Mohammadi and Minister for Home Affairs (Migration)
[2018] AATA 3658
•27 September 2018
Mohammadi and Minister for Home Affairs (Migration) [2018] AATA 3658 (27 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3863
Re:Morteza Mohammadi
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member M O'Loughlin
Date:27 September 2018
Place:Adelaide
The Tribunal affirms the decision under review.
................................[SGD]........................................
Member M O'Loughlin
CATCHWORDS
IMMIGRATION — Mandatory cancellation of visa — Request for revocation of cancellation — Ministerial Direction No. 65 — Primary and other considerations — Decision under review affirmed.
LEGISLATION
Migration Act 1958, ss 499, 501, 501CA
CASES
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Minister for Immigration and Multicultural Affairs V SRT (1999) 91 FCR 234
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Member M O'Loughlin
27 September 2018
Mr Morteza Mohammadi had his visa cancelled because of convictions for offences of violence. The seriousness of the offending and concerns held for his ability to restrain himself from violent behaviour in the future have led the Tribunal to find that there is no reason to revoke the cancellation of Mr Mohammadi’s visa.
The Tribunal heard evidence and submissions on Thursday 6th September. The applicant, Mr Mohammadi, was the only witness to give evidence.
As a preliminary matter the Tribunal was told that the applicant had been interrupted in both his sleep and his preparation for the hearing by riots at the Yonga Hill detention centre where he was detained at the time of the hearing. Mr Mohammadi appeared to give evidence without trouble although his representative advised the Tribunal that Mr Mohammadi had felt stressed and uncomfortable by the process.
Ultimately no complaint was made of compromise to Mr Mohammadi’s hearing.
BACKGROUND AND LEGISLATIVE FRAMEWORK
In September 2006 the came to Australia having been granted Class XB, subclass 204 Woman at Risk visa as a dependant on his mother’s visa.
That visa was cancelled on the 18th of August 2016 by the Department of Immigration and Border Protection. The cancellation was a mandatory cancellation under s.501 (3A) of the Migration Act 1958 which was enlivened on the 23rd of January 2015 when the applicant was sentenced to a custodial term of 4 years and 8 months for the offences of blackmail (aggravated), false imprisonment, and intentionally cause harm (aggravated).
Those offences were committed on 23rd February 2013.
The applicant’s police certificate( which appears at pages 20 and 21 of the bundle of documents described as “Section 500 Documents” [1] shows that prior to that conviction the applicant had also been convicted of other offences of violence as follow:
[1] Tendered by the respondent – R2
7 December 2010
-Commit assault that causes harm – aggravated other- no weapon
Bond 2 years $100.00
8 December 2010
-Commit assault – basic offence
-Fighting
-Commit an assault that causes harm – basic offence
Convicted
18 April 2012
-Intentionally cause harm – aggravated offence – other
-Damage building or motor vehicle (not graffiti or unknown)
-Offence committed on 22 March 2010.
Sentenced 2 years 9 months imprisonment non parole period 9 months
20 June 2012
-Carry offensive weapon
-State false personal detail
Convicted discharged without penalty
The Tribunal does not have access to any sentencing remarks in relation to the convictions of the 8th of December 2010, 8th of December 2011 or 20th June 2012 all of which were recorded in the Adelaide Magistrates Court.
For the sake of completeness the Tribunal observes that the police certificate also records convictions for failure to comply with a bail agreement on 22nd October 2010 and drive under disqualification or suspension on 7th December 2010.
Section 501(7) of the Migration Act 1958 relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
The Tribunal finds that at the time of the visa cancellation on 18th August 2016, the applicant had a substantial criminal record as defined by subsection (7) of the Migration Act 1958.
Under the heading “Character test”, s 501 (6) relevantly provides:
(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));
The Tribunal finds that, because the applicant has a substantial criminal record as defined, he does not pass the character test set out at s 501(6) of the Migration Act 1958.
Section 501(3A) of the Migration Act 1958 relevantly provides as follows:
(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);
…
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.
It is not disputed, and the Tribunal finds, that on the 18th of August 2016 the applicant was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the State of South Australia.
Therefore the Minister’s cancellation of the applicant’s visa was under the compulsion of s 501 (3A) of the Migration Act 1958.
The applicant does not dispute the mandatory cancellation of his visa but seeks that the cancellation be revoked pursuant to the power to do so contained at s 501CA which provides:
501CA
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(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.
…
(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.
The power to revoke the cancellation of the applicant’s visa is contained at sub-s (4).
There are prerequisites to the exercise of the power, in particular that the Minister provide the applicant with the notice, information, and invitation set out at sub-s (3) and that the applicant make representations as set out in sub-s (4)(a).
There is no dispute that these prerequisites have been satisfied and the Tribunal so finds.
In relation to the exercise of the power to revoke the cancellation, the Tribunal has found that the applicant does not pass the character test and so the power vested by sub-s (4)(b)(i) is not available.
Power to revoke the cancellation of the applicant’s substantive visa is provided at sub-s (4)(b)(ii) and may[2] be exercised if the Minister is satisfied “that there is another reason why the original decision should be revoked.”
[2] In this context “may” takes the sense of “must” – Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337; [2016] FCA 1166 at [35] and [38].
This is the power that is relevant to the matter at hand. The Tribunal must decide if there is “another reason” why the cancellation of the applicant’s visa should be revoked.
Section 499 of the Act empowers the Minister to give written directions to a person or body having powers under the Act about the exercise of those powers.
A relevant written direction, Direction No. 65, directs this Tribunal in its exercise of power to revoke the original decision under sub-s (4)(b)(ii). The specific factors to be considered in making a revocation decision are identified in Part C of the Direction.
RELEVANT FACT FINDINGS
The applicant adopted his statement[3] in evidence. The Tribunal has regard to that statement and to the applicant’s oral testimony and makes the following findings of fact;
[3] Exhibit A 1.
The applicant was born on the 21st of March 1987 and at the time of the hearing was 31 years old.
He was born in Iran when his parents, who were from Afghanistan, were living there as refugees.
They later returned to Afghanistan where he lived for several years until the time that his Father died in about 1998. The remaining family members returned to Iran where they lived in a refugee camp until 2006 when they came to Australia. The applicant was 19 years old.
He lived in Adelaide with his mother, his 3 sisters and 2 brothers and he now has 3 nephews aged 7, 5, and 2 years old.
He worked as a tiler from 2007 to 2009 and for a meat company in 2010 with about 6 months out of work between those jobs.
It was during this time that of unemployment in 2009 and 2010 that the applicant became involved with the New Boys gang.
The applicant gave evidence that the gang members included some men of his own nationality and that being in the group reminded him of his group of friends in Iran. He said that in Iran they needed to stay together for protection and that he thought it was the same thing with the New Boys gang.
His work with the meat company finished in 2010 when he says he was imprisoned. The date is not clear but it appears that he was remanded in custody and held pending the trial which finished with sentencing on 20 January 2012. The precise date of the applicant being taken into custody is not important for the purposes of this application.
On the 20th January 2012 the applicant was sentenced to imprisonment for 4 years in relation to a guilty verdict of a jury for one count of aggravated causing harm with intent to cause harm and a plea of guilty to one count of damaging property. Those offences took place on the 22 March 2010.
In respect of that conviction the Tribunal has regard to the sentencing remarks of His Honour Judge Brebner of the District Court of South Australia.
Offences of 22 March 2010 and Sentencing Remarks of Judge Brebner
The learned judge noted that the applicant and his co-accused attended the Centrelink office in Arndale where the applicant saw the victim whom he suspected of having been involved in an assault on the applicant’s brother.
Judge Brebner found that the applicant and his co accused armed themselves with a hammer and an axe and lay in wait for the victim and his associate in the car park. When the victim and his friend came on the scene the applicant and his co accused attacked them causing some injuries.
The victim and his friend eventually escaped whereupon the applicant and his co accused turned their attention to the victim’s car which they damaged with the axe and the hammer.
His Honour rejected the submission that the weapons were not wielded against the victim with a great deal of force. He noted that the elements of premeditation, team work, and choice of weapons disclose the seriousness of the applicant’s crime.
In considering suspension of the sentence he said that the overall conduct of the two offenders was simply too serious.
The Tribunal notes that, although the sentence was successfully appealed, that appeal related solely to an error in making allowance for time spent in custody. The Court of Criminal Appeal specifically found that the sentence imposed was appropriate.
It is also appropriate at this point to note that the applicant was cross examined about the circumstances of the offence. The cross examination was allowed on the basis that the Tribunal would not have regard to any evidence that was inconsistent with the applicant’s conviction.
Further, the Tribunal indicated that it would not have regard to any evidence that was inconsistent with findings of fact in the sentencing remarks that were relevant to the sentence.
In this respect the Tribunal is guided by the reasoning in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197 and in particular at paragraph 40 where the Full Court of the Federal Court stated:
It is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
The applicant gave some evidence in cross examination that was inconsistent with the sentencing remarks. In particular, he said that the weapons that he and his co accused used were weapons that they took from the victim and his friend, and that they had not armed themselves for the attack.
Where there is a conflict between the evidence of the applicant and the findings in the sentencing remarks, the Tribunal prefers the version of events in the sentencing remarks.
The applicant gave evidence to the Tribunal that his time in prison was not easy, due in large part to his association with the New Boys gang and to the fact that he had their name prominently tattooed on his back.
He gave evidence that he had expected to receive support from other gang members while in prison but that that did not happen and he decided to leave the gang.
He said, under cross examination, that although he intended to have the tattoo removed he did not do so as soon as he got out of gaol because he wanted to save money so that his mother could go to Iran.
The applicant gave evidence that he was released from gaol on the 12th of December 2012.
Police Evidence Obtained On Subpoena and Other Evidence
At this point it is appropriate to note that the respondent directed the Tribunal’s attention to evidence of the applicant’s involvement in criminal in addition to sentencing remarks relating to convictions.
The tender bundle[4] included documents obtained on subpoena from the South Australia Police Department that related to matters in respect of which the applicant was convicted, matters in which the applicant was charged but was not convicted, and matters that did not result in any charges being laid against the applicant.
[4] Exhibit R 1.
The tender bundle also contained sentencing remarks of Judge Muecke dated 16 November 2011 in respect of a conviction for recklessly causing serious harm and threatening a person involved in a criminal investigation. This conviction was overturned on appeal and the Tribunal was advised, and accepts, that the applicant was acquitted of these charges when he was retried.
The use that the Tribunal might make of such documents was the subject of both written and oral submissions.
Effectively the respondent contended that the Tribunal is entitled to have regard to the documents as part of its right to inform itself in general about the applicant’s character.
The applicant asserted that it was not proper for the Tribunal to have regard to these documents at all. He said the Tribunal cannot assess the reliability of the documents that relate to alleged criminal activity for which the applicant was not convicted and further that where the applicant was convicted the Tribunal is entitled to have regard to sentencing remarks but should not go further than that.
Section 501CA (4) of the Migration Act 1958 empowers this Tribunal to revoke the cancellation of the applicant’s visa if it is “satisfied” that the applicant passes the character test or there is another reason that the cancellation should be revoked.
In satisfying itself, the Tribunal is not bound by the rules of evidence and may inform itself in such manner as it thinks appropriate.[5]
[5] Administrative Appeals Tribunal Act 1975 S 33 (1) (c).
Having said that, there is some tension between giving proper weight to the principles behind established rules of evidence and recognising the apparent intention of the legislature that hearings conducted by the Tribunal should be free of unnecessary formality and inflexibility.
This tension was examined by the Full Court of the Federal Court of Australia in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93, in which the majority observed (at paragraph 93 and following):
But questions have been repeatedly raised to as whether the reasons standing behind the common law rules of evidence may guide an administrative tribunal in the procedure which best facilitates the discharge of its statutory functions. In many instances, the common law rules of evidence are founded upon principles of common sense, reliability and fairness.
So much has long been recognised. Thus, for example, in an oft-quoted passage in R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256 Evatt J observed:
... Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence.” Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice.” The position of an appellant has been specially protected by the Legislature, and he should not be placed in a position where he is effectually prevented from conducting his appeal.
After referring to these observations in Ex parte Bott, supra, the first President of the Administrative Appeals Tribunal – Brennan J (as his Honour then was) – observed in Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 492 to 493:
... That does not mean, of course, that the rules of evidence which have been excluded expressly by the statute creep back through a domestic procedural rule. Facts can be fairly found without demanding adherence to the rules of evidence...
......
The majority judgments in Bott's case show that the Tribunal is entitled to have regard to evidence which is logically probative whether it is legally admissible or not...These observations of both Evatt J in Ex parte Bott, supra, and of Brennan J in Pochi, supra, have been recently approved by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [17], [2010] HCA 32; (2010) 241 CLR 390 at 396.
On balance it is clear that the Tribunal should not regard itself as fettered by the rules of evidence where they impose a merely technical restriction on matters to which the Tribunal might otherwise have regard, but the Tribunal should give full weight to the principles forming the basis for the rules of evidence where they suggest that information available to the Tribunal is unreliable or likely to be untrue.
The respondent asks the Tribunal to have regard to the police documents on the basis that they are statements of fact tendered as proof of the facts that they assert.
If the rules of evidence applied to the Tribunal, such documents would generally be inadmissible as hearsay.
The question for the Tribunal is what regard, if any, should be given to these documents for the purpose of this application.
In relation to criminal activity for which the applicant was convicted, the Tribunal has regard to the relevant sentencing remarks (where available), and does not seek to go behind those sentencing remarks by having regard to any further evidence.
In relation to alleged criminal activity in respect of which no conviction was obtained, the Tribunal cannot be satisfied that any evidence was tested or, if it was, that it survived such test. The Tribunal will not have regard to the police statements in relation to matters in which no conviction was obtained.
In relation to evidence relating to criminal activity for which the applicant was convicted, but in relation to which there are no sentencing remarks available to the Tribunal, the Tribunal cannot determine whether such evidence was accepted and declines to have regard to it.
This is not to say that it would never be appropriate to have regard to such evidence but in this matter the Tribunal declines to do so.
Offences of 23 February 2013 and Sentencing Remarks of Judge Tilmouth
The second relevant offending took place in February 2013.
The Tribunal has the sentencing remarks of Judge Tilmouth of the 23rd January in respect of that offending[6].
[6] S 500 Documents, Exhibit R2, pages 26 and 27.
The applicant was charged with false imprisonment, aggravated causing harm with the intent to cause harm and aggravated blackmail. He had entered a plea of guilty.
The sentencing remarks reveal that, in the course of recovering a debt the applicant forced a man into a car and assaulted him with an iron bar while his younger brother, Mohammad, drove away.
The applicant then forced the man to write notes relinquishing ownership of his vehicles to the applicant.
His Honour notes that the offences were committed out of “ a misplaced sense of obligation as the eldest male of a family of six for whom you considered yourself to be responsible.”
He goes on to note that the applicant is “assessed as highly emotionally unstable and suffering from post-traumatic stress disorder.”
Finally, the Tribunal notes that His Honour found that in fixing sentence there was “…a strong need to maintain a significant degree of personal deterrence given your antecedents” and that it was “…plainly inappropriate to suspend the sentence…”
The applicant was sentenced to four years and eight months after a reduction for guilty plea. A non- parole period of three years and six months was also set.
Other Criminal Activity
The applicant was asked some questions about other criminal behaviour and alleged criminal behaviour, in particular in respect of a conviction for Commit Assault that Causes Harm – No Weapon that was recorded in the Adelaide Magistrates Court on the 8th of December 2010.
The questioning in relation to that offence was objected to on because sentencing remarks are not available to the Tribunal and that we do not know what statement of facts the applicant agreed to when he was sentenced.
The Tribunal allowed the cross examination on the basis that if the answers are relied upon by the Tribunal, the Tribunal will identify such answers and the basis upon which they are relied upon.
The Tribunal does not believe that any of the evidence that was elicited on cross examination falls outside what may have been contained in a statement of agreed facts and used as the basis of sentencing remarks. On that basis the Tribunal declines to have regard to this line of cross examination.
The Tribunal therefore proceeds to consider this application on the basis of the criminal behaviour described in the sentencing remarks of Judge Brebner of 20th January 2012 and Judge Tilmouth of 23rd January 2015.
DIRECTION NO. 65
Having found that the applicant is entitled to have his application for revocation of his visa considered, and having made findings in relation to some of the evidence it is appropriate to assess the effect of Direction No. 65 on this matter.
Paragraph 13 (2) of Part C of Direction No. 65 provides 3 primary considerations relevant to this matter. They are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
The direction also directs the decision maker, in this case this Tribunal, to take into account other considerations where relevant. These are specified at paragraph 14 as including (without being 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.
At paragraph 8 of the direction the Minister has set out some principles that a decision maker must apply when taking the relevant considerations into account. Importantly the Minister requires that the primary considerations should generally be given more weight than other considerations and further that one or more primary considerations may outweigh other primary considerations.
Primary Consideration a) Protection of the Australian community
The direction notes that remaining in Australia is a privilege conferred in the expectation that non-citizens will and will have been law abiding, will respect important institutions, and will not harm or threaten individuals or the Australian Community.
Decision-makers are also directed to have regard to a range of more specific matters as part of this consideration, grouped under the headings “The nature and seriousness of the conduct” and “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”.
The nature and seriousness of the conduct
In considering the nature and seriousness of the conduct, one factor is that violent and sexual crimes are to be viewed very seriously. There is no suggestion of any sexual offending by the applicant.
On the other hand the applicant has been convicted in relation to two separate incidents of violent assaults on other members of the community.
The assaults involved the aggravating factor of the use of weapons on both occasions and on both occasions were committed in company.
In his sentencing remarks of 20th January 2012 Judge Brebner noted that the offenders’ intention, their premeditation, their team work and their choice of weapons disclose the seriousness of the crime[7].
[7] Exhibit R 2 page 23 paragraph 4.
The Tribunal has no reason to look beyond this assessment and finds that the violent nature and the seriousness of the offending of the 22 March 2010 must weigh heavily against this application.
In his sentencing remarks of 23 January 2015 Judge Tilmouth noted that the offences of 23rd February 2013 were psychologically and physically damaging to the victim[8] and that the applicant is assessed as “highly emotionally unstable and suffering from post-traumatic stress disorder”.[9]
[8] Exhibit R 2 Page 27 paragraph 1.
[9] Exhibit R 2 Page 27 paragraph 3.
Further, as noted above, Judge Tilmouth found that there was a strong need to maintain personal deterrence and that it was plainly inappropriate to suspend the sentence[10].
[10] Exhibit R 2 Page 27 paragraph 6.
The Tribunal finds that the nature and seriousness of the offending of 23rd February 2013 must weigh heavily against this application.
In relation to the other factors to be considered the Tribunal notes that there is no evidence that the applicant has committed crimes against vulnerable members of the community. This factor does not weigh against this application.
The sentences imposed by the courts, and the weight that they should be given in this application, have been considered above in connection with the seriousness of the offences.
The Tribunal finds that the second of the offences to which it has regard could be seen as more serious than the first offence.
The sentence for the first offence was for four years with a non-parole period of two years. The applicant had pleaded not guilty and was not entitled to a discount for a plea of guilty. The head sentence was not criticised on appeal.
The sentence for the second offence was five years and six months with a discount to 4 years and 8 months on account of his plea of guilty.
It is not possible to extract a trend from the sentences alone. The Tribunal finds that the nature of the offending was more serious in respect of the later offences, involving as they did kidnapping and blackmail in addition to causing harm.
Having said that, the Tribunal is not satisfied that the fact that the latter of two offences is more serious than the earlier offence is enough to suggest a “trend” in relation to the seriousness of offending.
The cumulative effect of repeated offending is not a relevant factor in this matter either, there being only two offences that the Tribunal has regard to.
There is no suggestion of the provision of false or misleading information to the department by the applicant.
There is nothing in the information available to the Tribunal to suggest that the applicant was formally warned of the consequence of further offending. This consideration therefore neither helps nor hinders this application.
There is no suggestion that the applicant has committed any crime while in immigration detention and this consideration does not weigh against this application.
The Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
This is the second aspect of protection of the Australian community that the Tribunal must consider under Direction No 65.
In broad terms the direction proposes that the greater the potential harm of further offences, the less the Australian community will be prepared to take the risk of revoking the cancellation of the non-citizen’s visa. It also directs that in some cases the harm that would be caused by the repetition of some conduct is so serious that the risk of revoking the cancellation of the non-citizen’s visa is unacceptable.
In assessing this risk the Tribunal is directed, at paragraph 13.1.2 (2) to 2 considerations.
The first is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The second is the likelihood of the non-citizen engaging in further relevant conduct, in assessing which likelihood the Tribunal should take into account available information in this regard.
The criminal conduct engaged in by the applicant to which the Tribunal has regard for the purposes of this application is dominated by the two serious crimes of violence for which the applicant was imprisoned.
Those offences were serious and if they were to be repeated the potential harm would be substantial.
Indeed the potential harm of further violent conduct is so serious that no significant risk of it being repeated should be tolerated.
The applicant has said that the first offence occurred during a period that he was involved with a gang but that his gang affiliation ceased when he went to prison.
It was submitted on Mr Mohammadi’s behalf that the kidnapping, blackmail and causing harm offences of 2013, which occurred within about 3 months of his release from prison, pose a lower risk of reoffending given that he is no longer associated with a gang.
There is evidence of various psychological and psychiatric assessments that the applicant has undergone and he gave evidence of efforts he has made to obtain counselling for anger management. The applicant also relies on the a report prepared by a social worker, Sarah Moya of Survivors of Torture and Trauma Assistance and Rehabilitation Service (STTARS) on the 28 August 2018[11].
[11] Exhibit A2.
Ms Moya had spoken to the applicant on 6 occasions by telephone, the first such communication being in April 2018. She described these calls as counselling sessions.
She reported in the second paragraph of page 2 of her report that while in prison and Immigration Detention the applicant had attended anger management courses and drug and alcohol counselling. She believed that the applicant had learned some coping mechanisms that would help him manage his anger and that she hoped to build on that with further counselling.
The respondent notes that in 2011 Mr Damien McInerney, a clinical psychologist apparently retained by Mr Mohammadi’s legal advisers in the criminal procedings, stated in a report[12] that the applicant suffered from a severe posttraumatic stress and comorbid depression for which he required urgent therapeutic intervention.
[12] Exhibit R2 page 79 at page 81.
Further in a report of 12 August 2014[13] Dr Jack White, a clinical psychologist, in the context of considering the applicant’s issues with aggression noted that he required “considerable ongoing long-term treatment and support in order to address his psychological issues that our highly entrenched.”[14]
[13] Exhibit R2 page 66.
[14] At page 11 of that report.
The therapy that was recommended was:
· mental health treatment from a psychiatrist or psychologist for anxiety, chronic post-traumatic stress, depression, paranoia, identity issues, and emotional instability;
· substance use rehabilitation in respect of addiction issues with alcohol and cannabis; and
· Anger management.
Some efforts have been made in respect of drug and alcohol counselling and anger management but it is not clear what the outcome of those efforts has been.
Ms Moya appears to hold hope for the future if further counselling and treatment is undertaken.
The Tribunal cannot be satisfied that the applicant has been successful in getting help with his own rehabilitation.
It has been urged on the Tribunal in submissions that the lack of access to appropriate treatment is not the applicant’s fault. They dispute the suggestion in the delegate’s decision at paragraph 30 that there “…is no evidence that he took steps to try to address his tendency to violence, even after coming to the attention of the law and being sanctioned”.
The Tribunal is prepared to accept the unsupported evidence of the applicant that he did make some effort to pursue counselling, but what is clear is that he has had very limited success in actually obtaining such help. The applicant’s representatives urge that this is not the applicant’s fault which may be true, but the Tribunal is concerned that the applicant appears to have significant and anger and anxiety issues and without substantial treatment he may pose a real risk of re offending.
Direction 65 makes it clear at 13.1.2 (2) b) that decisions should not be delayed in order for rehabilitative courses to be undertaken.
This consideration must weigh against the revocation of the cancellation of the applicant’s visa.
Primary Consideration b) Best Interests of Minor Children in Australia affected by the decision
This is the second of the Primary Considerations in Paragraph 13 of Direction No 65.
At the time of the application the applicant was in a relationship with a woman who had a child and there is a statement available to the Tribunal suggesting that the cancellation of the applicant’s visa would have a negative effect on the child.
The relationship has ended and the applicant no longer pursues that argument.
The applicant submits that he is an uncle to 3 children and that if the cancellation of his visa is not revoked there will be an impact on their parents and grandmother that will flow on to the children.
There is no further identification of the nature of the impact on the children or of its extent.
In submissions the representative of the respondent conceded that this would be a possible consideration in favour of revocation of the cancellation of the applicant’s visa but that it should be given little weight.
The Tribunal notes that subparagraph 13.2 of Direction No 65 sets out various factors to be considered under this head and notes that there is insufficient evidence to satisfy the Tribunal that this consideration should be given significant weight.
In particular, the applicant’s relationship with these children is not a parental relationship and there is nothing to suggest that the applicant has had substantial contact with them. The applicant has been in prison for most of the last 6 years. He gave evidence that he directed his family not to visit him in prison. Presumably, therefore, there has been at least one period of extended absence or limited meaningful contact in relation to the children.
There is no evidence of any Court orders for care arrangements and it would be surprising if there were any such orders.
It appears that there other persons who already fulfil a parental role in relation to the children, in particular their parents.
In view of the concession by the respondent, the Tribunal finds that the revocation would be in the best interests of the children referred to but accords this consideration little weight.
Primary Consideration c) Expectations of the Australian Community
Paragraph 13.3 (1) of Direction No.65 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The respondent referred to the decision of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] where he observed:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
The Tribunal’s consideration of the seriousness of the applicant’s offending is set out above.
The Tribunal is not satisfied that there is any evidence before it that would lead the Australian community to expect that the applicant should hold a visa. The Tribunal accords this consideration some weight.
Other Considerations
At paragraph 14, Direction No. 65 provides that other matters must be considered where relevant and, without limiting the Tribunal’s discretion, indicates some specific issues.
14.1 International non-refoulement obligations
The applicant made written submissions to the Tribunal which included an assertion that his safety would be at risk if he returned to Afghanistan.
He has said that because of his Hazara ethnicity and his Shia religion, his actual or imputed political opinion of the Taliban and similar Sunni militant extremists, his profile as a family member of someone who has been targeted by the Taliban and as a failed asylum-seeker who is “westernised” he has a well-founded fear of persecution in Afghanistan.
The applicant noted that it is open to him to apply for a protection visa but sought to distinguish between the considerations relevant to the grant of such a visa and what he described as the “discretion” in relation to non-refoulement obligations.
The respondent submits that because the applicant would be able to make a valid application for another visa if the mandatory cancellation is not revoked, the Tribunal is not obliged to determine whether non refoulement obligations are owed to the applicant under the terms of cl 14.1(4) of Direction No 65.
In the circumstances the Tribunal considers that it should give consideration to international non-refoulement obligations in considering this application.
Equally the Tribunal is under practical restrictions in considering non-refoulement obligations in the context of this application as opposed to an application for a protection visa[15].
[15] XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (29 November 2017) at para. 92 and following.
The applicant has not given evidence about his observance of his Shia religion. It is not clear to the Tribunal what the effect on him would be if he no longer follows that religion and were returned to Afghanistan.
The applicant does not suggest that, if he were to return to Afghanistan, he would be obliged or motivated to live in any particular part of that country.
The DFAT information does suggest that areas of Afghanistan would probably be dangerous to the applicant on the basis of his ethnicity alone.
Although the DFAT information indicates that parts of Afghanistan, and Kabul in particular may be relatively safe for the applicant, the Tribunal finds that there is some risk to him and this weighs in favour of the revocation of the cancellation of the applicant’s visa.
14.2 Strength, nature and duration of ties
The respondent accepts that the applicant has ties to Australia. He has lived here since he was 19 years old and his family live here too.
The respondent has sought to criticise the evidence provided by the applicant as to the impact on his family of the applicant on the basis that to some extent that evidence is not supported by testimony.
On balance the Tribunal has regard to the general evidence available to it in this regard and in particular to the report of Ms Stogandovic[16] as to the likely deleterious effect on the applicant’s mother’s mental health if the cancellation of the applicant’s visa is not revoked.
[16] Exhibit A 3.
Again, this factor must weigh in favour of the revocation of the cancellation of the applicant’s visa although it is an “other” consideration. The Tribunal gives this consideration some but not substantial weight.
14.3 Impact on Australian Business Interests
There is no evidence that this consideration is relevant to this application.
14.4 Impact on Victims
There is no evidence before the Tribunal with respect to this consideration.
14.5 Extent of Impediments If Removed
There is no doubt that the applicant will face impediments if removed as he is likely to face economic hardship, which is conceded by the respondent.
There is also a concession that there is an ongoing armed insurgency by the Taliban and other armed groups and that Hazaras citizens such as the applicant may be targets.
The respondent concedes and the Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the applicant’s visa.
CONCLUSION
The primary considerations in this matter weigh very heavily against the revocation of the cancellation of the applicant’s visa.
The other considerations give some support to the revocation of the cancellation of the applicant’s visa.
The terms of Direction No 65 indicate that greater weight is generally to be given to the primary considerations.
Having taken all primary considerations into account and all relevant other considerations, the Tribunal finds that there is not “another reason” why the original decision should be revoked.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin
................................[SGD].................................
Associate
Dated: 27 September 2018
Date of hearing: 6 September 2018 Counsel for the Applicant:
Solicitors for the Applicant:
Mr Barnes
Tern Visa and Migration Lawyers
Solicitors for the Respondent: Mr Hutton
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Statutory Construction
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