexual penetration of child under 16
Imprisonment:
18 months (appeal allowed reducing sentence from 2 years and 6 months imprisonment)WA
15/08/1999
19/08/1999
No MDL
$150 fine
Disqualification hold/obt MDL 3 months mandatory concurrent
WA
15/08/1999
19/08/1999
Excess 0.08% but less than 0.13% while driving
$1200 fine (amended from $600)
MDL cancellation and disqualification 9 months
WA
Unknown
21/12/1999
Liquor consume on premise without consent
$50 fine
WA
Unknown
21/12/1999
Liquor supply false name/address/age
$50 fine
WA
03/07/2000
09/08/2000
Possess controlled weapon
$500 fine
WA
17/08/2001
22/08/2001
Obstruct railway officer
$150 fine
WA
Unknown
22/08/2001
Unlawful remain on premises
$150 fine
WA
05/10/2001
28/11/2001
Refuse name and/or address
$100 fine
WA
05/10/2001
28/11/2001
Disorderly conduct
$100 fine
WA
Unknown
14/02/2002
Refuse name and/or address
$100 fine
WA
Unknown
14/02/2002
Disorderly conduct
$100 fine
WA
Unknown
05/04/2002
Disorderly conduct
$250 fine (global)
WA
Unknown
05/04/2002
Damage
$250 fine (global)
WA
Unknown
06/06/2002
Disorderly conduct
$200 fine
WA
Unknown
22/08/2002
Possess weapon
$250 fine
WA
Unknown
22/08/2002
Possess prohibited drug
$200 fine
WA
04/08/2002
05/12/2002
Criminal damage
$500 fine
WA
05/04/2003
10/04/2003
No MDL – under fines suspension
$300 fine
Disqualification hold/obtain MDL 3 months mandatory
WA
05/04/2003
10/04/2003
Driving under the influence
$800 fine
MDL cancellation and disqualification 6 months concurrent
WA
Unknown
03/05/2004
Breach of violence restraining order
$100 fine
WA
Unknown
03/05/2004
Breach of bail granted
$50 fine
WA
22/07/2004
31/08/2004
Assault public officer
$500
WA
Unknown
31/08/2004
Damage
6 months CRO (adult)
$200 undertaking
WA
22/07/2004
31/08/2004
Resist arrest
$200 fine
WA
22/07/2004
31/08/2004
Unlawful remain on premise
6 months CRO (adult)
$200 undertaking
WA
13/08/2004
17/08/2004
Driving under the influence
$2000 fine
MDL cancellation and disqualification 2 years concurrent
WA
13/08/2004
17/08/2004
No MDL – under fines suspension
$500 fine
MDL cancellation and disqualification 3 months mandatory
WA
01/01/2005
06/01/2005
Disorderly obscene language
$175 fine
WA
20/02/2005
24/02/2005
Give false personal details to police
$200 fine
WA
Unknown
24/02/2005
Breach of CRO (order of 31/08/2004)
$200 forfeited
WA
Unknown
24/02/2005
Breach of CRO (order of 31/08/2004)
$200 forfeited
WA
19/05/2005
24/05/2005
Possess prohibited drug
$300 fine
WA
15/09/2005
05/10/2005
Driving under the influence
$3000 fine
MDL cancellation and disqualification for life
WA
15/09/2005
05/10/2005
Possess prohibited drug
$150 fine
WA
15/09/2005
05/10/2005
No MDL – under suspension
$500 fine
MDL cancellation and disqualification 9 months cumulative
WA
30/12/2006
16/05/2006
Breach of CRO or a community order
CBO 12 months community service order 100 hour, to imprisonment:
6 months and 1 day suspendedWA
30/12/2005
16/05/2006
Suspended imprisonment sentence breached
Imprisonment:
6 months 1 day, suspended 6 months 1 day$300 fine
SIO to continue
WA
30/12/2005
16/05/2006
No MDL - under suspension
$300 fine
Imprisonment:
6 months 1 days, suspended 6 months 1 dayMDL cancellation and disqualification 9 months
WA
30/12/2005
16/05/2006
Driving under the influence
$2000 fine
MDL cancellation and disqualification for life
WA
29/04/2006
29/08/2006
Suspects and others may be ordered to move on
$200 fine
WA
10/03/2007
03/04/2008
Fail to report traffic accident (property owner present), no MDL
$150 fine
MDL disqualified s 51 3 months
Mandatory - concurrent
WA
10/03/2007
03/04/2008
Driver failing to stop after traffic accident where property was damaged, no MDL
$250 fine
MDL disqualified: 3 months mandatory, concurrent
WA
10/03/2007
03/04/2008
No driver’s licence (disqualified from holding or obtaining), second or subsequent offence, no NDL
$1,500 fine
MDL disqualified:
9 months cumulativeWA
10/03/2007
03/04/2008
Fail to give way to oncoming traffic when turning right, no MDL
$250 fine
WA
16/03/2007
08/05/2007
Refused breath test
Imprisonment:
6 months 1 day, suspended
6 monthsMDL cancellation and disqualification for life
WA
16/03/2007
08/05/2007
Refused breath test
$600 fine
MDL cancellation and disqualification 6 months concurrent
WA
16/03/2007
08/05/2007
Suspended imprisonment sentence breached
Imprisonment:
6 months 1 day, suspended
6 monthsSIO to continue
WA
23/06/2007
28/06/2007
Suspects and others may be ordered to move on
$500 fine
WA
23/06/2007
28/06/2007
Disorderly behaviour in public place
$500 fine
WA
23/06/2007
28/06/2007
Disorderly behaviour in public place
$500 fine
WA
08/08/2008
07/10/2008
No authority to drive - suspended
Imprisonment:
6 months 1 dayMDL disqualified: 18 months cumulative
WA
08/08/2008
07/10/2008
Driving under the influence of alcohol
Imprisonment:
6 months 1 dayMDL disqualified: life - concurrent
WA
25/09/2008
05/11/2008
Give false personal details to police
$500 fine
WA
06/10/2010
08/12/2010
False name and address
$300 fine
WA
06/10/2010
08/12/2010
No authority to drive – never held and disqualified
Imprisonment:
6 months 1 day imprisonment concurrentMDL disqualified: 12 months cumulative
WA
07/06/2011
01/08/2011
Stealing s 378
$250 fine
WA
18/09/2011
03/11/2011
Possess a prohibited drug (cannabis)
$300 fine
WA
24/06/2012
14/01/2013
Disorderly behaviour in public
$600 fine
WA
24/06/2012
14/01/2013
Fail to comply with request to give police personal details
$250 fine
WA
24/06/2012
13/03/2013
Obstructing public officers
$2,500 fine (global)
WA
24/06/2012
13/03/2013
Assault public officer
$2,500 fine (global)
WA
08/04/2013
22/04/2013
Disorderly behaviour in a police station
$500 fine
WA
08/04/2013
16/10/2013
Possess prohibited drug (cannabis)
$50 fine
WA
29/10/2013
30/10/2013
Breach of police order
$500 fine
WA
04/11/2013
05/11/2013
Fail to obey order given by an officer
$250 fine
WA
22/01/2013
21/05/2013
Aggravated assault occasioning bodily harm
$500 fine
WA
22/01/2014
21/05/2014
Possess a prohibited drug (amphetamine)
$200 fine
WA
29/08/2014
10/10/2014
Possess a prohibited drug (methylamphetamine)
$750 fine
WA
20/09/2014
21/09/2014
Breach of police order
$500 fine
WA
18/03/2015
20/05/2015
Breach of protective bail conditions
Imprisonment:
3 months concurrentWA
18/03/2015
20/05/2015
Breach of violence restraining order
Imprisonment:
8 months concurrentWA
18/03/2015
20/05/2015
Breach of protective bail conditions
Imprisonment:
3 months concurrent from 18/03/15
Paragraph 13.1.1(1)(a) of Direction No 79 states that “violent and/or sexual crimes are viewed very seriously”. On 13 October 1998, the Applicant was convicted of one count of “sexual penetration of child under 16”. At the time of the offending, he was 18 years of age and the victim was 13 years old, however he believed her to be 15 years of age
(see Sentencing Remarks, Exhibit R1, G11, pages 56 and 62). However, at the Tribunal hearing the Applicant claimed to be 17 years of age at the time of the offending, which is discussed below (transcript, day 1, page 13). The Applicant engaged in “consensual” sexual intercourse with the complainant during which he used a condom. As noted by Chief District Court Judge Hammond (Exhibit R1, G11, page 62):
…clearly the legislator realises that even in these situations where consent is not an issue and consent is not a defence, the law sometimes has to protect children really from themselves and to protect their interests, whether or not the children believe that to be the case.
Applying paragraph 13.1.1(1)(a) of Direction No 79, this offence must be viewed very seriously.
Paragraph 13.1.1(1)(b) of Direction No 79 further provides that “crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”. Even before the insertion of paragraph 13.1.1(1)(b) in Direction No 79,
the Tribunal regarded domestic violence related offending as being very serious in nature. The particular harms that can result from domestic violence were noted by Deputy President Dr Kendall (now Judge Kendall) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
These comments have been cited with approval in other Tribunal decisions including QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs [2018] AATA 2387 at [52]-[53].
The Respondent also referred to decisions where the Tribunal has highlighted the seriousness of domestic violence in paragraphs [40] and [41] of its SFIC, including Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601 where Senior Member Sosso stated at [53]:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed.
The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.On 21 May 2011, the Applicant was convicted of “aggravated assault occasioning bodily harm”, committed on 22 January 2014 against his former partner. At the time of this offence, the Applicant was subject to a restraining order under which this former partner was the protected person. Additionally, the Applicant was subject to protective bail conditions which were imposed because the Applicant had previously been charged with the offence of grievous bodily harm against this former partner (Exhibit R1, G10, page 53), a charge that did not progress to trial. The Applicant pled guilty to the “aggravated assault occasioning bodily harm” offence. The Statement of Material Facts (Exhibit R3, page 596) records that:
On Wednesday 22 January, 2014 between the hours of 6:00am and 6:30am the accused was at [address omitted]
The accused entered into the first floor bedroom via a window where he was confronted by the victim.
The accused grabbed the victim by her hair and pulled her onto the bed.
The accused stood over the victim and punched her twice in the face with a closed fist of his right hand.
While still on the bed the accused picked up a DVD player and holding it above his head threw it at the victim’s head striking her in the side of her left eye.
The accused then picked up a silver portable stereo and threw it at the victims head striking her on the left side of the face.
The victim kicked out at the accused and was able to eventually leave the Unit and call Police.
However the victim was approached by the accused again near the letterbox at the front of the Unit complex. The accused was brandishing an approximately one metre long wooden stick.
The accused struck the victim numerous times on the abdomen, legs and forearm.
As a result of the assault the victim sustained injuries to the effect of bruising under her left eye and on her legs, whip marks and redness to her abdomen and scratches and redness to her forearm.
The accused is male, 34 years of age, of a medium build and 175 centimetres tall.
The victim is female, 29 years of age, of a medium build and 170 centimetres tall.
The accused was arrested and conveyed to Mirrabooka Police Station.
The accused participated in an electronic record of interview and denied the offence.
EXPLANATION: (When shown a photograph of the victim’s injuries) – “She must have fallen over”
Applying paragraph 13.1.1(1)(b) of Direction No 79, the Applicant’s conviction for the offence of “aggravated assault occasioning bodily harm” is viewed very seriously by the Tribunal.
Paragraph 6.3(3) of Direction No 79 is also relevant because it states that a non-citizen who has committed a “serious crime” including crimes of a violent or sexual nature against women or children should generally expect to forfeit the privilege of staying in Australia. This principle is applicable to the Applicant’s domestic violence offending against his former partner, and his sexual offence against the 13 year old minor.
Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. As can be seen from the above Table of the Applicant’s Offending at [45], the Applicant has 17 traffic related convictions including seven convictions for driving without a licence (the Applicant has never held a valid Australian drivers licence). Included in these convictions are five convictions for “driving under the influence” and three convictions for “refused breath test”. The Applicant also has two driving offences as a minor being “excess 0.08%” and “no motor drivers licence”, both committed on 6 July 1997.
Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “…driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.”
Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) also noted the serious nature and adverse consequences of driving offences. In Bartlett, Senior Member Tavoularis stated at
[43]-[45]:43.…There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.
His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
45.The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnotes omitted.)
The comments of Senior Member Tavoularis above are applicable to the Applicant’s driving record. The Applicant’s record of repeat driving offences tends to indicate an ability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant’s record of adult offending shows that he has been convicted of numerous offences where he has resisted or assaulted police and public officers, including convictions for the following offences:
(a)“resist arrest” (31 August 2004);
(b)“assault public officer” (31 August 2004, 13 March 2013);
(c)“obstruct railway officer” (22 August 2001);
(d)“give false personal details to police” (24 February 2005, 5 November 2008);
(e)“fail to comply with request to give police personal details” (14 January 2013);
(f)“obstructing public officers” (13 March 2013);
(g)“disorderly behaviour in a police station” (22 April 2013);
(h)“Refuse name and/or address” (14 February 2002, 28 November 2001);
(i)“"False name and address” (8 December 2010); and
(j)“Fail to obey order given by an officer” (5 November 2013).
This offending behaviour shows a disregard for lawful authority, and applying 13.1.1(1)(c) of Direction No 79 should be viewed as serious. In this regard, the Tribunal further notes numerous breaches by the Applicant of court imposed orders, for example, breaches of violence restraining orders, protective bail, breaches of suspended sentences and bail (see the Table of the Applicant’s Offending above at [45]), which also tends to indicate a disregard for lawful authority.
Although the Applicant was fined $500, and was not sentenced to a term of imprisonment for the domestic violence related offence of “aggravated assault occasioning bodily harm” (on 21 May 2014) (see the Table of the Applicant’s Offending above at [45]), paragraph 13.1.1(1)(a) of Direction No 79 states that “crimes of a violent nature against women…are viewed very seriously, regardless of the sentence imposed”. Consequently, this offence is viewed very seriously.
Applying paragraph 13.1.1(1)(d) of Direction No 79, the Applicant has been sentenced to numerous terms of imprisonment including a term of 18 months (following an appeal) for “sexual penetration of child under 16” (see the Table of the Applicant’s Offending above at [45]). Although the Supreme Court of Western Australia found the initial sentence of two years and six months to be “manifestly excessive having regard to all the circumstances of mitigation” (Exhibit R1, G12, page 71), Chief Justice Malcolm (with whom Justices Ipp and Anderson agreed) nevertheless imposed a custodial sentence of 18 months.
The Applicant was subsequently sentenced to custodial terms of imprisonment of six months and one day on 7 October 2008 for driving under the influence of alcohol, and again on 8 December 2010 for six months and one day for unlicensed driving, to be served concurrently (see the Table of the Applicant’s Offending above at [45])). It is concerning that after his initial term of imprisonment for driving offences the Applicant committed further driving offences for which he received a further term of imprisonment.
Further, on 20 May 2015, the Applicant was sentenced to custodial terms of imprisonment for two counts of breach of protective bail conditions (of three months each) and a further term of eight months for “breach of violence restraining order”, to be served concurrently. A term of imprisonment is generally imposed as a last resort. In the Tribunal’s opinion, these terms of imprisonment imposed on the Applicant reflect the serious nature of the Applicant’s offending.
With respect to the trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant’s adult offending commenced in 1998 and he has consistently offended up until his latest term of imprisonment in 2015. In the Tribunal’s opinion there was a slight escalation in the Applicant’s offending with offences against public officers from 2012 and the offence of aggravated assault against his former partner in 2014.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s criminal offending commenced as a juvenile when he was convicted in the Perth Children’s Court on 7 March 1997 of “hinder police” and continued until 18 March 2015 when he committed the offences of two counts of “breach of protective bail condition”’ and one count of “breach of violence restraining order”. This demonstrates the Applicant’s lengthy history of offending spanning approximately 18 years, and which would necessarily have burdened the resources of police, corrective services, and the courts.
There is no evidence that the Applicant has provided false or misleading information to the Department by not disclosing prior criminal offending, and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(h) of Direction No 79 is applicable because prior to receiving notification of his visa cancellation, the Applicant received two separate warnings that further offending may result in the cancellation of his Visa. These warnings were detailed in paragraphs [3] through to [7] above. In summary, after receiving the first warning the Applicant was convicted of a further 30 offences. After being sent the second warning, the Applicant had been convicted of a further 26 offences by the time his Visa was mandatorily cancelled on 4 September 2015. Failing to abide by these warnings shows a disregard for lawful authority.
Paragraph 13.1.1(1)(i) of Direction No 79 is also not applicable because the Applicant has not committed any crime in prison or immigration detention.
On balance, the Tribunal finds that the Applicant’s offending is very serious and strongly weighs against the revocation of the cancellation of the Applicant’s Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In 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 rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(References omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68], that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
The nature of the harm that could result if the Applicant is to reoffend in a sexual manner, notably against a vulnerable member of the community such as a child victim, can be both physically and psychologically detrimental to the victim and may continue well into adulthood. Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal finds that the nature of harm that could result if the Applicant is to reoffend in a sexual manner is potentially very serious.
Should the Applicant commit further offences of domestic violence, assaults against public officers, or driving offences (which will be collectively referred to as general offending), members of the public could suffer physical injuries or loss of life, as well as psychological harm. Driving whilst unlicensed, or whilst under the influence of alcohol, could result in a road traffic accident and potentially loss of life or serious physical and even psychological injuries. Applying paragraph 13.1.2(1)(a) of Direction No 79, the Tribunal also finds that the nature of harm that could result if the Applicant is to reoffend in a violent manner, including domestic violence, breaches of court imposed orders such as violence restraining orders, or offences against public officers, is also potentially very serious.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).
After hearing the Applicant’s evidence, the Tribunal is concerned that the Applicant tried to minimise and to justify a number of his convictions. For example, with respect to the offence of “sexual penetration of child under 16” for which he was sentenced on 13 October 1998, the Applicant’s evidence was that he had just turned 17 years old at the time of the offence and his arrest (transcript, day 1, page 13). The Applicant’s evidence was that he was arrested nine months after the offence occurred after the victim’s mother confronted the Applicant following his involvement in the victim being driven to her school by the Applicant’s friend while the Applicant was a passenger in the vehicle. However, as was recorded in the District Court transcript of proceedings, the Applicant pled guilty to this offence (Exhibit R1, G10, page 56):
CLERK: …you stand charged… that on 14 March 1998… you sexually penetrated [name omitted], a child between the ages of 13 and 16 years. How say you? Are you guilty or not guilty?
APPLICANT: Guilty.
Further, the sentencing comments of Chief District Court Judge Hammond state that this offence occurred on 14 March 1998. The Applicant was 18 years of age at that time (Exhibit R1, G11, page 56). The date of the offence (14 March 1998) was also stated in the decision of the Court of Criminal Appeal (Exhibit R1, G12, page 64). The Court of Criminal Appeal further noted that the Applicant participated in a video interview on 2 April 1998, and was charged and remanded in custody on 3 April 1998 (Exhibit R1, G12, page 65), at which times the Applicant was 18 years of age. This evidence tends to suggest, and the Tribunal finds, that the Applicant was attempting to minimise his offending by stating that he was a juvenile (being 17 years of age) at the time of the offending.
In a handwritten statement dated 6 September 2000, the Applicant described having problems settling down including language and cultural barriers upon his arrival in Australia. He stated that he “ended up with wrong friends” and “I was too young to differentiate what was right and wrong” (Exhibit R1, G19, pages 198-199). The Tribunal is not satisfied that immaturity and troublesome peers can account for the further 15 years that the Applicant continued to offend.
The Applicant also provided explanations for some of his other offences which showed that he did not accept responsibility for his offending. With respect to his 2014 conviction for possession of methylamphetamine, the relevant Statement of Material Facts (Exhibit R3, page 598) from Western Australia Police records the Applicant stating, “Yes its mine. Its amphetamine. I was about to use it”. However, at the hearing the Applicant stated that he had, in summary, acquired the drug for his former partner, who was a drug user, to stop her from behaving erratically when she was exhibiting behavioural symptoms of withdrawal (transcript, day 1, page 19). Whereas, The Applicant did, however, admit that the cannabis he was convicted of possessing in 2013 was for his own personal use (transcript, day 1, page 19).
The Applicant also denied the offence of “aggravated assault occasioning bodily harm”, a domestic violence offence committed against his former partner, and later denied being violent towards her (transcript, day 1, page 48). He stated that he pled guilty so that he could be released from custody (transcript, page 57-58 and 59) and so that the children would not be removed into care (transcript, day 1, page 55). Additionally, the Applicant’s evidence was initially that the violence restraining orders that had been taken out against him concerned his former partner (transcript, day 1, page 48), but records produced under summons from Western Australia Police (Exhibit R3, pages 921 – 934) show that the Applicant had 13 violence restraining orders taken out against him by four women and one man.
With respect to his unlicensed and drink driving offences, the Applicant stated that his license was cancelled after his second driving offence (see the Table of the Applicant’s Offending above at [45]; transcript, day 1, page 31). He further stated that he continued to drive because he was working as a mechanic from his garage at home and needed to test the cars he was working on after hours (transcript, day 1, page 23 and 48). The Applicant also stated that, “I never killed nobody or anything” (transcript, day 1, page 46). The Tribunal also notes that the Applicant has never held a valid driver’s licence. The Tribunal finds that the Applicant does not fully appreciate the serious nature of his driving offences, which raises the likelihood of the Applicant committing further driving offences in the future.
Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. The Applicant showed some remorse and was at times teary whilst giving his evidence at the Tribunal hearing. However, the Applicant has expressed remorse in the past (see, for example, Exhibit R1, G19, page 200), and yet has continued to reoffend. The Tribunal notes that the Applicant continued to reoffend even after receiving two written warnings to the effect that any future offending may result in the cancellation of his Visa. Additionally, the Tribunal finds that in giving his evidence to the Tribunal, the Applicant consistently attempted to justify and minimise his offending behaviour which tends to indicate a limited insight into his offending, and calls into question whether his remorse was genuine, or whether he was in fact remorseful about his current predicament. If the Applicant does not accept responsibility and display insight into his offending and appreciate the seriousness of his offending and the impact of his offending on the community and on victims, there remains a possibility that he may repeat his offending behaviour in the future.
The Tribunal notes that the Applicant has stated that he has “suffered traumatic experiences” (Exhibit R1, page 208, paragraph [16]), and that “my past was full of traumas, burdens and crime” (G19, page 199). The Applicant did not specify the nature of this trauma, or any impact that it may have had on his offending. To the Applicant’s credit, he gave evidence that he attended trauma counselling through an organisation called Association of Services to Torture and Trauma Survivors (transcript, day 1, pages 21-22) which commenced in May 2018 and continued until at least 12 March 2019 (see letter from Trauma counsellor dated 12 March 2019 in Exhibit A1, attachment J2). The Applicant also undertook numerous voluntary rehabilitative and parenting courses while detained in prison and immigration detention. However, the Applicant’s lack of insight into his offending, as discussed above, does call into question the effectiveness of some of the treatment courses undertaken by the Applicant between August 2015 and July 2019. These courses are discussed in further detail below.
The Applicant has a history of alcohol abuse, and first started drinking alcohol as a teenager (transcript, day 1, page 20). During the hearing, the Applicant stated “I would drink just to block off my pain…and further that I would just drink just to try to forget things”. The following exchange during the hearing is also relevant (transcript, day 1, page 22):
SENIOR MEMBER: What do you think the relationship is between your drinking and you’re [sic] offending - - -?
APPLICANT: My relationship with drinking and offending, that was the main cause of it. Mostly when I drink, try to block things out, then I don’t think, I go do stupid things and then I end up in problems all the time, so - but then I cut down on the drinking because that’s the only way I knew how to block everything away…
The Applicant stated that he had cut down his drinking and that he had stopped drinking spirits in favour of apple cider (transcript, day 1, page 22). There is evidence before the Tribunal that suggests that the Applicant continued to drink to excess at least until 2015, when he was taken into custody by police and he drank alcohol until he passed out, and was passed out when police came to take him into custody (transcript, day 1, page 67). Some of the certificates of attendance indicate that the Applicant has attended several courses focussed on substance abuse and addiction, as well as attending 10 Alcoholics Anonymous meetings whilst a prisoner in Acacia Prison as at 20 August 2015 (Exhibit A1, attachment G2).
Specifically, the Applicant has participated in a number of programs while detained in prison and immigration detention. Between 6 August 2015 and 4 November 2015 the Applicant completed a program in parenting (Exhibit A1, Attachment H1). In April 2017 he attended three courses, being courses on substance abuse and violent reoffending attended on the same day and one course on mental health (Exhibit A1, Attachments G3-G4). Between May 2017 and August 2017 the Applicant attended a number of courses including three courses on managing stress and anxiety; one course on combatting “life traps”; one course on “getting to know you”; four courses on substance abuse and addiction; two courses on conflict and anger, one course on domestic violence; and two courses on grief and trauma (Exhibit A1, Attachments G5-G23). Between May and July 2019 the Applicant attended a parenting course over four two-hour workshops (Exhibit A1, Attachment H2-H5). The Applicant has further submitted two undated certificates of his attendance for courses on domestic violence and self-esteem (SFIC, Attachment G1).
The Applicant’s attendance at numerous treatment courses is positive; however, the courses were of short duration (and mostly appear to be over a single day, or part of a day), with the certificates only recording attendance and not any progress or treatment gains made. The Tribunal has no evidence of any formal risk assessment being undertaken following the Applicant’s completion of these courses. Nor does the Tribunal have before it any comments from course facilitators as to the treatment gains made by the Applicant as a result of undertaking these programs. This is of particular concern with respect to alcohol, because, as conceded by the Applicant, there is a link between the Applicant’s alcohol abuse and his offending.
The Applicant has also made enquiries about attending a residential rehabilitation program at Shalom House (transcript, day 1, page 30). The Applicant submitted a brochure from Shalom House to the Tribunal which states, “We offer services to anyone with a life controlling issue, whether it be an addiction to substances such as drugs and alcohol or people with anxiety, fear or emotional trauma” (Exhibit A1, attachment O1). However, he has not been accepted into this program, and according to information provided by the Applicant from Shalom House (Exhibit A1, attachment O1), it does not take new residents while they are detained in custody. Although the Applicant’s legal representative argued that it is likely the Applicant would be accepted into the program, there is no evidence indicative of the Applicant’s likelihood of being accepted into the program before the Tribunal.
To the Applicant’s credit, there is no evidence before the Tribunal of any negative behaviour in immigration detention, and on 22 June 2017 the Applicant received a certificate of appreciation for “demonstrated ongoing positive behaviours in immigration detention” (Exhibit A1, attachment G12).
The Tribunal notes that the Applicant has a formal offer of employment from his brother as a “Repair Handyman”, and that engagement in meaningful employment may assist in reducing the likelihood of his reoffending (Exhibit A1, attachment O3). The Applicant’s brother also informed the Tribunal that he had offered the Applicant accommodation with him at his house if he is released into the Australian community (transcript, day 1, page 90). The Applicant also has the support of other pro-social family members including his aunt (who is a drug and alcohol counsellor) and cousin who both provided statements in support of the Applicant to the Tribunal (Exhibit A1, attachments M5, N2 and M3; see also N1, M4, M6). These pro-social family members may act as a supportive factor to reduce the likelihood of his reoffending. However, the Tribunal notes that their support of the Applicant in the past did not appear to have deterred him from reoffending over many years. The Tribunal also notes references in support from two of the Applicant’s friends which indicate he has additional support in the community beyond his family members (N3, N4).
The Tribunal finds that there is little to no likelihood of the Applicant reoffending in a sexual manner should he be given a further chance to be released back into the Australian community. The Applicant’s sexual offending was committed in 1998 when he was 18 years of age, and there has been no further sexual offences recorded since that time.
However, based on the above discussion, the Tribunal finds that there is a likelihood that the Applicant will engage in general offending should he be released back into the Australian community. It is difficult for the Tribunal to gauge the degree of likelihood, in the absence of any formal psychological assessments or assessments of the Applicant’s progress by program facilitators. However, based on the evidence outlined above and the Applicant’s fairly consistent history of offending over an 18 year period,
the Tribunal finds on the balance of probabilities that his likelihood of re-offending would, at a minimum, be considered moderate. Additionally, should the Applicant re-offend again in a similar manner, members of the Australian community may suffer serious physical injuries, loss of life, or psychological harm.
Consequently, on balance the Tribunal finds that this consideration weighs strongly against the revocation of the cancellation of the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has five children from three separate relationships. Three of his children are under the age of 18, and therefore fall within the ambit of consideration by the Tribunal under paragraph 13.2(4). While not relevant to the Tribunal’s determination of the best interests of children due of their age, the Applicant’s two adult children will be discussed below under the consideration of strength, nature and duration of the Applicant’s ties to Australia.
The Applicant has a son born in September 2006 (aged nearly 13 years at the time of this decision).
The Applicant has two sons from another relationship with his former partner who was the victim of the Applicant’s “aggravated assault occasioning bodily harm” offence, and who was the protected person in several restraining orders against the Applicant. The elder of the two children was born in January 2013 (currently six years of age) and the younger was born in September 2015 (nearly four years of age). Both children are currently in the care of the Department of Communities - Child Protection and Family Support (CPFS) (formerly the Department of Child Protection (DCP).
In accordance with paragraph 11.2(3) of Direction No 79, as the children’s interests differ, the Tribunal will first separately consider the Applicant’s 12 year old son,
before turning to the Applicant’s six year old and four year old sons (whose interests are similar) together.
12 year old son
The circumstances of the Applicant’s relationship with his 12 year old son were explained in submissions dated 11 August 2016, made on behalf the Applicant by his legal representative (G14, page 97-98, paragraph [39]):
[The 12 year old son] was the result of a three-year relationship between the Applicant and the mother of the child, [name of mother omitted] commencing in 2005. [The mother] is of Muslim religion and wanted the Applicant to convert to Islam. The Applicant was pressured to convert to Islam by [the mother’s] family who did not approve of the Applicant. The Applicant and a pregnant [name of mother omitted] moved to [town name omitted] in order to have the child, however, [the child’s mother] wanted family support and moved back to [name of city omitted] shortly afterwards. The Applicant and [the mother] remained in a relationship for approximately two years after the birth of [the 12 year old son], however this relationship finally ended because the Applicant would not convert to Islam and [the mother’s] family were prepared to disown her if the relationship continued. The Applicant currently does not have any contact with [the 12 year old son] or [the mother]. If the Applicant is released from detention, the Applicant intends to make contact with [the mother] in order to get to know his son whereabouts [sic].
The Applicant wants to play an active role in [the 12 year old son’s] life.
It appears from the above that statement that the Applicant had contact with his son until the child was approximately two years of age. However, there is no compelling evidence before the Tribunal of any existing relationship between the Applicant and this child, and the Applicant has no contact with this child. This was confirmed by the Applicant at the Tribunal hearing (transcript, day 1, page 27) (Direction No 79, paragraph 13.2(4)(a)).
This child will turn 18 in more than five years’ time, and the Tribunal notes the Applicant’s intention to reconnect with his son and to play an active role in his life (Exhibit A2, paragraph [49]). This may however be difficult, given the negative views that the family of the child’s mother previously held toward the Applicant. However, if the Applicant is able to reconnect with his son and if he does not continue to reoffend, he may be able to play a positive parental role in the future, and in this regard, the Tribunal notes the Applicant’s completion of parenting courses, which it views positively (Direction No 79, paragraph 13.2(4)(b)).
The Applicant has not had contact with this child since the child was two years of age and due to this absence there is no evidence that any prior conduct of the Applicant has had a negative impact on this child. Although, should the Applicant reconnect with this child and commit any future offences, it may have a negative impact on the child (Direction No 79, paragraph 13.2(4)(c)).
The child currently does not have any contact with the Applicant, and as such there is likely to be minimal negative effect on the child should the Applicant be removed from Australia, with the exception that the child will not be able to develop a future in-person relationship with his father in Australia. Should they resume contact in the future, it would however be possible for the child to communicate with the Applicant in other ways, for example by telephone or over the Internet (Direction No 79, paragraph 13.2(4)(d)).
The child’s mother currently fulfils the parental role in relation to this child (Direction No 79, paragraph 13.2(4)(e)).
There are no known views of this child before the Tribunal (Direction No 79, paragraph 13.2(4)(f)).
There is no evidence that the Applicant abused or neglected the child in any way in the past (Direction No 79, paragraph 13.2(4)(g)), nor that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (Direction No 79, paragraph 13.2(4)(h)).
Overall, the Tribunal concludes that revocation of the cancellation decision is in the best interests of this child because the removal of the Applicant would be detrimental to any future relationship the Applicant might have with the child. However, the Tribunal gives minimal weight to this primary consideration with respect to this child because there is no existing relationship between the Applicant and the child, and the Applicant has been absent from the child’s life since the child was approximately two years old. The best interests of this child weigh slightly in favour of revocation of the decision to cancel the Applicant’s Visa.
Six year and three year old sons
The Applicant has a six year old son, born in January 2013, and a three year old son, who is about to turn four years old. As noted above, these children have the same mother, and are in the care of CPFS. The children’s mother has a history of significant drug use, including intravenous drug use.
With respect to these children, the Applicant stated (Exhibit R1, G23, page 208, paragraph [17]):
I have two children in the care of the Department of Child Protection because their mother cannot properly care for the children. I intend to create a safe home to the children so that they can live with me, if I remain in Australia. If I am deported, these children will probably remain in the care of the Department of Child Protection.
The Applicant is currently negotiating with CPFS to have contact with his children.
The Applicant has stated that he expects to receive financial compensation as a result of being hit by a car and that he intends to use this money to support his children financially (Exhibit A2, paragraph [59]).
The Applicant’s legal representative submitted on his behalf that the Applicant “does not want his children to remain in the custody of the Department of Child Protection and is willing to do everything that he can to get them out of custody and into a safe and loving home environment” (Exhibit A2, paragraph [62]).
The Applicant further submitted that he is the only person able to get custody and look after the children because his aunt has health issues and is unable to look after young children. This was confirmed by the Applicant’s aunt in her evidence at the Tribunal hearing (see also medical certificate (Exhibit A2, attachment O2).
Six year old son
The Applicant’s six year old son was placed in the custody of CPFS following his first birthday, and is currently in foster care. He is the subject of a protection order until he turns 18 years of age, which was granted on 16 July 2015 (Exhibit R3, page 265). A Record of Child Information from the Department for Child Protection states (Exhibit R3, page 154), “[child’s name omitted] was brought into care due to ongoing domestic violence between his mother and father”.
The Applicant has had limited meaningful contact with his six year old son, and there have been long periods of absence from his son’s life for reasons including the Applicant’s imprisonment (Direction No 79, paragraph 13.2(4)(a)).
In 2014 the Applicant had some supervised contact with his son. The psychologist reported that during one occasion of supervised access on 11 July 2014 that, “I am unable to fault [the Applicant] on interactions with [child’s name omitted]. He was almost totally child focused, responsive to [the child’s] needs and very positive towards him” (Exhibit R3, page 175). This is indicative that the Applicant has potential to play a positive parental role in the future, and the Tribunal notes that there are still approximately 12 more years until this child turns 18, and the Applicant’s completion of parenting courses. If the Applicant is able to stop using alcohol and offending, there will be a substantial amount of time for him to play a positive parental role in the child’s life (Direction No 79, paragraph 13.2(4)(b)).
The Applicant has had periods when he has not had contact with his son due to incarceration. A Quarterly Care Report from DCP dated 10 September 2018 states that the Applicant had Skype contact with his son on 2 occasions (Exhibit R3, page 377). At the hearing the Applicant also stated that he recently had contact with his son via Skype (transcript, page 27).
Two recent decisions were handed down by the Federal Court which adopted slightly different approaches to the interpretation of this primary consideration. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR).
In DKXY, Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]). His Honour explained, at [31], that:
Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Original emphasis.)
In summary, Griffith J was of the view that “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach, which appears to be more consistent with Mortimer J’s approach in YNQY:
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. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J refers to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it is not clear when circumstances may justify departure from that norm.
Paragraph 13.3(1) of Direction No 79 states the government’s view that the Australian community expects non-citizens to obey Australian laws whilst in Australia. The Applicant has a lengthy history of disobeying Australian laws, having committed numerous offences over many years. This includes repeat offending, such as continuing to commit driving offences after a term of imprisonment for similar offences, continuing to breach court imposed orders and violence restraining orders, and numareous offences against public officers in the performance of their duties. Regardless of whether the Tribunal takes a strict interpretation of the expectations of the Australian community such as was taken by Perry J in FYBR, or the broader approach of Griffith J in DKXY, the Tribunal is of the view that the Australian community would expect that the cancellation of the Applicant’s Visa should not be revoked.
In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. This principle is that: “The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”. Additionally, the principle in 6.3(3) of Direction No 79 is also applicable. This principle is, in summary, that: “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… should generally expect to… forfeit the privilege of staying in, Australia”. The Applicant committed a sexual offence against a vulnerable member of the community (a 13 year old girl) which is viewed very seriously by Direction No 79. The Tribunal does however note that this offence was committed in 1998 and there has been no subsequent offending of a similar nature. However, the Applicant has also committed numerous other offences which the Tribunal has found to be serious in accordance with the Direction, including a domestic violence offence against his former partner (“aggravated assault occasioning bodily harm”) and breaches of violence restraining orders and protective bail, a number of offences against public officers in the performance of their duties, and multiple serious driving offences including unlicensed driving and driving under the influence of alcohol (see above paragraph [45]).
Consequently, the Tribunal finds that the expectations of the Australian community would weigh against the revocation of the cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has considered the serious nature of the Applicant’s offending and the risk of harm if he were to reoffend in a similar manner (while taking into account that his risk of reoffending in a sexual manner is likely to be minimal to non-existent, but also that his risk of committing other offences including traffic offences, offences involving violence or offences against police) is likely to be at least moderate), which weigh strongly against revocation. The Tribunal has also considered the best interests of the Applicant’s minor children which overall weigh moderately in favour of revocation of the cancellation decision. In determining weight, the Tribunal has balanced the other considerations which tend to weigh in the Applicant’s favour, and which are discussed below, particularly the strength, nature and duration of the Applicant’s ties to Australia and the impediments that the Applicant is likely to face if he is returned to Uganda.
Balancing these considerations, the Tribunal finds that the expectations of the Australian community weigh strongly against the revocation of the decision to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
International non-refoulement obligations
Paragraph 14.1 of Direction No 79 provides that:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. 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, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Applying the Federal Court decision in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (Bromberg and Mortimer JJ at [71]-[73]), the Applicant has submitted that he may suffer harm if he is returned to Uganda and consequently the Tribunal is required to consider any international non-refoulement obligations that may arise, regardless of whether the risk of harm was couched by the Applicant in the language of non-refoulement, and regardless of whether the Applicant may apply for a protection visa.
The Applicant’s legal representative, on behalf of the Applicant, made the following submissions which he stated were with respect to non-refoulement (paragraph 14.1(1) of Direction No 79). These were most comprehensively made in the Applicant’s SFIC in Exhibit A2, paragraphs [80]-[83] (see also Exhibit A1, paragraph [83]):
80. The Applicant sustained many injuries in a car accident. In the Applicant’s 2016 medical report, it was stated that his injury affected his ability to lift his knee, the capacity to crouch, kneel, undertake heavy lifting and prolonged standing (Attachment E). The Applicant requires continual medical attention. The level of medical support needed for the Applicant will not be available in Uganda.
81. World Health Organisations (WHO) country corporate strategy study found that Uganda’s burden of disease is dominated by communicable diseases, which account for over 50% of morbidity and mortality (Attachment P2). Malaria, HIV/AIDS, TB, and respiratory, diarrhoeal, epidemic-prone and vaccine-preventable diseases are the leading causes of illness and death. There is also a growing burden of non-communicable diseases (NCDs) including mental health disorders. Maternal and perinatal conditions also contribute to the high mortality rate in Uganda.
82. Furthermore, the emergence of antimicrobial resistance due to the rampant inappropriate use of medicines and irrational prescription practices and the inadequate control of substandard, spurious, falsely labelled, falsified or counterfeit medicines are key problems in Uganda.
83. It is against Australia’s non-refoulment obligation to ask the applicant to return to Uganda when it is clear that he won’t be able to receive the required medical care and attention. Additionally, the Applicant will face language and cultural barriers in Uganda. The Applicant came to Australia at fourteen years of age. He is now [40] years of age. The Applicant has no family support in Uganda. Both his parents were killed. The Applicant’s only remaining relatives reside in Australia. The Applicant doesn’t speak, read or write the national language Swahili. The Applicant considers Australia home and it is not possible for the Applicant to live to Uganda [sic].
(References to attachments omitted.)
The Tribunal observes that some of the impediments articulated above are more particularly relevant to the other considerations of “extent of impediments if removed” (paragraph 14.5(1) of Direction No 79) and also “strength, nature and duration of ties” (paragraph 14.2(1) of Direction No 79), including impediments with respect to the Applicant’s health, the standard of medical care available to him in Uganda, language and cultural barriers, the absence of family support in Uganda, the Applicant’s family residing in Australia, and the Applicant residing in Australia from the age of 13 years and regards Australia as his home (paragraph 14.1(3) of Direction No 79).
The Tribunal further finds that, with respect to the general statements in paragraphs [81] and [82] of Exhibit A2 (set out above) regarding communicable and non-communicable diseases, inappropriate use of medicines and irrational prescription practices that the Applicant who would be in no different position to any other citizen of Uganda.
The Tribunal notes the Applicant’s statement that “my parents were killed in the Ugandan civil war when I was two years of age” (Exhibit R1, G23, page 207, paragraph [6]). However, the Applicant has not advanced any further submissions or evidence as to whether there was, for example, a political motivation for their deaths which may impact on the Applicant and potentially give rise to a non-refoulement claim.
In her written statement (Exhibit A1, attachment M3), the Applicant’s aunt stated:
The hardest part is if [sic] is taken back to Uganda he does not have any documents to prove that he is a Ugandan. Uganda is a very troubled country, I am worried that he might be killed if he does not have any one to claim him, and he can’t speak the language. I am very scared for his life.
This was clarified at the Tribunal hearing in the following exchange (transcript, day 1, page 76):
SENIOR MEMBER: …You’ve said in the last paragraph of your statement is that it’s a very troubled country. You said I’m worried he might be killed if he does not have anyone to claim him and can’t speak the language. What do you mean by that, can you expand on that for me?
AUNT: What I meant there was Uganda, they have got so many - so many people coming from Sudan, Rwanda and sometimes some of them, they are not - they come there for - they are running away from trouble from their own countries as well and sometimes they don’t have documents, they’re just there illegally as well. So, a person like to have been without any document, they might think he’s one of them and another thing, he doesn’t - he can’t speak any of the languages and that’s what I was meaning that he would be in trouble because he can’t easily misidentified that he’s maybe one of those people may be coming from Sudan or coming from - well, whatever Congo and just come to the country for refuge and they haven’t been - maybe they haven’t been assessed by the UN or whatever, so they’re there illegally. … So, anything could happen to them and he doesn’t know the language and he doesn’t know anyone, so that’s what I was meaning.
…
SENIOR MEMBER: Yes, okay. Because you’ve said, you know, he might be killed… that’s quite a serious thing to say?
AUNT: Yes.
SENIOR MEMBER: Why did you say that?
AUNT:What happens back home is different from here when you are arrested. Soldiers, when they arrest you, is not like how they arrest people here, they come and kindly. Over there, sometimes they can be a little bit harsh and a little bit - they can put a little bit of strength or maybe pulling and pushing and you can go - even beatings, so depending on what he’s going to say, or maybe they’re - they’re asking him in the language and he’s speaking in English, so for them they might think that his crime might be Rwanda - Rwanda and he’s trying to - he’s not respecting them, or something. So, because he - yes.
SENIOR MEMBER: Okay, all right. So, you’re sort of speaking in general terms about they [sic] system?
AUNT:Speaking in general about the system and, you know, somebody who doesn’t know, he might take this attitude from here that you can speak out or maybe you can explain or maybe whether they want to handcuff him, maybe might - and things like that because he doesn’t know.
SENIOR MEMBER: Okay, yes. I understand.
AUNT:For me I know maybe if they talk to me I can stand and humble myself but these children who are growing up here, they know the life which we lived here with the police, over there it’s not like that. If he’s arrested, it can go either way.
The evidence of the Applicant’s aunt did seem to be based on an assumption that the Applicant would be returned to Uganda without identity documents, and that people without identity documents could potentially be targeted or subjected to violence by the police. In his closing submission, the Respondent’s legal representative stated that there is no evidence before the Tribunal that the Applicant would be returned without identity documents, nor is there evidence before the Tribunal, such as country information or other reports from the Department of Foreign Affairs and Trade, to suggest that people without documents are the target of police violence (transcript, day 2, page 126). The Tribunal agrees with this submission.
The Tribunal finds that the Applicant’s claims of harm are somewhat vague, general and not sufficiently supported by the evidence before the Tribunal. The Tribunal is not satisfied that the Applicant faces a real risk of harm if returned to Uganda. Based on the evidence before it the Tribunal is of the opinion that any risk of harm does not outweigh the primary considerations which favour the non-revocation of the cancellation decision.
As noted in the Respondent’s SFIC (Exhibit R2, paragraph [68]) the Applicant can, however, make an application for a protection visa, and have his claims assessed and tested under the protection visa regime. As provided for in Ministerial Direction No 75, the Applicant’s non-refoulement claims would be determined first before any character concerns are considered.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting 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 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 nonrevocation 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).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Additionally, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(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.
The Applicant is now 39 years of age and arrived in Australia when he was 13 years of age. He has resided in Australia for approximately 26 years. The Applicant attended high school in Australia until Year 11.
His first offences were as a juvenile, and he was convicted of his first offence of “hinder police” on 7 March 1997, within approximately four years of arriving in Australia, when he was 17 years old. The Applicant then committed his first adult offences on 15 August 1999 (“no motor drivers licence” and driving with a blood alcohol reading of “Excess 0.08%...”), within six years of arriving in Australia, and when he was approximately 20 years old.
There is very little evidence of the Applicant making positive contributions to the community. The Applicant’s SFIC (paragraph [79]) submits that he has previously worked as a “kitchen hand, machine repairer, welding pipes and handyman jobs”. In an undated handwritten statement dated 6 September 2000, the Applicant also stated that he started a mechanical apprenticeship, “work for the Dole training”, and that he had done “various casual jobs” (Exhibit R1, G19, page 199). The Applicant’s SFIC (paragraph [89]) further submits that he “was part” of a Church and African Fellowship where he counselled and mentored youth (Exhibit R1, G19, page 200), and that he regularly donated to the Fred Hollows Foundation for the blind. In his handwritten statement (Exhibit R1, G19, page 199), the Applicant stated that he became a financial member of two African Community organisations. No dates or details were provided for these activities, and there is no independent evidence before the Tribunal to verify them. Despite this lack of evidence, the Tribunal accepts that the Applicant has made some positive contributions to the community.
The Applicant arrived in Australia with his aunt, brother and three cousins in 1993. As noted above, the Applicant’s aunt, brother and one of his cousins gave evidence in support of him at the hearing. The Applicant clearly has the support of these pro-social family members, as well as his nieces and nephews, with one 20 year old nephew stating that the Applicant has a “positive impact” on them (Exhibit A1, attachment M4). The Applicant appears to be particularly close to his brother, who has offered him employment. In a written statement, the Applicant’s cousin stated that he was “deeply broken about [his] brother’s situation as a loved one who still needs him around” (Exhibit A1, attachment M6). The Applicant’s aunt was very supportive of the Applicant in her evidence before the Tribunal, and also described that she suffers from health issues (see also medical certificate at Exhibit A1, attachment O5). The Tribunal finds that these family members are likely to suffer some emotional detriment if he is removed from Australia.
The Applicant has five children in total who are Australian citizens. There are three minor children whose interests were discussed above under the primary consideration of the best interests of minor children. These children may be detrimentally impacted by not being able to have a relationship with their father. This is particularly the case for the children who are in the care of DCP. To the Applicant’s credit, he has made the effort to complete numerous parenting courses; has been trying to contact his children; and wants to be able to regain custody of them. If the Applicant is permanently removed from Australia, these children would be deprived of the possibility of a relationship with their father, which may have a negative emotional impact on them.
The Applicant also has two adult daughters who are both attending university. One of his daughters stated in a statutory declaration (Exhibit A1, attachment N1) that:
“…it would be nice to have two parents in Australia to support me now and in the future. I am 19 now and would love for him to see me grow up and see my family and what I accomplished in the future as I find our bond a lot stronger while he’s here”.
The Tribunal finds that the Applicant’s adult daughters are also likely to suffer some emotional detriment if he is removed from Australia.
The Tribunal finds that the Applicant has ties to Australia in terms of the length of time he has resided in Australia, and due to his family members and children being in Australia. However, paragraph 14.2(1)(a)(i) states that “less weight can be given where the non-citizen began offending soon after arriving in Australia”. Thus, the weight that can be given to this consideration is reduced by the fact that the Applicant commenced his adult offending within approximately six years of his arrival in Australia (and indeed his juvenile offending within four years of arriving in Australia). Although there is minimal evidence of positive contributions to the community, the Tribunal accepts that the Applicant has made some positive contributions, and gives those positive contributions some weight. Nevertheless, the Tribunal finds that this other consideration weighs moderately in favour of the revocation of the decision to cancel the Applicant’s Visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 notes the following “other consideration” for the Tribunal:
(1)Impact 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 of an important service in Australia.
Although the Applicant has submitted that his brother has offered him employment as a “Repair Handyman” (Exhibit A1, attachment O3) and that the Applicant’s assistance is required by his brother to expand the business due to his “knowledge and skills with machinery”. The business involves “cleaning and landscaping services” and “repairing and selling cars” (Exhibit A1, attachment O3).
The Tribunal is, however, of the opinion that there is no impact on Australian business interests, and consequently the Tribunal gives this consideration no weight. This is because the nature of the business is that it would be possible to find many persons with the requisite “handyman” skills to fulfil that role, and the business would likely not be negatively impacted without the Applicant’s involvement. The business does not involve the delivery of any major projects, or the delivery of an important service in Australia that would be impacted.
Impact on victims
Paragraph 14.4(1) of Direction No 79 states that the Tribunal should have regard to the impact on victims. Specifically, it states:
(1)Impact 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 Applicant stated that the Applicant’s former partner, who was the protected person in the numerous restraining order breaches committed by the Applicant, would be adversely affected because she had relied upon the Applicant for many years, both financially and emotionally (Exhibit R2, paragraph [86]; Exhibit A1, attachments L1 and L2). The Tribunal notes that the Applicant’s former partner was also the victim of the “aggravated assault occasioning bodily harm” offence committed by the Applicant. Evidence in the documents produced under summons, including the material produced by DCP indicates that this relationship involved conflict and repeated domestic violence offences. There is no recent evidence about the Applicant’s former partner’s views regarding the Applicant’s potential removal from Australia, and at the Tribunal hearing the Applicant confirmed that he was no longer in contact with her, having ceased contact three to four years ago (transcript, day 1, page 34). This evidence tends to indicate that the impact of a decision not to revoke would have little to no impact on the Applicant’s former partner.
There is no evidence before the Tribunal about the impact that a decision not to revoke the mandatory cancellation of the Applicant’s Visa would have on the victim of the Applicant’s “sexual penetration of child under 16” offence, or the family members of the victim.
The Tribunal therefore gives this consideration no weight.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The 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 is now 39 years of age. As noted above, he left Uganda for Kenya when he was approximately two years old, before coming to Australia when he was approximately 13 years old. He has never returned to Uganda (see movement record at Exhibit R1, G28, page 222).
The Applicant also has health issues arising from two car accidents. The first accident was in 2008, which killed the Applicant’s friend who was driving at the time, and which injured the Applicant’s shoulder. The Applicant also stated that the incident caused him psychological harm (Exhibit R1, G23, page 208, paragraph [18]). In the second accident, the Applicant was hit by a car as he crossed the road (Exhibit R1, G30, page 246, paragraph [90]), which is currently the subject of District Court proceedings where the Applicant is seeking compensation. The Applicant has stated that he needs to remain in Perth for this application to proceed (Exhibit R1, G23, page 208, paragraph [18]). Further, submissions made by the Applicant’s legal representatives states that he was stabbed several times outside a nightclub in approximately 1997 (Exhibit R1, G30, page 246, paragraph [91]). A medical report dated 26 July 2016 states that the Applicant (Exhibit R1, G15, page 155):
… Does have some ongoing symptoms in his lower limbs and as such, some long-term restrictions in terms of the nature of the work he has indicated with the restrictions being the heavy lifting, crouching and kneeling, and prolonged standing…
Roles that require standing all day such as factory hand would also be best avoided.
He does not need to be restricted for roles that involve standing or walking but will need some sitting component.
The Applicant’s evidence at the hearing in relation to his medical restrictions was that he currently takes no medication, other than “Deep Heat ” (transcript, day 1, pages 33-34):
MR KRISTOPHER: Now, can you tell the tribunal just in terms of how is your health now?---My health - I wouldn’t say it’s fine, I wouldn’t say it’s bad, just I’m okay. I’m not a hundred per cent, okay but I’m all right.
All right?---But I’m not all right, my legs and my arms because I had - remember I said I had accident on my feet, I was in a wheelchair two times, I learned all over again to walk again because I wasn’t going to stay back down, you know, I wanted always to walk and be somebody in my life but that’s why I’m saying I’m okay but not okay. But meaning - - -
SENIOR MEMBER: Do you have to have any medication or do you have to have any ongoing treatment for your - - -?---Yes, the movement cause they saying when I have the (indistinct) pains on my legs and my knees and my ankle but I sometime I just take the - because I don’t like medication, I just take the - what’s it called, there’s a cream you rub, it’s called - smells like, what’s it called, Deep Heat.
Yes?---Yes, that’s the one I use to rub to - for the pain, yes, so. And I try to exercise my legs just to keep them going not to seize up, do a bit of exercise. That’s what I mean by okay by not fine, yes.
So, it’s just the medication, the self-medication that you do?---Yes, try to keep healthy, you know, just exercise a bit, yes.
There is no other evidence before the Tribunal that the Applicant requires ongoing medical care or appointments for his injuries at the present time. There is also no evidence of any mental health issues. Nevertheless the Applicant’s injuries do restrict the nature of the physical work he can undertake, and may therefore be impediments to him in seeking employment if he were relocated to Uganda, (although this impediment would also exist in Australia).
There are likely to be cultural and language barriers if the Applicant is relocated to Uganda. This is especially likely given that the Applicant came to Australia when he was approximately 13 years of age, and attended high school in Perth up until Year 11. There was some conflicting evidence before the Tribunal regarding the language difficulty that the Applicant would face if removed to Uganda. Department of Foreign Affairs and Trade Country Information on Uganda as at 16 August 2019 (Exhibit T1) states that the official languages of Uganda are English and Swahili. The Applicant stated that he spoke only broken Swahili (transcript, day 1, page 35). The Applicant’s aunt also stated that, “I can’t say that his - his Swahili is very, very good since we came here but he can speak Swahili” (transcript, day 1, page 80). However, the Applicant’s aunt later clarified in their evidence that there are different dialects spoken in each region of Uganda, and so she believed that the Applicant would have difficulty communicating there (transcript, day 1, page 85). The Tribunal accepts that there will be some language and cultural barriers faced by the Applicant if removed to Uganda as a result of the many years he has spent living in Australia, including not being familiar with customs and culture, that the Applicant may have difficulty adjusting to.
The Applicant stated that he had no family support in Uganda (transcript, day 1, page 34), with all his family members being in Australia, and his parents being deceased. His separation from his family members in Australia, particularly his brother, aunt and five children is likely to cause the Applicant emotional distress.
The Applicant has also submitted that he does not have any place to stay permanently in Uganda, believes that no financial support would be available to him, and that he would struggle to find employment (Exhibit A2, paragraphs [95]-[96]). However, there is no evidence before the Tribunal, for example Department of Foreign Affairs and Trade Country Information on Uganda, which indicates that the Applicant would not have the same access to social and economic support as other citizens of Uganda.
On balance, the Tribunal finds that, although not insurmountable, the Applicant is likely to experience hardship in re-establishing himself in Uganda, in particular due to the length of time he has resided in Australia, his health issues, his separation from his family, and cultural and language barriers. This weighs slightly in favour of the revocation of the cancellation decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason why the Reviewable Decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs strongly in favour of the non-revocation of the decision to cancel the Applicant’s Visa (paragraphs 13.1 and 13.1.1 of Direction No 79).
(b)The risk to the Australian community should the Applicant commit further offences weighs strongly in favour of the non-revocation of the decision to cancel of the Applicant’s Visa (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No 79), weighs strongly in favour of the non-revocation of the decision to cancel of the Applicant’s Visa.
The Tribunal finds that the best interests of the Applicant’s minor children (paragraph 13.2 of Direction No 79) weigh moderately in favour of the revocation of the cancellation decision.
With respect to the expectations of the Australian community (paragraph 13.3 of Direction No 79), the Tribunal finds that this consideration weighs strongly in favour of the non-revocation of the decision to cancel the Applicant’s Visa.
In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) and impediments if removed (paragraph 14.5(1) of Direction No 79) weigh moderately in favour of the revocation of the cancellation decision.
With respect to international non-refoulement obligations (paragraph 14.1 of Direction No 79), the Tribunal is not satisfied that the Applicant faces a real risk of harm if returned to Uganda, but is nevertheless of the opinion that any risk of harm would not (on the evidence before the Tribunal) outweigh the primary considerations which favour non-revocation of the cancellation decision.
The Tribunal has also found that any impact on business interests (paragraph 14.3(1) of Direction No 79) or victims (paragraph 14.3(1) of Direction No 79) did not weigh in favour of revocation of the cancellation decision.
On balance, the Tribunal is of the opinion that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the Applicant’s minor children, and the other considerations which weigh in favour of the revocation of the cancellation decision.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
3 June 2019not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
198.
199. I certify that the preceding 197 (one hundred and ninety - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
..................................[sgd].....................................
Associate
Date: 28 August 2019
Date of hearing:
15 and 16 August 2019
Representative for the
Applicant:Solicitors for the Applicant:
Representative for the Respondent:
Mr L M Kristopher
Morris, Alexander & Nelson Barristers & Solicitors
Mr A Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
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