Muyobe and Minister for Home Affairs (Migration)
[2019] AATA 108
•25 January 2019
Muyobe and Minister for Home Affairs (Migration) [2019] AATA 108 (25 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6493
Re:Malipo Muyobe
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:25 January 2019
Place:Melbourne
The Tribunal:
1.sets aside the decision dated 31 October 2018 made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 to refuse to revoke the cancellation of the applicant’s Class XB, Subclass 200 (Refugee) visa under s 501(3A); and
2.substitutes a decision that the decision to cancel the applicant’s Class XB, Subclass 200 (Refugee) visa under s 501(3A) of the Migration Act 1958 be revoked.
[sgd]....................................................................
S A FORGIE
Deputy President
MIGRATION – mandatory visa cancellation due to substantial criminal record - refusal to revoke mandatory cancellation – decision set aside.
PRACTICE AND PROCEDURE – section 500(6H) – limits imposed by requirement that information be previously set out in a written statement on information that may be presented orally – nature of a written statement – whether statement of facts, issues and contentions is a written statement - whether all information must be identified in written statement – whether extends to submissions made in support of applicant’s case – limits apply only to information given orally in support of applicant’s case and not to information given in response to questions on behalf of Minister or Tribunal.
LEGISLATION
Acts Interpretation Act 1901 s 15AA(1)
Administrative Appeals Tribunal Act 1975 ss 2A, 25(1), 25(2), 25(6), 29, 33, 33(1), 33(1)(a), 33(1)(b), 33(1)(c), 39(1), 42A(1B) and 42A(1B)
Bail Act 1990 (QLD) s 33(1)
Criminal Code Act 1899 s 215(5)
Income Tax Assessment Act 1936 s 264
Migration Act 1958 ss 5(1), 5H to 5M, 36, 36(1A) to 36(7), 48, 48A, 48B, 65, 65(1)(a)(iii), 195A, 197A, 197C, 198, 494, 499, 499(1), 499(2), 499(2A), 500, 500(6A) to 500(6H), 500(6J), 501, 501(1), 501(3), 501(3A), 501(3A)(a)(ii), 501(CA), 501CA(3), 501CA(4), 501CA(4)(b)(ii), 501G(1), 501(G(3) and 501(6)(e)
Police Powers and Responsibilities Act 2000 (QLD)
Sales Tax Assessment Act 1992 s 108(1)
Migration Regulations 1994 r 2.16(3)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; [2017] 248 FCR 456; (2017) 248 FCR 456
Commissioner of Taxation v Hornibrook [2008] FCAFC 170; (2006) FCR 313; 65 ATR 1; 97 ALD 299
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
Fieldhouse v DCT (1989) 25 FCR 187
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378; 33 AAR 446
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1
Holcon Australia Pty Ltd v The Corporation of the Town of Walkerville [2006] SCASC 437
Insurance and Superannuation Commissioner v Robertson (1995) 30 ATR 239
Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268; 109 ALD 66
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; (2011) 196 FCR 509; 55 AAR 450; 126 ALD 454
Nitschke v Foaco Australia Pty Ltd [2014] SASC 88; (2014) 120 SASR 162
One Tel Limited and Others v Deputy Commissioner of Taxation [2000] FCA 270; (2000) 101 FCR 548; 171 ALR 227; 58 ALD 103; 44 ATR 52
Re Carmichael and the Minister for Immigration and Indigenous Affairs [2004] AATA 1024
Re Jagroop and Minister for Immigration and Border Protection [2015] AATA 751; (2015) 67 AAR 288
Re Msumba and Department of Immigration and Multicultural Affairs [2000] AATA 87; (2000) 31 AAR 192
Re Nguyen and Minister for Home Affairs [2018] AATA 4637
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Stuart and Oliphant and Seadon’s Contract [1896] 2 Ch 328
Re Suleman and Minister for Home Affairs [2018] AATA 2310
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 63 AAR 243; 141 ALD 395
Uelese v Minister for Immigration [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 66 AAR 136; 151 ALD 107
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No.65 made under s 499 of the Migration Act 1958
International Covenant on Civil and Political Rights and its Second Optional Protocol
1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol
REASONS FOR DECISION
Deputy President SA Forgie
Having been born in 1994 in the Democratic Republic of the Congo (DRC), Mr Malipo Muyobe came to Australia in 2010 when he was 16 years of age. On 16 February 2018, his Class XB, Subclass 200 (Refugee) visa (refugee visa) was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). As required by s 501CA(3) of the Migration Act, a delegate of the Minister for Home Affairs (Minister) invited Mr Muyobe to make representations to him regarding why he should revoke the cancellation decision. Mr Muyobe made those representations in a letter dated 15 March 2018 but his request that the cancellation decision be revoked was unsuccessful. In a letter dated 2 November 2018 and emailed to his representatives on that day, he was advised that a delegate of the Minister had decided on 31 October 2018 not to revoke the cancellation. The delegate made the decision under s 501CA(4) of the Migration Act on the basis that there was no other reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Migration Act. Mr Muyobe has sought review of that decision. I have decided to set aside that decision and to substitute a decision that the decision dated 31 October 2018 be revoked. The effect of my decision is that Mr Muyobe continues to be the holder of a Class XB, Subclass 200 (Refugee) visa.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which the Minister has cancelled Mr Muyobe’s visa. They also provide the basis on which I must consider his request for revocation of the decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
The delegate relied on s 501(6)(e) for the purposes of s 501(3A)(a)(ii). Section 501(6)(e) provides that, for the purposes s 501, a person does not pass the character test if:
“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; …”.
As Mr Muyobe was serving a sentence of imprisonment on a full-time basis for an offence against the law of, in this case, the State of Queensland, he came within the terms of s 501(3A)(b). That meant that the Minister was required to cancel his visa under s 501(3A) and had no discretion in the matter.
Where the Minister does have a discretion arises under s 501CA. Section 501CA is relevant when the Minister has, as he has in this case, made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:
“The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.”
[1] Migration Act; s 501CA(1)
The character test is defined in s 501(6) of the Migration Act. It sets out a number of circumstances and a person fails the character test if he or she comes within any one of those circumstances. Mr Muyobe comes within the first specified in s 501(6)(a) i.e. “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) also sets out a number of circumstances, all of which are expressed in the alternative. Mr Muyobe has a “substantial criminal record” within the meaning of the circumstances set out in s 501(7)(d) as he “…has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. I only have to take Mr Muyobe’s last two court appearances to exceed 12 months. He was sentenced to 10 months’ imprisonment on 7 September 2017 but he had been sentenced to two terms of two months’ imprisonment to be served concurrently when he appeared on 4 September 2017. That means that, from those two court appearances alone, Mr Muyobe is taken to have been sentenced to terms of imprisonment totalling 14 months when regard is had to s 501(7A).[2] Section 501(7A) provides:
“For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
[2] For Mr Muyobe’s full criminal record see [17] below
It follows from this that Mr Muyobe cannot satisfy s 501CA(4)(b)(i) and must rely on there being another reason why the Minister should revoke the cancellation decision within the meaning of s 501CA(4)(b)(ii). The way in which I am required to consider whether there is another reason was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
BACKGROUND
In this section of my reasons, I will set out the facts that are not in dispute between the parties and that I have found on the basis of the oral and written evidence. Mr Muyobe was born in the DRC. His mother was a member of the Manyema tribe and his father of Bafuliru ethnicity. There has been a long running dispute between the Bafuliru people and the Barundi people. The dispute relates to which of them should have control of the Ruzizi Plain, which is located in the province of South Kivu. Mr Muyobe’s paternal grandfather died in a road accident. His grandmother and two of her three children were killed as ethnic Bafuliru in 1998. Her son, Mr Muyobe’s father, escaped death at that time because the attackers failed to find him. Events led to violence including the killing of 30 people of Bafuliru ethnicity in 2014. The UNHCR found that Mr Muyobe’s father was a refugee on the basis of his having been targeted on the basis of his mixed ethnicity and on the basis that he was considered to be of Bafuliru ethnicity.
Mr Muyobe’s father found refuge in a refugee camp in Tanzania together with his wife and their eight children. At the time, Mr Muyobe was four years of age. The UNHCR found that, given the ongoing anti–Bafuliru sentiment in North and South Kivu, he would be at risk were he to return to South Kivu province. He had been targeted on the basis of his mixed ethnicity and was considered to be of Bafuliru ethnicity. Mr Muyobe’s father’s mother and siblings had been killed for that reason. Mr Muyobe had a well-founded fear of persecution for reasons of ethnicity and imputed political opinion stemming from his Bafuliru ethnicity and presumed support for Rwanda.
Based on the decision of the Tanzanian government that refugees accommodated in camps in western Tanzania would not be locally integrated, the Tanzanian government was closed its refugee camp in which Mr Muyobe’s family was located. It had previously closed another refugee camp in which they had been located. Taking into account the deteriorating situation in eastern DRC, the UNHCR did not consider voluntary repatriation to DRC to be an option for Mr Muyobe’s father. Therefore, it considered that settlement to a third country was the only viable option to ensure international protection of refugees from that camp.
Mr Muyobe’s father was sent an approval letter dated 8 January 2010 by the Australian High Commission approving his resettlement in Australia and that of his wife and their eight children.
Mr Muyobe and his former partner have three children. They are aged four, two and 14 months but the Department of Communities, Child Safety and Disability Services (Qld) (CCSDS Department) was concerned about their mother’s care for them. As a consequence, Mr Muyobe’s mother, Mrs Nyota Mweze, and his father were given their care as part of a voluntary safety plan administered by the CCSDS Department.[5] Mrs Mweze also has the care of Mr Muyobe’s eldest child as a result of an informal arrangement with her son’s partner. His eldest child is 4 years of age.[6] As well as caring for his children, Mr Muyobe’s parents also care for their youngest son who is now 16 years of age.
[5] G documents; G27 at 128
[6] G documents; G29 at 132
On 7 September 2017, Mr Muyobe was convicted of Unlawful Carnal Knowledge of a girl aged 14 years. When, on 10 October 2017, he was sentenced to ten months’ imprisonment for that offence, Mr Muyobe also had outstanding terms of imprisonment as a result of sentences imposed on 22 June 2017 and 4 September 2017 in relation to his having breached his bail or bail conditions. I will come to those a little later but they were all considered in determining the total period of Mr Muyobe’s imprisonment. Taking into account a credit of 27 days given in relation to the sentence imposed on 22 June 2017, Mr Muyobe had a period of imprisonment of one year, one month and 11 days to serve commencing from 26 May 2017.[7] Had he served the full term, his release date would have been 6 July 2018 with his being eligible to be considered for parole on 17 December 2017.
[7] That is, 27 days before sentence was imposed on 22 June 2017. See Exhibit 2 at 360
The Parole Board of Queensland (Parole Board) wrote to Mr Muyobe, who was then in a Queensland prison, advising him that, it had decided at its meeting on 16 February 2018 to grant his release on parole on 19 February 2018.[8] The Parole Board wrote to Mr Muyobe to advise him of its decision in a letter dated 16 February 2018. He was required to report to the Beenleigh Probation and Parole District Office as well as comply with a number of conditions. Most of those conditions became superfluous in view of the Parole Board’s direction that Mr Muyobe be granted and released on parole to the custody of the Australian Border Force (ABF) on 19 February 2018.
[8] Exhibit 2 at 338
The Parole Board directed that Mr Muyobe be released to the custody of the ABF because, also on 16 February 2018, an officer of the Department of Home Affairs (Department) had written to advise Mr Muyobe that, on that same day, his refugee visa had been cancelled under s 501(3A) of the Migration Act. Without a visa, he was not permitted to be released into the community. The officer advised Mr Muyobe that he could make representations asking for revocation of the cancellation.[9] While he was in the ABF’s custody, the Parole Board gave Mr Muyobe approval to travel interstate and overseas. Mr Muyobe was taken first to Christmas Island and then transferred to the Melbourne Immigration Transit Accommodation.
EVIDENCE RELATING CONVICTIONS AND PAROLE
[9] G documents; G31 at 139-147
Convictions and sentences
In this section of my reasons, I will set out Mr Muyobe’s convictions interspersed with other relevant material in a chronological fashion. I have set out the date on which the offences were committed in addition to the date of conviction. In some circumstances, knowledge of the timing of offences and convictions can be important for an offence may have been committed long before the matter comes before a court. In the meantime, a sentence may have been imposed for another offence. Unless the date of the earlier offence is known, the person may appear to have learnt nothing from the earlier court appearance or conviction or to have breached the conditions of a community corrections order (CCO) imposed by the court when, in fact, the offence before the court was committed at a time earlier than the imposition of a CCO.
Court
Court Date
Date of Offence
Offence
Court Result
Toowoomba Magistrates’ Court
14 May 2013
26 April 2013
Assault or obstruct police officer in breach of s 790(1), Criminal Code (Qld)
No conviction recorded.
Fined $200.
In default imprisonment: 2 days. Time to pay: 2 months.Beenleigh Magistrates’ Court
11 December 2014
20 November 2014
Trespass entering or remaining in dwelling or yard in breach of s 11(1), Criminal Code (Qld)
No conviction recorded.
Fined $200.
Time to pay: 2 months.Brisbane Magistrates’ Court
6 February 2015
24 January 2015
Commit public nuisance in breach of s 6(1), Summary Offences Act 2005 (Qld)
On all charges, no conviction recorded.
Fined $400.
Time to pay: 28 days.24 January 2015
Assault or obstruct police officer in breach of s 790(1), Criminal Code (Qld)
Brisbane Magistrates’ Court
17 June 2015
18 April 2015
Fail to leave licensed premises in breach of s 165(2), Criminal Code (Qld)
No conviction recorded.
Fined $200.
Time to pay: 28 days.Beenleigh Magistrates’ Court
1 September 2015
12 August 2015
Failure to appear in accordance with undertaking in breach of s 33(1) of the Bail Act 1990 (Qld)
Conviction recorded.
Fined $500.
Time to pay: 28 days.Brisbane Magistrates’ Court
8 December 2015
20 November 2015
Commit public nuisance in breach of s 6(1) of the Criminal Code (Qld)
On all charges conviction recorded.
Fined $350.
Time to pay: 28 days.20 November 2015
Contravene direction or requirement in breach of s 791(2) of Police Powers and Responsibilities Act 2000 (Qld).
Beenleigh Magistrates’ Court
4 May 2016
11 April 2016
Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
Conviction recorded.
Fined $50.
Time to pay: 1 month.25 April 2016
Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
Conviction recorded.
Not further punished.Beenleigh Magistrates’ Court
27 May 2016
23 May 2016
Failure to appear in accordance with undertaking in breach of s 33(1) of Bail Act 1990 (Qld)
Conviction recorded.
Fined $500.
Time to pay: 28 days.Beenleigh Magistrates’ Court
30 May 2016
16 May 2016
Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
On all charges conviction recorded.
Fined $500.
In default imprisonment: 20 days.
Time to pay: 3 months.Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
Toowoomba Magistrates’ Court
21 June 2016
21 June 2016
Breach of Bail Granted condition in breach of s 29(1) of Criminal Code (Qld)
On all charges, conviction recorded.
Sentenced imprisonment: one month.
To be suspended for: 12 months concurrent.21 June 2016
Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
21 June 2016
Breach of Bail Granted condition in breach of s 29(1) of Bail Act 1990 (Qld)
21 June 2016
Contravene direction or requirement in breach of s 791(2) of Police Powers and Responsibilities Act 2000 (Qld)
Conviction recorded.
Not further punished.Beenleigh Magistrates’ Court
25 August 2016
Breaches of order imposed on 21 June 2016 in breach of s 29(1) of the Bail Act 1990 (Qld)
On all charges, suspended sentence fully invoked.
Conviction recorded.
Sentenced to the rising of the Court in full discharge of the suspended sentence.16 August 2016
23 July 2016Breaches of Bail Granted condition in breach of s 29(1) of the Bail Act 1990 (Qld)
On all charges, no conviction recorded.
Not further punished.Beenleigh Magistrates’ Court
1 February 2017
29 August 2016
18 September 2016
13 September 2016Breaches of Bail Granted condition in breach of s 29(1) of the Bail Act 1990 (Qld)
On all charges conviction recorded.
Sentenced imprisonment: 137 days concurrent.
Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 137 days.
Mr Muyobe was held in pre-sentence custody for 137 days between 18 September 2016 and 1 February 2017.[10]
Beenleigh Magistrates’ Court
26 April 2017
3 and 27 February 2017; 11 March 2017; 29 March 2017
Breaches of Bail condition in breach of s 29(1) of the Bail Act 1990 (Qld)
On all charges conviction recorded.
Sentenced imprisonment: 2 months concurrent.
Declare that time spent in pre-sentence custody be deemed as time already served under this sentence: 20 days.
Parole release date: 26 April 2017.The terms of the court ordered parole was that Mr Muyobe was under the supervision of the chief executive of the Queensland Corrective Services and that he not commit any offence. Order in force until 6 June 2017.[11]
An officer of the ABF wrote to Queensland Prison Parole Liaison advising that it was monitoring all non-citizens convicted of criminal offences. It asked to be notified if Mr Muyobe were sentenced to 12 or more months of imprisonment either in a single sentence or cumulatively.[12]
Beenleigh Magistrates’ Court
22 June 2017
25 May 2017
(Breached condition of bail granted on 3 March 2017 that he not leave his residence between 7pm and 7am and present himself at the front entrance of the house when required by a police officer checking compliance.)[13]Breach of Bail condition in breach of s 29(1), Bail Act 1990 (Qld)
Conviction recorded.
Sentenced imprisonment: 4 months concurrent.
Declare that time spent in pre-sentence custody be deemed to be time already served under this sentence: 27 days.
Parole release date: 22 June 2017.The terms of the court ordered parole was that Mr Muyobe was under the supervision of the chief executive of the Queensland Corrective Services and that he not commit any offence. Order in force until 25 September 2017.[14]
On being released on 22 June 2017, Mr Muyobe had agreed to be referred to a culturally appropriate service to engage in intervention to address his mental health. The referral had been made when the Queensland Corrective Services had identified his “… primary criminogenic needs were identified within Relationships and Criminal Attitudes, poor cognitive thinking and anti-social attitudes. Also noting non criminogenic needs were identified within Accommodation, Employment/Finances, Substance Abuse and Mental Health. …”.[15]
Shortly after the referral had been made, however, Mr Muyobe was detained by the police and he has not engaged in the intervention.
Toowoomba Magistrates’ Court
4 September 2017
Pleaded guilty (3)[16]
3 September 2017
(Breached condition of bail entered 6 July 2016 and relating to charges arising from events on 24 January 2016 that he not consume alcohol and must submit to a breath test when requested by police. Breath test returned a reading of 0.057)[17]Breach of Bail Granted condition in breach of s 29(1), Bail Act 1990 (Qld)
Conviction recorded.
Sentenced imprisonment: 2 months concurrent.
Parole eligibility date: 4 September 2017.3 September 2017
(Breached condition of bail entered 6 July 2016 and relating to charges arising from events on 24 January 2016 that he not leave his residence between 7pm and 7am.)[18]Breach of Bail Granted condition in breach of s 29(1), Bail Act 1990 (Qld)
Conviction recorded.
Sentenced imprisonment: 2 months concurrent.
Parole eligibility date: 4 September 2017.2 September 2017
Mr Muyobe refused to state his full and correct name when request by police[19]Contravene direction or requirement in breach of s 791(2), Police Powers and Responsibilities Act 2000(Qld)
Conviction recorded.
Not further punished.Mr Muyobe was found by police shortly before midnight on 2 September 2017 in Toowoomba in breach of his bail conditions requiring him to meet a curfew and by returning a Blood Alcohol Content of 0.057 from a breath test.[20]
He was in breach of s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) because he would not provide his name to the police.
District Court at Toowoomba
7 September 2017
Jury trial: found guilty of carnal knowledge but not guilty of rape or indecent treatment of children under 16[21]
24 January 2016
Carnal knowledge in breach of s 215, Criminal Code (Qld)
Conviction recorded.
Sentenced 10 months’ imprisonment.
[10] Exhibit 2 at 407
[11] Exhibit 2 at 366
[12] Exhibit 2 at 378
[13] Exhibit 2 at 175
[14] Exhibit 2 at 365
[15] Exhibit 2 at 400
[16] Exhibit 2 at 146
[17] Exhibit 2 at 152 and see Undertaking as to Bail Following Committal for Trial signed by Mr Muyobe on 6 July 2016: Exhibit 2 at 162-163
[18] Exhibit 2 at 150-151
[19] Exhibit 2 at 150
[20] Exhibit 2 at 400
[21] Exhibit 2 at 147-148
Sentencing remarks made in relation to the conviction for carnal knowledge
Mr Muyobe was found not guilty of rape or of indecent treatment but guilty of carnal knowledge of a fourteen year old girl by a jury. The sentencing judge, Chowdhury DCJ of the District Court of Queensland, was satisfied that the jury had reached its verdict on the rape charge because the prosecution could not disprove that Mr Muyobe honestly and reasonably, but mistakenly, believed that the girl was consenting to sexual intercourse. Judge Chowdhury found that:
“The circumstances of the offending is quite clear. You had earlier been at a party where the two young girls were. There was drinking later that night. The girls went back to the unit when [where] Mr B… lived and, ultimately, ended up that you and Mr B… were in a bedroom with the two young girls. I am satisfied that there was some consensual hugging between you and …, but that then escalated to you removing her clothing and underwear and then having sexual intercourse with her.”[22]
[22] G documents; G6 at 40
According to the birthdate given to him of 1 January 1994, Mr Muyobe was 21 years of age at the time that he committed the offences of which he was convicted. His counsel submitted that Mr Muyobe was probably younger than that. Judge Chowdhury acknowledged that it was difficult to access birth records due to the turmoil in the DRC. He had very little that he could act upon in that regard but what he did find was that Mr Muyobe was “… clearly significantly older than the complainant who was only … [14 years] of age; even though she probably was not behaving like a … [14 year old].”[23]
[23] G documents; G6 at 40
As to the offences themselves, Judge Chowdhury said:
“The offence of unlawful carnal knowledge has always been viewed as serious for many years by the Courts. The age of consent of 16 years has been set for many years now and it is done with a good purpose in mind, is that even though young women may be physically mature, they do not have the emotional maturity to deal with the consequences of having consensual sexual intercourse or sexual activity and fully understand the implications of it. You were, no doubt, affected by alcohol. It has clouded your decision-making. The girls, no doubt, were affected by alcohol. …
…
The law is quite clear that for offences of a sexual nature committed against a child under the age of 16 by an adult, actual imprisonment must be served unless exceptional circumstances have been established. There was a significant gap in age between you and …, and being an older male, it should have been obvious to you that the girls had been drinking and probably needed to be looked after, rather than taken advantage of, and in those circumstances, your decision to have sexual intercourse with a much younger girl is a serious matter. It is certainly not as serious as a lot of the cases that have been referred to me, where there have been many more offences, or where there has been a consensual relationship involving a lot more sexual activity.
In the end, I am not satisfied there are exceptional circumstances. I am required, by law, to order you to serve an actual term of imprisonment. Ordinarily, I would have sentenced you to 12 months’ imprisonment for this offence, but having regard to your offer or at least, the approach to the Prosecution to plead this charge at an early stage, your traumatic background, and the fact that your have served some time in custody – albeit, it is your own fault for breach of bail orders – I sentence you to 10 months’ imprisonment, conviction is automatically recorded. …”[24]
[24] G documents; G6 at 40-42
Notes by Queensland Corrective Services
During his term of imprisonment, Mr Muyobe worked first as a unit cleaner but, from 21 December 2017, he began employment as a Senior Industry Worker (Light Metal). At the time, the Queensland Corrective Services prepared a report for the Parole Board in or about December 2017, Mr Muyobe had yet to be formally assessed for programs although an assessment had been requested. An earlier Benchmark Assessment approved on 25 August 2017 had noted that his Support Worker had noted that Mr Muyobe had been diagnosed with PTSD as a result of living in camps in the DRC. Mr Muyobe had received some counselling when he first came to Australia but his Support Worker believed that he required further counselling. His Support Worker stated that Mr Muyobe experiences anxiety connected with police presence and his anxiety is due to police brutality experienced in the DRC. Mr Muyobe had acknowledged anxiety and some depression to his Support Worker but he has also been reluctant to discuss his mental health status. The
view was expressed by the Queensland Corrective Services that:
“… it appears MUYOBE’s experiences with police brutality in the Congo are somewhat transferred to his current situation with him expressing anxiety during contact with QPS at this time noting his numerous breaches of bail and also the seriousness of his outstanding offences warranting strict bail conditions. It appears the regular QPS contact may be exacerbating his mental health issues, noting it further appears these are largely untreated.”[25]
[25] Exhibit 2 at 402
In the report by the Queensland Corrective Services, Mr Muyobe had stated that he had plans to abstain from alcohol when released as he felt that alcohol had led him to his current position. He and his family are practising Jehovah’s Witnesses and he planned to follow his faith more strictly upon his release. Mr Muyobe had articulated a plan to engage with his Support Worker and with the DRC Community President as he had previously had engaged with them and felt that they could offer him and his family support on his release.[26] The comment made by the Queensland Corrective Services was that:
“Within the parole interview the prisoner presented as genuine in his intentions to actively engage in positive pro-social activities and maintain a positive, pro social lifestyle. He articulated an awareness of support available from agencies within the community and provided insight into what these support agencies could provide to assist him to address his and re-integration needs.
Prisoner MUYOBE does appear to have started to develop appropriate risk mitigation strategies which can be further developed with support in the community. It is considered he would benefit from engagement with professional support agencies in the community to assist him to develop a strong safety network for his release. It is also considered that should the prisoner be released to parole that he should be subject to a curfew to minimise his high risk situations.
It is noted that the prisoner is currently of interest to Australian Boarder [sic] Force but to date no cancellation order has been received.
In consideration of the above the author respectfully recommends that prisoner MUYOBE’s application for parole be approved.
The prisoner was encouraged to continue to demonstrate appropriate custodial behaviour, engage in pro-social activities and continue developing robust plans in preparation for his release from custody.’[27]
[26] Exhibit 2 at 403
[27] Exhibit 2 at 404-405
SECTION 500(6H)
Sections 500(6A) to (6H) of the Migration Act set out a particular procedure that must be followed by an applicant for review and by the Tribunal when a delegate of the Minister has made a decision under s 501 or has made a decision under s 501CA(4) not to revoke a decision to cancel a visa. The best known of them is that an applicant who is in the migration zone and who seeks review of such a decision has nine days after the day on which he or she was notified of the decision under s 501G(1) within which to lodge his or her application for review in the Tribunal.[28] Another is found in s 500(6H), which provides:
“If:
(a)an application is made to the Tribunal for a review of a decision under … subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.”
[28] Migration Act; s 500(6B). Section 501G(3) requires that the notice given under s 501G(1) must be given in the prescribed manner. The “prescribed manner” in this context is that set out in s 494B of the Migration Act: Migration Regulations 1994; r 2.16(3). If the application is not lodged within nine days of being given in the prescribed manner, the Tribunal does not have jurisdiction to hear the application. That follows from the fact that it only has power to review a decision if an enactment or regulations have provided that an application may be made to the Tribunal: Administrative Appeals Tribunal Act 1975 (AAT Act); ss 25(1) and (2). The enactment may specify conditions and may, as recognised in s 25(6) of the AAT Act, modify the operation of particular of it provisions. The Migration Act has done that in this instance by replacing the periods within which an application may be lodged under s 29 of the AAT Act with a nine day period that cannot be extended: Migration Act; s 500(6B). If an application is lodged outside that nine day window, the Tribunal does not have jurisdiction. It cannot gain that jurisdiction by ignoring the fact of late lodgement or, if the Minister were to agree, by agreement between the applicant and the Minister: see, for example, Commissioner of Taxation v Hornibrook [2008] FCAFC 170; (2006) FCR 313; 65 ATR 1; 2006 ATC 4761; 97 ALD 299; Gyles, Stone and Young JJ at [110]; 341; 27; 4,784; 326 per Young J and Luck v University of Southern Queensland [2009] FCAFC 73; (2009) 176 FCR 268; 109 ALD 66; North, Graham and Rares JJ at [97]; 292; 88 per Rares J.
The interpretation and application of s 500(6H) became an issue when Mr Muyobe’s mother, Mrs Mweze, gave oral evidence regarding her grandchildren and the contact that they had with their father. A Statutory Declaration made by Mrs Mweze had been lodged on 8 January 2019. In it, she said:
“1. I intend to provide evidence before the Administrative Appeals Tribunal in matter 2018/6493 in support of the Applicant, my son, Malipo Muyobe.
2.The substance of my evidence is set out in a 14 March 2018 letter previously submitted to the Department of Home Affairs. I have been informed by my son’s legal representative that the letter is document G16 of the documents provided to the Tribunal by the Respondent.”
In her letter of 14 March 2018, Mrs Mweze had written about her three grandchildren:
“My son Malipo has three children who need care from their own parent as their mother cannot take care for them. Indeed, … [the children] need their own father who they knew only on photos only. I always cry for my son Malipo, the situation which makes me remember difficulties I passed through before I came to Australia so that I can live with peace and hope. Look now that the happiness has become unstoppable crying and sadness, things that I did not want to happen in my life anymore.
Hence, please I would like to ask to help me so that my son can come and be with his family so that he can take care of his family which needs him so much especially during this period in which were getting sick.”[29]
[29] G documents; G16 at 103
In answer to questions by her son’s solicitor, Mrs Mweze said that her son loves and cares for his children. He cooks for them and washes their clothes. While her son was in prison, Mrs Mweze said, and she could visit him, she would take his youngest child with her. Her son also called home and she would give the phone to the children who would talk with him. Now that her son is in immigration detention, they do not see him but talk to him on the phone about three times each week. The eldest child knows his father’s face but she shows the little ones pictures of him. The children keep asking when he is coming back and they do not sleep. She does not sleep and nor does her husband.
Mrs Mweze’s letter did not mention her son’s younger siblings. In giving evidence in examination in chief, Mrs Mweze said that her youngest child used to cry. He would talk to his younger brother and sister on the phone from the prison.
In the Statement of Facts, Issues and Contentions of the Applicant (Applicant’s SFIC), it was said:
“20.3.1 We contend that the Applicant is the biological father of the children and has been active in his parental role since their birth (with the exception of … [his youngest child] who was born while the Applicant was in prison).
20.3.2We contend that the Applicant has played a positive role in the lives of his children. The Applicant plans to continue to play a positive role in the lives of his children by assuming that the primary parental role upon his return to the community. We further contend that the Applicant has played a positive role in the lives of his minor siblings. The Applicant plans to continue to support his siblings upon his return to the community.
20.3.3 We contend that there is no indication that the Applicant’s prior conduct has had any negative impact on his children or his siblings.
20.3.4We contend that significant negative effects are already being experienced by the Applicant’s children and siblings due to the cancellation of his visa. They have undergone the trauma of expecting to reconnect with their father and brother upon his release on parole only to be denied this opportunity due to his immediate removal to various immigration detention centres. The young age of the Applicant’s children means that they are capable of maintaining a relationship with their father without his physical presence. We contend that the children are also being negatively affected by the uncertainty surrounding the length of time that the Applicant will be kept from them. We also contend that this uncertainty is having significant negative effects on the Applicant’s minor siblings as they are being subjected to the on-going stress of not knowing if or when they will see their brother.
We further contend that the Applicant’s youngest child … faces the prospect of living his entire childhood as a de facto orphan should the cancellation not be revoked. The trend of increasingly minimal contact … has with his mother appears unlikely to change to the point that it is very likely that he will have no contact with her or memory of her. Additionally, the prospect of the Applicant’s indefinite detention in circumstances were … because of distant [sic], would not be able to visit him would effectively render him fatherless. We contend that it is not in …’s best interests to be denied a father who is capable and willing to provide loving support.
20.3.5The Applicant is separated from his children’s mother and plans to support his children by assuming the primary parental role. We contend that the children’s mother, as previously indicated, is not in a position to care of [sic] the children nor does she desire to assume a parental role.
The children are currently in the care of the Applicant’s parents which, while more appropriate than being in the care of their mother, will not provide them with level of support that they father can provide them. The Applicant’s father is unwell and is not in a position to render much parental support to his grandchildren. The Applicant’s mother’s English skills are very limited and the development of the children’s English comprehension is being significantly impeded in the absence of their father. Their preparation for Primary School would continue to be negatively affected should the Applicant’s visa cancellation not be revoked. We contend that the long term educational prospects of the children are likely to be poor if the provision of education support at home is limited to what the Applicant’s mother can provide.
20.3.6We contend that there is no evidence of any neglect of the Applicant’s children or siblings nor is there any evidence of them suffering abuse. To the contrary, we contend that the children have a strong and healthy connection to their father and brother. We further contend that this strong connection will also be established between the Applicant and his youngest son upon his return to his family.
20.3.7We contend that there is no evidence that his children or siblings have been traumatised by the Applicant’s offending. They have, however, experienced a loss of contact with their biological father during the Applicant’s imprisonment. This loss has been exacerbated through his current detention. Trauma to the children is likely to be significant should the Applicant’s detention become indefinite. The young age of the children means that the majority of their childhood would be experienced without the support of and care of their biological father. The oldest son would be subjected to 15 years of childhood without his father by the time he is 18 years old. The other children would be subject to greater lengths of 16 and 17 years of a fatherless childhood, respectively.
Similarly, we contend that the Applicant’s siblings would complete their childhood and teenage years without the support of their brother should the cancellation of his visa not be revoked.
20.3.8We contend that the Applicant’s children have been effectively abandoned by their mother and are currently being deprived of their father’s love and support during a critical period of their childhood. The Applicant is a committed father who wishes only the best for his children and his return to their lives will be in their best interests. The Applicant’s return to his children, via the revocation of the cancellation of his visa, would begin the process of healing the suffering they have experienced from their mother’s inability to care for them and their lengthy separation from their father.”
Two questions arise. One is whether, putting aside other material that may meet the requirements of s 500(6H), does the material in the Applicant’s SFIC cover the information or evidence given by Mrs Mweze orally in support of her son’s case regarding her grandchildren or by Mr Muyobe? A second question is whether the material meets the description of “information … set out in a written statement …”? If it does so, there is no question that it was given to the Minister at least two business days before I held the hearing. I gave the parties an opportunity to lodge written submissions on this issue. On behalf of the Minister, Mr Cunynghame did so on 22 January 2019 and Mr Ewikowski did so on the following day on behalf of Mr Muyobe. I have had regard to both.
I will begin with the submissions made on behalf of Mr Muyobe drawing my attention to the objectives the Tribunal must pursue in carrying out its functions and providing a mechanism of review. They are set out in s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act). He referred also to s 33(1) which is entitled “Procedure of the Tribunal”. Relying on them, he drew my attention to two statements made in a paper entitled “How to run a merits review application before the Administrative Appeals Tribunal” (Paper):[30]
“The statement facts, issues and contentions (SFIC) is the Tribunal’s pleading document. A well-drafted SFIC helps to focus the proceedings and limit the issues. It is also the first document most members will read.”[31]
“The reference to informality means the Tribunal will avoid unnecessary rigidity – that it will be prepared to manipulate particular forms – in its conduct of the review process. Informality in that sense means flexibility. Within reason, the Tribunal will use its power in s 33(1) to adapt the form of its processes to meet the exigencies of each case and the special needs of the parties. …”[32]
[30] Kerr J, President of the Tribunal and Deputy President McCabe, Division Head of the Taxation and Commercial Division presented to the NSW Bar Association on 21 March 2017.
[31] Paper at 11
[32] Paper at 4
Mr Ewikowski submitted that the oral evidence given by Mr Muyobe and his mother was given in a manner consistent with the AAT Act and its objectives. The Applicant’s SFIC clearly informed the Minister of Mr Muyobe’s entire case before oral evidence was provided. Section 500(6H) should not be read down to limit the admissibility of oral evidence to the information contained in a written witness statement because it may, in some circumstances, be unnecessary to do so in order to give effect to the purpose of the section. The interpretation of statutory provisions is to be done in a manner that achieves their purpose. That is the effect of s 15AA(1) of the Acts Interpretation Act 1901 (AI Act). The purpose of s 500(6H) has been set out in the case of Goldie v Minister for Immigration and Multicultural Affairs.[33] Mr Ewikowski submitted that the oral evidence provided to the Tribunal by Mr Muyobe and his mother did not run contrary to the purpose of s 500(6H). It did not change the nature of the case and nor did it catch the Minister by surprise. Section 500(6H) should not be read down in a manner that limits consideration of the information provided to the Minister to information contained in witness statements alone. Regard can also be had to information in the Applicant’s SFIC and other documents.
[33] [2001] FCA 1318; (2001) 111 FCR 378; 33 AAR 446; Gray, RD Nicholson and Stone JJ
By way of a general comment, I note that the Tribunal is a creation of the Parliament. Its jurisdiction and its powers are prescribed by Parliament in statute and by the executive government by regulations made within the authority conferred by statute. The AAT Act is the statute by which Parliament created the Tribunal and it sets out the procedural framework within which the Tribunal generally operates. As Mr Ewikowski submitted, s 33(1)(b) requires the Tribunal to conduct a proceeding with as little formality, technicality and as much expedition as the requirements of the Act and of every other relevant enactment and a proper consideration of the matters permit. The Tribunal’s procedure is, subject to the AAT Act and the regulations and to any other enactment, within the Tribunal’s discretion. That is the effect of s 33(1)(a) and s 500(6H) is a provision of another enactment that affects the Tribunal’s procedure. It is also a provision that affects the operation of s 33(1)(c) when it provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. Section 33(1)(c) does not expressly state that it is subject to other provisions of the AAT Act or regulations or of any other enactment but s 25(6) provides that, if an enactment provides for applications to the Tribunal, that enactment may add to, exclude or modify the operation of provisions of the AAT Act including s 33. That is what s 500(6H) has done.
That means that I must look to s 500(6H) to determine the nature and boundaries of the modification that it has made to the Tribunal’s procedures. I will begin with the ordinary meanings of “information”, which include:
“… knowledge gained or given; facts; news. … “[34]
[34] Chambers 21st Century Dictionary (1999, reprinted 2004) (Chambers)
The word was also considered by Burchett J in One Tel Limited and Others v Deputy Commissioner of Taxation[35] in the context of s 108(1) of the Sales Tax Assessment Act 1992 (STA Act). That section allows the Commissioner of Taxation to require a person to provide “information”. His Honour referred to Re Stuart and Olivant and Seadon’s Contract,[36] Insurance and Superannuation Commissioner v Robertson[37] and Fieldhouse v Deputy Commissioner of Taxation.[38] In the last of these cases, Hill J, with whom Burchett J had agreed, had equated the word “information” with “knowledge” in the context of s 264 of the Income Tax Assessment Act 1936, which was expressed in terms similar to s 108(1) of the STA Act. After bearing in mind that “… the language of a judicial exposition of the terms of a statute should never be substituted for the very words of the statute itself…”,[39] Burchett J concluded that:
“So s 108 is concerned with the communication to the Commissioner of knowledge about facts or a particular subject which a person is able to provide and the Commissioner requires for the purpose of enabling him to apply the sales tax law in relation to the person or some other person.”[40]
[35] [2000] FCA 270; (2000) 101 FCR 548; 171 ALR 227; 58 ALD 103; 44 ATR 52
[36] [1896] 2 Ch 328 at 334
[37] (1995) 30 ATR 239 at 240
[38] (1989) 25 FCR 187 at 207
[39] [2000] FCA 270; (2000) 101 FCR 548; 171 ALR 227; 58 ALD 103; 44 ATR 52 at [14]; 558; 236; 111; 60
[40] [2000] FCA 270; (2000) 101 FCR 548; 171 ALR 227; 58 ALD 103; 44 ATR 52 at [14]; 558; 236-7; 112; 61
The statutory scheme, of which s 500(6H) is a part, is equally important in understanding its meaning. That scheme was summarised by Gray J in Goldie v Minister for Immigration and Multicultural Affairs:[41]
“25 The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business days' notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the eighty-four day time limit for the whole process, laid down in subs (6L).
26 It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing. Being forewarned as to the entirety of the case of the applicant for review, the Minister is better able to respond to the case. …”[42]
[41] [2001] FCA 1318; (2001) 111 FCR 378; 33 AAR 446; Gray, RD Nicholson and Stone JJ
[42] [2001] FCA 1318; (2001) 111 FCR 378; 33 AAR 446 at 457-458
In the case of Re Carmichael and the Minister for Immigration and Multicultural and Indigenous Affairs[43] (Carmichael), I considered the meaning of the word “information” in the legislative scheme in which it appears and in light of the purpose of that scheme. A document entitled “Statement of witnesses” had been given to the Minister but summarised the topics to be covered by each witness in giving evidence. In relation to Mrs Carmichael,
for example, the document stated:
“This witness to give evidence as to the arrival of the applicant in Australia, the nature of his upbringing, his personality and other matters he has disclosed during his upbringing and her observations as to any change in the applicant especially his behaviour in the last 12 months.”[44]
[43] [2004] AATA 1024
[44] [2004] AATA 1024 at [46]
I said of that statement:
“ If the Minister is to have the advantage intended by Parliament, the “information” to which reference is made in s 500(6H) must be a reference to a person’s knowledge about facts or about a particular subject matter that is presented in support of an applicant’s case. It is not a reference to the topics on which a person has knowledge about those facts or that subject matter. It cannot be for only by being forewarned of the person’s knowledge in a written statement given to the Minister at least two clear business days before the hearing, is the Minister given the opportunity to be better able to respond to an applicant’s case. Forewarning of the topics alone without the detail does not give the Minister that opportunity.”[45]
[45] [2004] AATA 1024 at [50]
I continue to hold that view but also to acknowledge that whether or not s 500(6H) operates to exclude oral evidence must be considered with some care. In Carmichael, I considered what appeared to be a statement of topics to be addressed by each witness and concluded:
“ Whether or not information has been set out in any written statement given to the Tribunal is a matter of fact and degree. It seems to me that the information that a witness is to present orally to the Tribunal must, on the face of s 500(6H), either be expressly stated in a written statement or must necessarily be implicit in it. If for example, an applicant’s spouse were to say in a written statement that she had noticed his behaviour had improved in the previous year in relation to his dealings with his family and outsiders, it is arguable that she could expand on that in giving oral evidence by giving examples of his improved behaviour. Mr Haskett’s statement that Mr and Mrs Carmichael will give their ‘… observations as to any change in the applicant especially his behaviour in the last 12 months’ is more questionable. The words ‘any change’ do not automatically lead to the conclusion that there has been an improvement in their son’s behaviour in that time or, indeed, whether there has been any change at all. I do not consider that the statement meets the requirements of s 500(6H). The remainder of the statements cause me similar problems. They are addressed to broad topics only and do not possess the degree of particularity to amount to ‘information’ in the sense required by that section.”[46]
[46] [2004] AATA 1024 at [51]
This is an approach that was taken by Deputy President McMahon in Re Msumba and Department of Immigration and Multicultural Affairs[47] (Msumba) when he said:
“…I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination.”[48]
[47] [2000] AATA 87; (2000) 31 AAR 192
[48] [2000] AATA 87; (2000) 31 AAR 192 at [5]; 194
It is also the approach taken by Katzmann J in SZRTN v Minister for Immigration and Border Protection[49] (SZRTN), to which Mr Cunynghame drew my attention on behalf of the Minister:
“ The purpose of the scheme in s 500 is to prevent an applicant from changing the nature of the case, catching the Minister by surprise and forcing the Tribunal into adjourning the proceedings: Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378 at [25]; Uelese v Minister for Immigration and Citizenship (2013) 60 AAR 534; [2013] FCAFC 86 at [31]–[32]. If the oral evidence does not change the nature of the case and merely puts flesh on the bones, so to speak, it may be doubted whether it can be excluded. There seems to me to be no reason why a witness could not be called to speak to his or her statement, to correct any inaccuracies, to explain any ambiguities, or to elaborate upon certain matters as long as in so doing the witness does not stray outside the subject matter of the material covered in the statement. Indeed, the Tribunal has decided as much itself. In Kim and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 239 at [106], Block DP held that ‘statement’ in s 500(6H) refers to a statement that contains the information to be presented orally. There would, however, be no point in having a witness merely repeat what is said in writing. …”.
Her Honour went on to cite Msumba when Deputy President McMahon said:
“Read literally, the subsection would restrict a witness simply to reading the statement which had been previously furnished. It would preclude any information elicited by the Department's advocate by way of cross examination, unless it could be said that such information was not in support of the applicant's case. I have taken the view that the policy of the legislation at least allows examination in chief to explain or amplify material in the written statement and allows that information to be tested by way of cross-examination.”[50]
[49] [2014] FCA 303; (2014) 63 AAR 243; 141 ALD 395
[50] [2000] AATA 87; (2000) 31 AAR 192 at [5]; 193-194
In Carmichael, the fact that the Statement of witnesses did not provide sufficient information to permit me to have regard to the oral evidence, did not mean that I could not look elsewhere in the material for that information. As I said in that case:
“… There is, however, other written material in the G documents. That includes a letter written by Mr Carmichael and another by his mother. There is also a copy of his interview by an officer of the Department on 30 January 2004. Each can be regarded as a ‘written statement’ and there is no requirement that the ‘written statement” be in any particular form or have been prepared at any particular time. The focus of s 500(6H) it seems to me, is on the provision of the information and, apart from its being in writing, not upon its form or the time of its being communicated provided it is provided no later than two business days before the hearing.”[51]
[51] [2004] AATA 1024 at [57]
In looking at the other material, it seems to me that I must be careful to identify what is “information” for not every statement made in written material comes within that description. I take, for example, [20.3.1] of the Applicant’s SFIC when it was said:
“We contend that the Applicant is the biological father of the children and has been active in his parental role since their birth (with the exception of … [his youngest child] who was born while the Applicant was in prison).”
To “contend” is “… to argue earnestly. … to say, maintain or assert something. …”.[52] In this paragraph, Mr Muyobe’s solicitor is making an argument or an assertion that Mr Muyobe is the children’s father and that he has been active in his parental role since their birth. Is that “information” in the sense that the word is used in s 500(6H)?
[52] Chambers
Does it help me to view the Applicant’s SFIC as a pleading? I have the passage from the Paper in which it is said that a well drafted SFIC helps to focus the hearing and limit the issues. This is not the occasion to undertake a detailed comparison of a SFIC in the Tribunal and a pleading in a court but I will make some general comments. The nature of a pleading was described by the High Court in Dare v Pulham:[53]
“ Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81; (1916) 22 CLR 490, at p 517); they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [1936] HCA 13; (1936) 54 CLR 572, at pp 576-577); and they give a defendant an understanding of a plaintiff's claim in aid of the defendant’s right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 127), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668).”[54]
[53] [1982] HCA 70; (1982) 148 CLR 658; Murphy, Wilson, Brennan, Deane and Dawson JJ
[54] [1982] HCA 70; (1982) 148 CLR 658 at [6]; 664
What this passage shows is that the pleadings are the vehicle for stating the parties’ cases but it is not a vehicle for providing a statement or statements of the evidence. As the High Court said, the pleadings “… define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …” (emphasis added). The evidence is separate from the issues. This was made clear by Stanley J in Nitschke v Foraco Australia Pty Ltd:[55]
“A proper pleading will contain the material but not all the facts and will contain sufficient particulars being material facts necessary to give fair notice. Whether the material facts and whether sufficient particulars have been pleaded will depend upon the cause of action, the complexities of the case and the whole of the circumstances of the case.”[56]
A proper pleading must contain all material facts and not merely a cause of action based on a hypothesis[57] but it is a material fact, and not evidence, which is pleaded.[58] Pleadings define the issues in the case.
[55] [2014] SASC 88; (2014) 120 SASR 162
[56] [2014] SASC 88; (2014) 120 SASR 162 at [30]; 168
[57] [2014] SASC 88; (2014) 120 SASR 162 at [33]; 169
[58] Holcon Australia Pty Ltd v The Corporation of the Town of Walkerville [2006] SCASC 437 at [18]; White J and cited with approval in Nitschke v Foaco Australia Pty Ltd [2014] SASC 88; (2014) 120 SASR 162 at [34]; 169
A SFIC shares similarities with pleadings. It is similar in that it sets out a statement of issues as each party sees them as well as each party’s contentions regarding those issues and the facts. Generally, a SFIC would not set out the evidence on which each party relies just as pleadings would not. Unlike pleadings in a court, SFICs lodged by the parties do not define the issues to be determined by the Tribunal in that case. The Tribunal has a duty to consider the issues raised by the relevant enactment and the material even when the those issues have not been raised by the parties in their SFICs or elsewhere. The Full Court of the Federal Court explained in in Grant v Repatriation Commission:[59]
“An inquisitorial review conducted by the AAT ... is one in which the tribunal is required to determine the substantive issues raised by the material and evidence advanced before it and, in doing so, it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant ...”[60]
[59] [1999] FCA 1629; (1999) 57 ALD 1; Merkel, Goldberg and Weinberg JJ
[60] [1999] FCA 1629; (1999) 57 ALD 1 at [18]; 6
That said, it does not seem to me that a discussion about any similarities or differences between pleadings in a court and a SFIC in the Tribunal leads me to conclude that a SFIC satisfies the requirements of s 500(6H) as setting out information in a written statement. Whether it does so, depends on its contents and whether those contents can be characterised as “information” for the SFIC is clearly a written statement.
I will begin with the nature of the contentions that have been made in the Applicant’s SFIC. I set out the meaning of “contend” at [42] above. Contentions made in that SFIC are certainly information in the sense that they provide knowledge of the contentions. The Minister has been made aware that this is Mr Muyobe’s contention but can that contention be relied upon to support the proposition that his oral evidence and that of his mother regarding how he has been active in that parental role may be relied upon in light of s 500(6H)? As I said in Carmichael, whether or not information has been set out in any written statement given to the Minister is a matter of fact and degree.A written statement may take any form and need not be a witness statement. It may be a statement of the witness who is giving oral evidence or a statement that was made for a different purpose but is included either in the G documents or in other material given to the Minister and lodged in the Tribunal. It may be referred to in a report as having been said by that witness on another occasion. The essential requirement if s 500(6H) is that the Minister has been given the information in writing and has had two or more business days to consider it. He has had that opportunity in whatever form the written statement takes.
To take a narrower view of s 500(6H) when Parliament has not chosen to prescribe the source or nature of the “written statement” would, I suggest, be to take too narrow a view. Section 500(6H) must be viewed against a background of s 33(1)(c) of the AAT Act when it provides that the Tribunal is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks fit. Reading s 33(1)(c), which has not been expressly modified by the Migration Act, together with s 500(6H), the “written statement” need be in no particular form provided it is in writing and it is “a thing stated”.[61] There is, for example, no requirement that a statement be a signed statement.[62]
[61] Chambers
[62] Mordechai v Minister for Immigration and Citizenship [2011] FCA 986; (2011) 196 FCR 509; 55 AAR 450; 126 ALD 454 at [39]; 517; 462; 459;
That said, is a contention a “written statement” of the information presented orally by Mrs Mweze and Mr Muyobe? In the example I have given from [20.3.1] of the Applicant’s SFIC, I do not think that it can be. The statement is made that he has been active in his parental role but no details at all are given as to how he has been so active. The Minister is given no information of particulars about which he can make enquiries, if he wished, and consider. The contention does not go so far that I could say that information regarding the way Mr Muyobe has been active in his parenting role could be implied from what is said in the contention made on his behalf. It is neither expressly stated nor implicit in the following paragraphs of the Applicant’s SFIC that I have set out at [28] above.
Mr Ewikowski relied on the passage in the judgment of Katzmann J in SZRTN when she said that oral evidence may be accepted if it does not change the nature of the case and merely puts flesh on the bones. Referring back to the words of s 500(6H), it seems to me that the bones, to which her Honour refers, must be found in the written statement. If the bones are not to be found there either expressly or implicitly, I have nothing to clothe with the oral evidence. A statement made in a written contention may provide a foundation but, whether it does, requires a consideration on each occasion. In this instance, I do not think that it does provide that foundation. At [20.3.1], it is contended that Mr Muyobe has been active in his parental role and yet at [20.3.7], it is said that it is said that the children have experienced a loss of contact with him during his imprisonment and his subsequent immigration detention. At [20.3.8], it is contended that the children are currently deprived of their father’s love and support during a critical period of their childhood. These are contentions unsupported by evidence and I venture to suggest that they may be regarded as inconsistent contentions. Even if they can be regarded as statements of fact, they do not provide the bones to support oral evidence to the effect that there has been contact between Mr Muyobe and his children as described by Mrs Mweze. Therefore, I do not consider that I can have regard to the oral evidence given by Mr Muyobe in response to his solicitor’s questions regarding his parenting role in caring for his children or to that of his mother in response to his solicitor on that issue.
My conclusion does not mean that every statement made in the Applicant’s SFIC regarding the children must be disregarded. A statement is made at [20.3.5] that Mr Muyobe is separated from his children’s mother and plans to support his children by assuming the primary parental role. It is a statement of information regarding his intention. That is to be contrasted with a contention at [20.3.4] that significant negative effects are already being experienced by his children due to the cancellation of his refugee visa. It is a contention unsupported by any information in the form of a reference to any facts or evidentiary material to support it. I cannot have regard to oral evidence directed to that issue just as I cannot have regard to the statement that uncertainty regarding Mr Muyobe’s position is having significant negative effects on his minor siblings. I do not have any information as to how that is so. A contention that it is so does not provide that information and denies the Minister the opportunity to make his own enquiries or to consider it. It cannot be regarded as a written statement of information within the meaning of s 500(6H) and so I cannot have regard to information presented orally to that effect at the hearing.
Even if the information was not included in a written statement, I may have regard to evidence Mr Muyobe and his mother gave in response to questions by the Minister’s solicitor or by me on the same subject. Evidence given in that context is not “information presented orally in support of … [his] case”. This was the view of the High Court in Uelese
v Minister for Immigration[63] and it was explained by Nettle J:
“ An applicant’s answer to a question asked of him or her or one of his or her witnesses in the course of cross-examination cannot rationally be conceived of as information presented orally in support of the applicant’s case. According to ordinary acceptation, such an answer is information elicited orally at the instance of the Minister with the aim of derogating from the applicant’s case and thereby or otherwise supporting the Minister’s case.
Of course, the Minister’s cross-examination of an applicant or one of the witnesses called by an applicant could result in answers supportive of the applicant’s case or which derogate from the Minister’s case, just as may have occurred here. But it does not follow that the provision should be read as applying to answers of that variety. As the Full Court observed in Jagroop [[2015] AATA 751; (2015) 67 AAR 288], in many cases it would be impossible or impractical for an applicant to foresee evidence which might emerge in the course of cross-examination of the applicant or one of the applicant's witnesses, and so impossible or impractical for the applicant to give notice of it in advance. It is not to be inferred that the provision was intended to require something which may prove to be impossible or impracticable[61].
The conclusion that s 500(6H) does not apply to answers given in cross-examination of an applicant or of an applicant's witness is also supported by the context in which the provision appears. Read in context, the expression "information presented orally in support of the person's case" in s 500(6H) will be seen to be aimed at achieving the same result in relation to oral evidence as the expression "document submitted in support of the person's case" in s 500(6J) is designed to achieve in relation to written evidence. The natural and ordinary meaning of "document submitted in support of the person's case" in s 500(6J) is of documentary evidence tendered by an applicant. It would be a most unusual use of language for it to extend to a document which counsel for the Minister might tender in the course of cross-examination of an applicant or one of the applicant's witnesses. If that were so, it would entitle the Minister to rely on parts of the document favourable to the Minister's case while excluding any part of the document which supported the applicant's case.
Furthermore, because, as the Full Court observed in Jagroop …, proceedings before the AAT are to some extent as much inquisitorial as they are adversarial, the AAT is entitled … and, depending on the circumstances, may be bound to inform itself on any matter as it thinks appropriate, subject to the requirements of procedural fairness …. Hence, circumstances may not infrequently arise where it is necessary for an applicant to respond by way of oral submission to a matter raised by the AAT of its own motion. It should not be supposed that s 500(6H) was intended to prevent that occurring. Leastways, before a provision could be construed as having that effect, it would need to provide in very clear terms that the AAT may not have regard to any oral evidence or other material favourable to an applicant's case or which derogates from the Minister's case, regardless of whether it is adduced in chief or in cross-examination or in response to issues raised by the AAT, unless notice of that evidence or material has been given not less than two business days before the hearing ….”[64]
[63] [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 66 AAR 136; 151 ALD 107; French CJ, Kiefel, Bell, Keane and Nettle JJ
[64] [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 66 AAR 136; 151 ALD 107 at [99]-[102]; 232-233; 201‑202; 156-157; 127-128 (citations omitted) and see [44]; 217; 190; 145; 115 and following per French CJ, Kiefel, Bell and Keane JJ
I respectfully suggest that the reasons given in this passage of his Honour’s judgment should be kept in mind when considering the interpretation of s 500(6H) adopted by Senior Member Tavoularis in Re Suleman and Minister for Home Affairs[65] when he said:
“ The phrase ‘information presented orally’ should be viewed broadly; it is not limited to the oral evidence of witnesses. The Macquarie Dictionary defines ‘information’ as ‘knowledge communicated or received concerning some fact or circumstance’ and ‘knowledge on various subjects, however acquired’. It seems to me that this extends beyond the mere telling of facts in oral evidence. Rather, it should be construed as including submissions relating to how those facts apply to the law (and vice versa) in a given set of circumstances. I take the phrase ‘in support of the person’s case’ to thus refer not only to oral evidence in chief by an applicant or a witness called by an applicant, but also to written submissions or grounds of submission raised or made by an applicant orally at the hearing.”[66]
[65] [2018] AATA 2310
[66] [2018] AATA 2310 at [5]
For the reasons I have given in relation to the Applicant’s SFIC in this case, it may be that “information” can be gleaned from submissions given to the Minister within the time required by s 500(6H) but it may be that it cannot. Whether it can or not will be determined by reference to whether submissions contain “information”. I respectfully suggest that s 500(6H) does not limit an applicant to submissions given to the Minister at least two business days before the hearing. As the passage from Suleman recognises, submissions address the facts that the party contends the Tribunal should find on the evidentiary material it has been given. They address the law that applies and contend that, on the facts that the Tribunal should find, it should come to a particular decision. To adopt a view that an applicant is limited to making submissions about the evidentiary material known to him or her at least two business days before the hearing would mean that the applicant could not make submissions about the oral evidence given by the applicant or another witness in response to questions asked in cross-examination by the Minister’s representative or address documentary evidence led by the Minister.[67] In the absence of clear words extending s 500(6H) so that submissions made to the Tribunal in support of an applicant’s case may only address evidentiary material lodged on his or her behalf two business days before the hearing would be in breach of the Tribunal’s obligation under s 39(1) of the AAT Act to ensure, among other matters, that every party to a proceeding is given a reasonable opportunity to present his or her case.
[67] Section 500(6J) of the Migration Act mirrors s 500(6J) in so far as it relates to documents submitted in support of an applicant’s case.
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[68] Those directions must not be inconsistent with the Act or the Regulations made under it.[69] The person or body to whom the directions are given must comply with them.[70]
[68] Migration Act; s 499(1)
[69] Migration Act; s 499(2)
[70] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to a visa of the sort held by Mr Muyobe.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[71]
[71] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their context. The Principles set out in paragraph 6.3 are:
“(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 vulnerable members of the community such as minors, 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.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Muyobe’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[72] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[72] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[73] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[74]
[73] Direction No. 65 at [8(2)]
[74] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[75]
[75] Direction No. 65 at [13.1(1)]
This statement and the qualifications to it in the 1951 Convention now find statutory expression in ss 5H to 5M[105] and ss 36(1A) to (7) of the Migration Act. In particular, the word “refugee” is defined in s 5H which provides, in so far as it is relevant in this case:
“For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)…”[106]
[105] See also Migration Act; s 5(1) regarding definition of “refugee”.
[106] Migration Act; s 5H(1). Section 5H(2) qualifies that provision by providing that it does not apply if the Minister has serious reasons for considering that, in summary, the person has committed a crime against peace, a war crime or been guilty of acts contrary to the purposes and principles of the United Nations or, before entering Australia, a serious non-political crime.
I will also set out s 5J(1), which defines the meaning of “well-founded fear of persecution”:
“For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…”
The expression “membership of a particular social group” is expanded upon in ss 5K and 5L. Circumstances in which a person will not be regarded as having a well-founded fear of persecution are set out in s 5J(3).
On Mr Muyobe’s behalf, Mr Ewikowski submitted that he remained a refugee for the purposes of s 36(2)(a) of the Migration Act since he held a Class XB, Subclass 200 (Refugee) visa prior to its cancellation. It is correct to say, Mr Ewikowski submitted, that Mr Muyobe remains a refugee for he fulfils all of the criteria under the 1951 Convention. He contended that a finding to that effect would be consistent with the distribution of offshore visas granted in 2016-2017 to various groups including those from the DRC. Furthermore, persons from the DRC are consistently recognised as satisfying protection criteria for the purposes of migration to Australia.
Mr Cunynghame submitted that Mr Muyobe’s claims to be a refugee have not been considered. On its face, this submission seems a little difficult to accept given that he held a refugee visa before its cancellation. Protection visas[107] and refugee visas are, however, two different types of visa. As Mr Muyobe has not previously applied for a protection visa, he would not be excluded by s 48 of the Migration Act.[108]
[107] Protection visas include Protection visa (subclass 866), Temporary Protection visa (TPV) (subsclass 785) or Safe Haven Enterprise visa (SHEV) (subclass 790). Refugee visas include Refugee visa 200, Refugee visa 201, Refugee visa 203 and Refugee visa 204.
[108] Subject to one qualification set out in s 48B, the effect of s 48A of the Migration Act is that a person who is a non-citizen and who is in the migration zone may not make a further application for a protection visa if a previous application has been made and refused.
What is clear from this summary of the law is that the criteria that a person must satisfy before being accepted as a refugee are personal to that person. General circumstances applying in a country and the experiences of others provide context and even corroborative evidentiary material but it must be the person applying for recognition as a refugee who must fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The grounds on which a person is not regarded as having a well-founded fear are set out in ss 5J(2) and (3) and are also personal to the individual seeking refugee status. So, for example, a person is not regarded as having a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution other than a modification that would, among others, conflict with a characteristic that is fundamental to the person’s identity or conscience.[109]
[109] Migration Act; s 5J(3)(a)
In this case, Mr Muyobe completed a Personal Circumstances Form when he was given a notice advising that his refugee visa had been cancelled under s 501(3A). He ticked the box indicating that he had concerns or fears about what would happen to him on his return to his country of citizenship. He wrote:
“We ran away from war if i go back there i'll end up get killed because people ware after my family or force to join the Army.”[110]
[110] G documents; G8 at 73
In giving answering questions, whether in response to Mr Ewikowski, Mr Cunynghame or me, Mr Muyobe spoke of his concerns about being forced to be a soldier if he were to return to the DRC, He had heard about children being forced to be soldiers and had seen child soldiers on the television. Apart from that, Mr Muyobe told me, he would be taken away from everyone and he would not know how to start a life there. When I asked him if he was scared of anything if he were to return to the DRC, he told me that he was. He was scared of being away from his family. It is just another life that he does not know, he said.
I understand that a consideration of Australia’s non-refoulement obligations in the context of reviewing a decision under s 501CA(4) does not require the same level of analysis as I would engage in if I were reviewing a decision refusing his application for a protection visa on the basis that he does not meet the criteria in s 36.[111] Even so, I do not consider that the concerns that Mr Muyobe spoke about would raise Australia’s non-refoulement obligations. That does not mean that Australia might not be found to have those obligations. I am aware that Mr Muyobe had, with his agreement, been referred to a culturally appropriate service to engage in intervention to address his mental health on his being released on parole 22 June 2017. Although he was detained and not able to take advantage of it, I note that the Queensland Corrective Service’s Probation and Parole section did not make a referral on 11 August 2017. The reason for the referral was described as his:
“… wanting to engage in counselling with a culturally appropriate service to address his Post Traumatic Stress Disorder from living in camps in the Congo.”[112]
I do not have any medical evidence regarding Mr Muyobe’s mental health but, accepting for the moment that he does suffer from Post Traumatic Stress Disorder (PTSD), he may not have been able to express his concerns regarding non-refoulement in the environment of the hearing. I do not have any medical evidence regarding that either but I would not want to think that his answers in this matter are taken as unimpeachable.
[111] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 at [28]; 521; Flick, Griffiths and Perry JJ
[112] Exhibit 2 at 472
The other matter on which I do not have any evidence is whether the DRC will accept Mr Muyobe if Australia were to attempt to return him to that country. If the DRC were not to accept him, it is unlikely that the Minister would exercise his power under s 195A of the Migration Act to grant him a visa on the basis that it were in the public interest to do so. That could leave him in indefinite detention. Again, I do not have medical evidence but I think that it is generally accepted that indefinite detention is not conducive to good mental health.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… 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 has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
B.1 Consideration
On the basis of the written letters from his siblings and his mother and his evidence and that of his mother at the hearing, I find that Mr Muyobe clearly has strong ties with his family, each of whom is either a permanent residents or an Australian citizen. He also has friends and, in particular, close ties to a retired Presbyterian Minister, Mr Rex Finedor, whom he regarded as if he were his grandfather.[113] Mr Finedor wrote on 15 March 2018 that he had taught Mr Muyobe to drive and had taken him to the doctor when he had health problems.[114]
[113] Statement of Mr Muyobe dated 15 March 2018: G documents; G22 at 112
[114] G documents; G23 at 115
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“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.”
C.1 Consideration
The cancellation of Mr Muyobe’s visa and the non-revocation of that cancellation would not have any effect on Australian business interests. He has had training in the security industry but has never obtained employment in that field. He has also held a traineeship in the construction industry and undertaken some work in that field as well as a few months undertaking landscaping work. I am not satisfied that the continuing cancellation of Mr Muyobe’s refugee visa would significantly compromise the delivery of a major project or an important service in Australia. It would not have any impact on Australian business interests.
D. Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“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.”
D.1 Consideration
I do not have any evidence regarding the effect of a decision not to revoke the cancellation of Mr Muyobe’s visa on the victims of his crime and the family members of those victims. The sentencing remarks by Judge Read and Judge Rendlit did not refer to the impact on the young girl. She had submitted a Victim Impact Statement to the Director of Public Prosecutions in Queensland addressing the effect of Mr Muyobe’s offence on her but Mr Cunynghame, quite properly in my view, did not rely on it. Understandably because it was directed to that issue, it did not address the issue I must consider. Apart from the impact on members of the Australian community generally, the issue I must consider is focused on the impact of a decision not to revoke the cancellation of Mr Muyobe’s cancellation visa on the victim of his offence.
A decision not to revoke the cancellation of his refugee visa would ultimately leave Mr Muyobe in detention. I do not have any evidence of the impact that would have on members of the Australian community. Equally, I do not have any evidence of the impact if the cancellation decision were revoked. Apart from any views that might be expressed, and I think that they are better addressed in the context of the expectations of the Australian community, any impact would come about from the likelihood of Mr Muyobe’s re-offending. The impact of any re-offending is better considered in the context of the protection of the Australian community.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“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.”
E.1 Consideration
On the evidence that I have, I find that Mr Muyobe does not have any family support in the DRC. His paternal grandfather died and his paternal grandmother and aunts were killed in that country. He left it when he was approximately four years of age and I accept his evidence that he does not know anything about it. I also accept that he would not know how to live there. He does speak the Swahili language, which is an official language of the DRC, and he would not face any substantial language barrier on that basis. It might be thought that Mr Muyobe would not face any substantial cultural barrier given that he was born in the DRC and that he has lived all of his life with his parents who might be thought to have imparted the culture to him. That does not necessarily follow though for he left the DRC as a four year old. He then spent eight or nine years in refugee camps in Tanzania and came to Australia as a 16 year old. To what extent his parents maintained their cultural heritage in those refugee camps or whether it was feasible to do so, I do not know. I do accept Mr Muyobe’s statement that he knows nothing about the DRC.
Mr Muyobe has undertaken some work in Australia in the construction industry but does not have an established work history. He completed Year 11 in Australia and has not obtained any trade or other qualifications. Apart from his labour, it is difficult to see what skills he would take with him to the DRC that he could put to good use. I have no evidence regarding any form of income maintenance scheme that may exist in the DRC or regarding the nature and quality of health care and counselling services available to Mr Muyobe. That is a matter of some relevance given the Queensland Correction Service’s identification of his mental health issues. The availability to him of medical and mental health as well as counselling services is one thing. How he would pay for them is another.
Decision
Mr Muyobe has committed a serious offence and has served terms of imprisonment for that offence and for offences that are mostly related to his failing to follow or comply with lawful directions. Alcohol has been an issue for him and played a large part in his serious offence of Unlawful Carnal Knowledge. He has shown an awareness that alcohol is an issue and has taken steps to address it. His awareness and his remorse indicate that his risk of committing a crime of Unlawful Carnal Knowledge or similar serious offence is very low. His awareness also reduces the risk of his reoffending generally.
On the basis of the evidence of his siblings and his mother, I find that Mr Muyobe is a very caring person to the younger members of his family. He spends time with them and gives them his attention and support. There is no reason to think that he will not do the same for his children if he is permitted to remain in Australia. If he is not able to be a father to the children, I find on the evidence that they will not have the continuing presence of either of their biological parents. Their mother visits only intermittently and their grandmother suffers from high blood pressure and needs her son’s help in caring for them.[115] I have already found that it is in the best interests of his children and of his siblings who are aged under 18 years that he remain in Australia. I also find that it is in the best interests of his other siblings if he remains. His sister, Tumaini Muyobi, speaks of her depression and inability to concentrate on studies because of his absence from the family. Tausi Muyobi has also been unable to continue her university studies because of Mr Muyobe’s situation. It was apparent from the hearing that Mr Muyobe’s mother is also grief stricken by her son’s situation and the potential return of her son to the DRC.
[115] See, for example, G documents; G16 at 103 and G29 at 132
The letters written by Mr Muyobe’s siblings reveal a closely knit family unit that has had to leave its own country to seek shelter and protection in Tanzania. The family spent 12 years in Tanzania living in at least two refugee camps. They have suffered the traumas and travails together and are clearly wanting to support their brother and son in the future. The family will not be able to do that if he is required to return to the DRC which is a country he left at the age of four years. It is a country with which he has no connection regardless of whether or not he has been imbued with its culture through his family. I have not considered the particular risks that might face him for they would be considered were he to make an application for a protection visa. He cannot, however, escape his ethnicity and that would be a factor in considering those risks.
This is a case in which I consider Mr Muyobe should be given a second chance even though he has been in Australia for only some eight years. The risk that he will reoffend is low and the risk that he will cause further harm to members of the Australian community is correspondingly low. It is in the best interests of his children and his younger siblings that he stay and that he be part of the family providing their base from which they continue their studies and move into the world. Mr Muyobe is well aware that he must continue his efforts to stay away from alcohol and to make his life through work and caring for his family. I accept that his efforts and stated intentions are genuine. The alternative is to return to the DRC and it was clear at the hearing that he would be completely at a loss in knowing how to live and survive in that country.
For these reasons, I find that there is a reason, other than that Mr Muyobe passes the character test (which he does not), why the original decision should be revoked under s 501CA(4)(b)(ii). Therefore, I set aside the decision of a delegate of the Minister dated 31 October 2018 under s 501CA(4) of the Migration Act to refuse to revoke the cancellation of the applicant’s refugee visa under s 501(3A). I substitute a decision that the cancellation decision be revoked. The effect of my decision is that Mr Muyobe continues to be the holder of a Class XB, Subclass 200 (Refugee) visa.
| I certify that the preceding one hundred and twenty eight (128) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
....[sgd]..............................................................
Associate
Dated: 25 January 2019
Dates of hearing: | 17 and 18 January 2019 |
| Advocate for the Applicant: Solicitor for the Applicant: Solicitor for the Respondent: | Mr Manfred Ewikowski Mr Nathan Willis Mr Adam Cunynghame |
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