MNLR and Minister for Home Affairs (Migration) - [2020] AATA 63

MNLR and Minister for Home Affairs (Migration) [2020] AATA 63 (6 January 2020)
Division:GENERAL DIVISION
File Number(s): 2018/6577
Re:MNLR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:6 January 2020
Place:Sydney

The decision of the Tribunal is to affirm the reviewable decision.
........[Sgnd]................................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against women - whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
Ezegbe v Minister for Immigration and Border Protection (2019) 164 ALD 139
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2019] FCA 1132
Minister for Home Affairs v Omar [2019] FCAFC 188
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
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
REASONS FOR DECISION
Deputy President Britten-Jones
6 January 2020
INTRODUCTION

This hearing arises from orders made by the Federal Court on 11 April 2019 which quashed and remitted the decision of the Tribunal made on 25 January 2019 not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 9 November 2016, the applicant’s Class XB (Subclass 202) Special Humanitarian visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 5 December 2016, the applicant, through his migration agent, made representations seeking revocation of the cancellation decision. The applicant’s submissions can be summarised as follows:
·he is afraid if he goes back to Iraq that the terrorists there would kill him because of his nationality and culture as a Sabean Mandaean. He would be in great danger because of his faith;
·his family was subjected to persecution and attack in Iraq by an unknown group who raped and killed his sister in 2006;
·he has no other family left in Iraq;
·he has no other convictions other than the one which is the subject…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 63
Decision Date: 6 January 2020

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had a substantial criminal record, including serious offending against women, and was found to represent an unacceptable risk to the Australian community. The applicant contended that he would face persecution if returned to Iraq, raising concerns about Australia's international non-refoulement obligations.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, having regard to Ministerial Direction No. 79. This required an evaluative exercise considering factors for and against revocation. The applicant conceded he did not pass the character test due to his substantial criminal record, meaning he could not rely on certain provisions for revocation.

The Tribunal considered the serious nature of the applicant's offending, particularly aggravated sexual assault against a woman, and the risk of reoffending. It found that the expectations of the Australian community weighed strongly in favour of maintaining the cancellation, as such serious offending generally warrants forfeiture of the privilege to remain in Australia. While acknowledging the applicant's concerns about persecution in Iraq and Australia's non-refoulement obligations, the Tribunal found that the protection of the Australian community outweighed these countervailing considerations, including the applicant's length of residence, ties to Australia, and potential hardship to his family.

The Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 5 November 2018, after taking into account the above representations made by the applicant, a delegate of the Minister for Home Affairs decided under s 501CA(4) not to revoke the cancellation decision (the delegate’s decision). The delegate’s findings were on the basis that the applicant represents an unacceptable risk to the Australian community and that the protection of the Australian community outweighs the countervailing considerations relating to international non-refoulement obligations, his length of residence in Australia, his familial, employment and social ties to Australia and the hardship he and his family would endure in the event the original decision was not revoked. On 12 November 2018, the applicant applied to the Tribunal for a review of the delegate’s decision. At the hearing before me, the applicant was represented by Mr C Jackson. The Respondent was represented by Ms S McGee. Oral evidence was given from the applicant, his partner and Mr Watson-Munro, a clinical psychologist. I received into evidence the transcript of the earlier Tribunal hearing dated 22 January 2019 during which oral evidence was given by the applicant, his partner, his mother, two of his brothers and Mr Watson-Munro. I received into evidence statutory declarations from the applicant, his mother, his brothers and his partner. Included in the s 501G documents was a statement from the father. He said that the Sabeans were persecuted by reason of their religion and the members of their group were subjected to murder, rape and kidnapping. He told the story of his daughter being kidnapped with a request for ransom being made. He tried to bargain but his daughter was killed by gunshots to her head after she was tortured and raped. The family then fled to Syria in October 2006. The respondent does not dispute or challenge the occurrence of the applicant’s sister having been kidnapped and killed, or that the applicant’s family genuinely hold beliefs as to similar events occurring to the applicant if he is returned to Iraq.[1][1] Respondent’s outline of supplementary closing submissions at [40]. I am required to give meaningful consideration to, and to actively engage with, the representations made on behalf of the applicant.[2][2] GBV18 v Minister for Home Affairs [2019] FCA 1132 at [74] – [76].ISSUES BEFORE THE TRIBUNAL The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. The applicant concedes the same. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked. The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3][3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].THE OFFENDING

Ratio Decidendi

Legal Principle Established

Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision. The applicant committed the serious offence of an aggravated sexual assault against a woman and should generally expect to forfeit the privilege of staying in Australia.[27] [27] Direction 79 at 6.3(3). Other considerations In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[28][28] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395 [86]. I take into account that the applicant has raised a concern that because he is a member of the Sabean Mandaean community he would face persecution if returned to Iraq. The concerns that the applicant will face if removed are relevant to international non-refoulement obligations and the extent of impediments if removed. The level of detail necessary for these considerations will depend, among other things, on the likelihood of the applicant being removed and the level of generality or specificity of the information suggesting harm.[29] In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. I must also consider the adverse impact of removal upon the applicant, including the impact of harm which does not engage Australia’s non-refoulement obligations.[30][29] Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [62].[30] BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456.International non-refoulement obligations 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. The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[31] I am required to properly consider the claims being made and the factual material being relied upon by the applicant.[32][31] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].[32] Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [27]. The applicant contends that he would face harm if returned to Iraq and that the Tribunal needs to consider Australia’s international non-refoulement obligations. Paragraph 14.1(1) of Direction 79 outlines Australia’s non-refoulement obligations pursuant to international human rights treaties and the 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”. Direction 79, at paragraph 14.1(4), also states:(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.