MWNX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1450
•1 June 2022
MWNX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1450 (1 June 2022)
Division:GENERAL DIVISION
File Number: 2022/0797
Re:MWNX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:1 June 2022
Date of written reasons: 21 April 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 31 January 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa is revoked.
....................................[sgd]....................................
Senior Member Dr Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class XE Subclass 790 Safe Haven Enterprise visa – where visa was cancelled under s 501(CA) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – other considerations – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 48A, 48B, 197C, 198, 499, 500, 501, 501E, 501CA
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
CASES
Ali v Minister for Home Affairs (2020) 380 ALR 393; [2020] FCAFC 109
BAL19 v Minister for Home Affairs [2019] FCA 2189
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
DQM18 v Minister for Home Affairs [2020] FCAFC 110
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 294
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hernandez v Minister for Home Affairs [2020] FCA 415
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Explanatory Memorandum for the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth)
PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence detention intervention power
PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power
REASONS FOR DECISION
Senior Member Dr Linda Kirk
1 June 2022
MWNX (‘the Applicant’) is a 40 year-old citizen of Iran,[1] who first arrived in Australia as an unauthorised maritime arrival on 19 November 2012.[2] On 14 August 2019 the Applicant was granted a Class XE Subclass 790 Safe Haven Enterprise visa (‘the visa’).[3]
[1] Exhibit R2, G2, 8, G5, 38.
[2] Exhibit R2, G30, 180.
[3] Exhibit R2, G20, 125.
On 10 December 2019, the Applicant was convicted in the Local Court of New South Wales of Possess Schedule 9 substance (four counts), Fail to appear in accordance with bail acknowledgment (two counts), Destroy or damage property (DV) and Possess prohibited drug (two counts) and was sentenced to an aggregate term of 12 months imprisonment.
The Applicant appealed against the severity of the sentence, and subsequently withdrew the appeal. The convictions, orders and sentence of the Local Court were confirmed by the Parramatta District Court on 19 February 2020.[4]
[4] Exhibit R2, G5, 38.
On 10 March 2020 the Applicant’s visa was cancelled under sub-s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied the Applicant did not pass the character test in sub-s 501(6) of the Act as he was considered to have, pursuant to sub-s 501(7)(c), a ‘substantial criminal record’.[5] The letter invited the Applicant to make representations to the Minister about revoking the decision to cancel the visa within 28 days of receipt of the letter.[6] At the time the Applicant was serving a sentence of full-time imprisonment at the Dawn de Loas Correctional Centre in New South Wales for an offence against a law in Australia.
[5] Exhibit R2, G32, 222.
[6] Ibid 224.
On 31 March 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[7] On 6 April 2020, the Applicant emailed his reasons for requesting revocation to the Respondent’s Department. Further evidence and submissions were provided by the Applicant in support of the revocation request throughout 2020 and 2021.[8]
[7] Ibid G14, 74-75.
[8] Ibid G14-G29.
On 25 January 2022, a delegate of the Respondent decided, under sub-s 501CA(4), not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[9] The Applicant was notified of the decision on 31 January 2022.[10]
[9] Ibid G3-G4.
[10] Ibid G2, 8.
On 3 February 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision under sub-s 500(1)(ba) of the Act.[11]
[11] Ibid G1, 1.
The matter was heard by the Tribunal on 6 and 7 April 2022. The Applicant did not attend the hearing but was represented by his solicitor. The following persons gave oral evidence and were cross-examined at the hearing:
- Dr Antonio Simonelli – Psychiatrist
- Ms Karen Joyce - Public Guardian
The material before the Tribunal consists of:
- Applicant’s Evidence Bundle filed 16 March 2022 – Exhibit A1
- Report of Dr Antonio Simonelli dated 31 March 2022 – Exhibit A2
- Email correspondence from Applicant’s guardian dated 1 April 2022 – Exhibit A3
- Emails received by Respondent’s instructing solicitor on 5 April 2022 – Exhibit R1
- Section 501G-Documents (G1-33, pages 1-252) filed 17 March 2022 – Exhibit R2
- Respondent’s Tender Bundle (TB1-TB12, pages 1-580) filed 28 March 2022 – Exhibit R3
- Article: Community Treatment Orders: the evidence and the ethical implications filed 4 April 2022 – Exhibit R4
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Sub-s 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Minister makes a decision under sub-s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[12]
[12] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[13]
[13] Direction [2-3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give a ‘other’ consideration the equivalent of or greater weight than a primary consideration.[14] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as [which judge] stated in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[15]
[14] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[15] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
Before the power in sub-s 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-s 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[16] the Full Court of the Federal Court of Australia made the following observations in relation to sub-s 501CA(4):
there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view ...[17]
[16] [2018] FCAFC 151.
[17] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and employment
The Applicant was born in Iran in 1981.[18] He is an Ahwazi Arab and formerly identified as a Shia Muslim but followed Christianity for a time before deciding to identify as an atheist.[19]
[18] Exhibit R2, G24, 152.
[19] Ibid 32 and 154-155.
While in Iran, the Applicant worked as a taxi driver. He commenced smoking illicit substances at the age of 23 years, while still living in Iran.[20] He was charged and detained for the possession of hashish in Iran about two years before coming to Australia. He was imprisoned for a short time and punished by lashings and other forms of physical assault.[21]
[20] Ibid 154.
[21] Ibid 156.
Arrival in Australia and protection claims
The Applicant fled Iran in 2012 due to the risk to his safety. He arrived in Australia by boat in November 2012 without a valid visa. He was granted a Subclass 050 Bridging Visa E while awaiting an invitation to apply for a protection visa. After having his protection claims assessed, the Applicant was granted the visa.[22]
[22] Ibid G20, 125.
In his application for protection, the Applicant claimed that he suffered political discrimination in Iran as an Ahwazi Arab and feared harm from the authorities who were looking for him due to his involvement in a rally before he left Iran, and due to his conversion to Christianity. He also feared harm returning to Iran as a drug user where drug crimes including possession are punishable by death penalty.[23]
[23] Ibid G24, 155, 158.
Criminal history in Australia
The Applicant’s National Police Check dated 25 February 2020 records the Applicant’s convictions in Australia.[24] The Applicant’s offending history, which began in 2014, includes primarily drug related offences, offences of behaving in an offensive manner in/near public place/school, wilful and obscene exposure in/near public place/school, a trespassing offence, and judicial breaches, which resulted in fines, bonds, community correction orders and an intensive correction order.
[24] Ibid G5, 38.
Date
Offence
Outcome
17 December 2014
Possess prohibited drug
Fine $400
22 June 2015
Possess prohibited drug
Bond S9, 15 months
22 June 2015
Resist officer in execution of duty-T2
Bond S9, 15 months;
22 June 2015
Stalk/intimidate intend fear physical etc harm (personal) – T2
Bond S9, 15 months;
16 January 2017
Possess prohibited drug
Fine $300
26 April 2017
Possess Schedule 9 Substance
Fine $250 x 2
2 May 2017
Possess prohibited drug
Fine $750
27 July 2017
Common assault-T2
Fine $600
23 August 2017
Possess prohibited drug
Fine $800
13 September 2017
Possess Schedule 9 substance
Fine $1,000
4 April 2018
Possess Schedule 9 substance
Bond S9: 9 months to attend for counselling, educational development, drug or alcohol rehab. Supv NSW Prob Service
Fine $1,000
27 June 2018
Possess prohibited drug
S9: 12 months Supv NSW Prob Service
Fine $500
10 October 2018
Wilful and obscene exposure in/near public place/school
Fine $400
10 October 2018
Behave in offensive manner in/near public place/school
Fine $400
8 May 2019
Possess prohibited drug
Fine $500
6 August 2019
Possess Schedule 9 substance
Community Corrections Order (CCO) – 8 months
19 Feb 2020
Possess schedule 9 substance
Imprisonment 12 months
19 Feb 2020
Enter inclosed land not presc. premises w/o lawful excuse
S10A Conviction
19 Feb 2020
Fail to appear in accordance with bail acknowledgment
Imprisonment 12 month
Drug offences
Between late 2014 and mid-2019, the Applicant was convicted of 14 separate offences involving the possession of prohibited or Schedule 9 substances.[25]
[25] Ibid.
On 21 March 2017 Police were patrolling an area they identified as a hot spot for illegal drugs and were told that a person was smoking cannabis across the street.[26] Police reported an odour of cannabis from the Applicant, at which point he lifted his foot to show the police officer a small plastic bag containing vegetable matter saying ‘sorry sir I have this’.[27] The Applicant was charged with the offence Possess prohibited drug.
[26] Ibid G10, 62.
[27] Ibid.
NSW Police Facts dated 3 March 2017 recorded for the offence of Possess Schedule 9 Substance describe the Applicant coming to the attention of Police by sitting in the middle of a park bench, in an area deemed by Police to be a hotspot for the ingestion of drugs. The Applicant was described as being in ‘a stupor’ and was subjected to a search by Police and found to be in possession of 1.5 grams of cannabis. The Police determined that the Applicant was not fit to be interviewed at the time.[28]
[28] Ibid G9, 59.
In his sentencing remarks dated 10 December 2019 in relation to the Applicant’s most recent convictions, Magistrate Feather noted that the Applicant’s criminal offending related to possession of prohibited drugs, mainly synthetic cannabis. His Honour stated that ‘each of those offences sits at the lowest end of the range of seriousness for offences of that nature’ as the amounts were ‘modest’, ranging from 0.5 grams to 2.5 grams.[29] His Honour found that an aggravating feature of the Applicant’s offending was his ‘very poor history for that type of offending, that is, possess prohibited drugs’ and this offending demonstrated ‘an ongoing pattern of disobedience to the law’.[30] His Honour stated that, in sentencing the Applicant for his drug possession offending, he was required to consider both personal and general deterrence:
I need to try to deter you from committing … these types of offences … I need to ensure you are adequately punished for each of these offences. I need to recognise the harm done to the community as a result of this type of offending, and it is a community type offence. Unfortunately drugs are awash in our community, and the reason that people supply drugs is because people are willing to buy them. So you are part of that process of drugs entering into our community.[31]
[29] Ibid G7, 51.
[30] Ibid.
[31] Ibid, 52.
His Honour noted the Applicant’s judicial breaches and stated that, as he was currently in custody for an Intensive Correction Order (ICO) breach, the imposition of an ICO was not an appropriate sentence for these offences. Magistrate Feather considered that there were special circumstances to vary the normal ratio of parole versus non-parole periods, to reduce the number of months served in custody to six months, because it was the Applicant’s first time in custody and because there was an ‘acute need for rehabilitation’.[32]
[32] Ibid, 53.
Destroy or damage property (DV)
On 10 December 2019, the Applicant was convicted of Destroy or damage property (DV) belonging to the residents of the share house where he was living.[33] On the same date, the Magistrate issued a Final Apprehended Domestic Violence Order for the protection of the three persons with whom the Applicant was living.[34]
[33] Ibid, 51.
[34] Ibid, 54.
The circumstances of the offending are outlined in the sentencing remarks of Magistrate Feather dated 10 December 2019. The Applicant damaged property in his shared housing accommodation including a wooden chair, a Wi-Fi router, and a vase. The NSW Police Facts Sheet described the incident as volatile in nature and record that the Police held serious fears for the safety of all parties if they continued to reside at the same address.[35] Magistrate Feather stated that, whilst he accepted that the Applicant was having difficulties with his co-tenants, his actions of damaging property in the house were not justified. His Honour deemed the offence to be on the lower end of the range of seriousness for offending of that nature, noting however that it was ‘made worse’ by the fact that at the time of the offence, the Applicant was serving an ICO for his offence of Possess schedule 9 substance.[36] Magistrate Feather acknowledged that whilst this offence formed part of the aggregate sentence for the offending, the damage to the property was minimal and its value was approximately $200. The ICO was revoked, and the Applicant was directed to serve eight months imprisonment.
[35] Exhibit R3, RTB, 393-395.
[36] Exhibit R2, G7, 51.
Resist officer in execution of duty
On 22 June 2015, the Applicant was convicted of Resist officer in execution of duty, for which he was placed on a section 9 bond for 15 months. The charge arose on 18 June 2015 when Police received a report that the Applicant was asleep in the gutter. Paramedics arrived before the Police, and when they woke him, he fled. Police located the Applicant shortly after and found him sleeping on a bench and obviously drug-affected. It took multiple attempts by Police to communicate with the Applicant before he woke up and responded. When questioned, the Applicant confirmed that he did have drugs in his possession. After repeating ‘I refugee, I go now’ several times to the Police when asked to empty his pockets, the Applicant attempted to leave but was unsteady on his feet and struggling to stay awake, requiring police help as he started to fall over. The Applicant then stood up and tried to run away.[37] He resisted arrest by wrestling with the Police to avoid being handcuffed. A subsequent body search of the Applicant located two plastic bags in his pockets, each containing two grams of cannabis.
[37] Exhibit R2, G11, 66.
Stalk/intimidate intend fear physical etc harm
On 12 May 2015, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (person)-T2 and received a section 9 bond for a duration of 15 months in the Parramatta Local Court.[38] The NSW Police Facts Sheet states that the Applicant was in attendance at the offices of Settlement Services International when the Applicant abused the team leader and threatened him stating ‘I’ll come back tomorrow and kill you’ and ‘I will find you and kill you’.[39]
[38] Exhibit R3, RTB, 567; Exhibit R2, G5, 48.
[39] Ibid 567-569.
Common assault
On 23 January 2017, the Applicant was charged with Common assault-T2. The NSW Police Facts Sheet records that the Applicant entered Westpoint Blacktown and placed various items in his backpack.[40] When approached by staff members, the Applicant dropped his backpack and exited the store. The security guard collected the items and located the Applicant’s ID in the bag. The security guard approached the Applicant in the car park of the facility and asked him why he stole the items. The Applicant then punched the guard in the chest causing ‘instant pain’. The Applicant was convicted of the offence in the Blacktown Local Court on 27 July 2017 and was fined $600.[41]
[40] Ibid 348-350.
[41] Exhibit R2, G5, 48.
Wilful and obscene exposure in public place
On 14 September 2018, the Applicant was charged with Wilful and obscene exposure in/near public place/school and Behave in offensive manner in/near public place/school. The NSW Police Facts Sheet states that the Applicant entered a Centrelink office and refused to leave after slamming a self-service phone.[42] The Applicant began swearing at the Team Leader and spat saliva three times onto the floor of the Centrelink office and a further five times directed at the Service Centre Manager. The Applicant then stated he needed to go to the toilet and removed his penis from his pants, exposing himself to those in the Centrelink office. The Applicant’s penis was exposed for 15-20 minutes whilst approximately 80 members of the public, including Centrelink staff were present, with some ‘visibly upset by the incident’. The Applicant was fined $400 in the Liverpool Local Court.[43]
[42] Exhibit R3, RTB, 338-340.
[43] Exhibit R2, G5, 48.
Assaults in prison and immigration detention
NSW Department of Corrective Services Case Note Reports record that the Applicant made a report that he was the victim of sexual assault in 2013 by another man, and that the assault was filmed.[44]
[44] Respondent’s Tender Bundle (TB) p. 259
Numerous records in the Applicant’s IHMS file indicate that the Applicant has been the victim of assault in immigration detention on a number of occasions.[45]
[45] Exhibit A1, 77, 79, 80, 81, 83, 87, 88, 89, 102, 121, 122, 123, 131, 134, 135, 137, 140, 143, 144, 187.
Behaviour in immigration detention
On 10 September 2020, the Applicant was seen loitering a fence line and refusing to comply when instructed to return to his compound.[46] When officers attempted to escort him, he ‘became abusive and rained insults on Serco Staff’.[47]
[46] Exhibit R3, RTB 408-410.
[47] Exhibit R2, G31, 188.
On 16 September 2020, the Applicant was transferred by ambulance to Bankstown Hospital. When the Applicant was being offloaded, he became aggressive towards staff.[48] Whilst in the Hospital, the Applicant became non-compliant with treatment and attempted to punch and kick hospital staff.[49]
[48] Exhibit R3, RTB 413.
[49] Ibid 416.
On 14 October 2020, the Applicant requested to see medical staff. He was not willing to wait, and began shouting and swearing.[50] On 15 October 2020, the Applicant woke up and became abusive and aggressive towards officers.[51]
[50] Ibid 418.
[51] Ibid 418.
On 30 October 2020, it was reported that contraband items were removed from the room that the Applicant shared with another detainee. The contraband included a homemade syringe, 13 diabetic needle heads, a small metal object and a lighter. Both the Applicant and other individual declined ownership.[52]
[52] Ibid 422.
Mental health condition and drug abuse
The Applicant has been consuming illicit substances since the age of 23 years. In sentencing the Applicant on 10 December 2019, His Honour accepted that the Applicant uses illicit drugs to help him cope with the psychological effects of his experiences in Iran:
I accept that you have a very difficult time in your country of birth before you came to Australia and you are probably dealing with the consequences of that now, but you cannot deal with the consequences psychologically by taking illegal drugs, and that is what you have been doing. … There is research to suggest that if you use synthetic cannabis on a long-term basis in not insignificant quantities there is a consequence, and the consequence is people develop psychosis, and that is the diagnosis that you have had in the past, drug induced psychosis. So that is the sort of future you have if you continue to abuse that type of substance, that is, synthetic cannabis.[53]
[53] Exhibit R2, G7, 50-51.
International Health and Medical Services (IHMS) clinical records indicate that the Applicant has had admissions to hospital dating back to 2014. They also record that the Applicant has been sporadically non-compliant with his medication since arriving in immigration detention, and that he has a chronic, recurrent psychotic disorder.[54] These records also indicate that the Applicant responded positively to a course of Olanzapine, and after ceasing this medication his mental health significantly declined.
[54] Exhibit R3, RTB, 528.
Corrective Services NSW GEO Psychology Service Progress Notes record that while he was in custody, the Applicant agreed to engage in exercises focused on skill building.[55] Other psychology reports record that the Applicant was ‘cooperative and interacted very well’ reporting better sleep and appetite, and as acknowledging that his drug abuse needs to be managed properly, stating ‘I need to stop it fully. I don’t want to come back here in jail’.[56] The notes record the psychologist used CBT techniques with the Applicant in one session to help him understand his issues Appointment of Public Guardian
[55] Ibid 107.
[56] Ibid 92.
The NSW Public Guardian was appointed as the Applicant’s legal guardian on 19 May 2017,[57] on the basis that he has ‘a mental illness and a history of polysubstance abuse which have affected his capacity to manage his affairs independently.’[58]
[57] Exhibit R2, G21, 130.
[58] Ibid.
In a letter dated 11 December 2020, Ms Karen Joyce, Principal Guardian for the NSW Public Guardian, explained that the Applicant
has had regular contact with mental health services since arriving in Australia, including several admissions to mental health facilities. He has also notably struggled with ongoing addiction issues. These issues have profoundly impacted on [MWNX] and have brought him into contact with the criminal justice system.[59]
[59] Ibid.
Ms Joyce confirmed that the NSW Civil and Administrative Tribunal (Guardianship Division) assessed the Applicant as suffering from a disability ‘consisting of a long-standing history of drug-induced psychosis with mania and psychotic features, including delusions and hallucinations’.[60]
[60] Ibid.
In a letter dated 15 March 2022 to the Applicant’s solicitor, Ms Joyce detailed the difficulties the Applicant has encountered as a consequence of his mental health condition and the effects of trauma experienced by him in Iran:
It is recognised that the daily struggles with mental health, addiction, finding suitable housing and being unable to find work (on top of the trauma experienced by [MWNX] in Iran and subsequently during his journey to Australia and in detention here) have all contributed to the deterioration in his mental health and the exacerbation of his addiction issues. [MWNX’s] health and social history highlight his extreme vulnerability and extenuating factors that have contributed to his past offending behaviour. [61]
[61] Ibid.
In her letter, Ms Joyce wrote that the Public Guardian had been advised by the Applicant’s treating doctor at Villawood Immigration Detention Centre, Dr David Lienert, that the Applicant had been able to access illicit substances in detention and that these had negatively impacted on his mental health.[62]
[62] Ibid.
In November 2021 the Public Guardian referred the Applicant to the Mental Health – Community Living Supports for Refugees (MH-CLSR) program run by STARTTS.[63] However, owing to the Applicant’s current mental health issues, he had been unable to engage with this program.[64]
[63] Ibid G29, 179.
[64] Ibid G27, 176.
On December 2021 Ms Joyce wrote to Dr Lienert and informed him that she had spoken to the Applicant who told her that ‘treatment cannot help him.’[65] In February 2022 Ms Joyce wrote to Dr Lienert stating that she was concerned because the Applicant was refusing to meet with his legal representatives, and she sought his assessment for the Applicant being an involuntary patient.
[65] Exhibit A1, ATB, 30.
In her oral evidence at the hearing, Ms Joyce told the Tribunal that she has 14 years’ experience working as a public guardian.[66] She has worked with many clients with mental health conditions, including clients who are on CTOs, and many clients who have had contact with the criminal justice system.[67]
[66] Transcript of Proceedings (6 April 2022) 91.
[67] Ibid.
In her letter dated 15 March 2022, Ms Joyce wrote that she considers that with appropriate supports and programs and the ongoing advocacy of the Public Guardian the Applicant has a good prospect of being socially habilitated.[68]
[68] Exhibit R2, G21, 131.
Ms Joyce reiterated this opinion during her oral evidence at the hearing:
So, from seeing other people in similar situations and knowing that you can link people in where there are good resources. Then, yes, people have good opportunities to become a positive person in society. And [the Applicant has] kind of given me those indications … with the conversations I’ve had with him, he’s not one of my challenging clients in that way. I’ve got other clients who are less social, shall we say. You know, extensive challenging behaviours, you know, aggression. I haven’t seen that from him. So, yes, I would hope that with those supports he could become a success …
Psychiatric assessments
Dr David Lienert
Dr Lienert commenced treating the Applicant when he entered Villawood Immigration Detention Centre (VIDC) in June 2020. His notes record a diagnosis of schizophrenia made at Cumberland Hospital.[69]
[69] Exhibit A1, ATB, 131.
The Applicant was scheduled by a GP at VIDC to Bankstown Lidcombe Hospital in September 2020. He was released due to there being no acute risks.[70] Dr Lienert notes record the incongruity of the Applicant seeming psychotic at VIDC. Dr Lienert scheduled the Applicant to Bankstown Lidcombe Hospital again in October 2020 due to his psychotic state and his non-compliance with medication. The Applicant’s discharge from hospital recorded ‘drug induced psychosis’.[71] Following this admission, Dr Lienert took the Applicant off the medication he had been prescribed.[72]
[70] Exhibit R3, RTB, 527; G, 90.
[71] Exhibit R2, G166; Exhibit A1, ATB 102.
[72] Exhibit R2, G168, Exhibit A1, ATB, 95.
In February 2021, Dr Lienert reported that the Applicant’s condition was improving, and he did not want to continue with his medication. On 8 April 2021, Dr Lienert recorded the following in relation to the Applicant:
Presents with psychotic symptoms which were not apparent at my last review in February. Historically has a history of psychotic disorder but some diagnostic uncertainty with description of both schizophrenia and drug induced psychosis. Current symptoms are atypical particularly in the longitudinal course. He denies recent use of drugs.[73]
[73] Exhibit A1, ATB, 66.
On 23 December 2021, Dr Lienert reported the Public Guardian’s concerns about the Applicant’s mental state and him refusing appointments and medication. He noted that the Applicant was not suitable for involuntary admission to hospital.[74]
[74] Ibid ATB, 29.
On 3 March 2022 Dr Lienert reported that he would contact CHMT to initiate an application for a Compulsory Treatment Order (CTO) because the Applicant had ceased contact with his guardian and legal representative.[75]
[75] Ibid ATB, 18.
Dr Antonio Simonelli
Dr Antonio Simonelli, Consultant Psychiatrist, prepared a written report in relation to the Applicant dated 31 March 2022 and gave oral evidence at the hearing. The Applicant declined to participate in an audio-visual link assessment, and Dr Simonelli’s report was therefore written following a review of relevant documentation.[76]
[76] Exhibit A2, 6.
Dr Simonelli made a provisional diagnosis of schizophrenia based on the Applicant’s experience of hallucinations for a significant amount of time and in the absence of substance abuse.[77] In his opinion, the Applicant falls into a category of patients known as ‘Dual Diagnosis’. This ‘is where there is co-existing mental illness and substance abuse’ and ‘[t]his aspect adds a level of complexity and resistance in achieving recovery.’[78]He recommended a range of treatment strategies including pharmacological treatment, psychosocial interventions and non-drug treatments, cognitive behavioural treatment, and motivational interviewing.[79]
[77] Ibid.
[78] Ibid.
[79] Ibid 7.
In his oral evidence at the hearing, Dr Simonelli explained that schizophrenia has a very low recovery rate and only around 30 percent of patients will make a full recovery. From his knowledge of the Applicant, it appeared to him that he had not ever fully engaged in or received treatment.[80]
[80] Transcript of Proceedings (6 April 2022) 54.
During cross-examination, Dr Simonelli explained that schizophrenia ‘is a serious mental illness which causes significant brain damage and other functional impairments in a person's life.’[81] In addition to hearing voices and hallucinations, ‘there are other aspects to the condition such as cognitive impairment or … brain damage.’[82] Antipsychotic medication goes some way to slowing this down or inhibiting or preventing it from happening or occurring to its fullest extent.[83] Dr Simonelli agreed that there are other illnesses that can cause a person to hear voices or auditory hallucinations including being in a drug-induced state, in delirium, in severe depression, and PTSD.[84] He also agreed that the experience by an individual of trauma can lead to substance abuse.[85]
[81] Transcript of Proceedings (6 April 2022) 58.
[82] Ibid.
[83] Ibid.
[84] Transcript of Proceedings (6 April 2022) 59, 62.
[85] Transcript of Proceedings (6 April 2022) 67.
In his report, Dr Simonelli wrote that in his view, the Applicant has a range of risk factors which place him ‘in the risk of poor outcome category’.[86] Of these, the over-arching risk factor for a poor outcome is the Applicant’s detention. He explained thatdetention:
is a recognized significant risk factor for the development of mental illness and/or the worsening of the presence of mental illness. There is consistent evidence that immigration detention had adverse effects on mental health. There is substantial and consistent research evidence that detainees with pre-existing vulnerabilities, e.g. mental health issues or survivors of torture and other forms of cruel or inhuman treatment, including sexual violence and gender-based violence, are at particular risk of harm as a result of their detention.[87]
[86] Exhibit A2, 9.
[87] Ibid.
In his oral evidence, Dr Simonelli stated that ‘psychiatric rehabilitation is essentially the exact opposite of what detention is.’[88] He told the Tribunal that even if appropriate mental health services are available in detention, he does not think they would be as effectively delivered within the detention environment.[89]Dr Simonelli further explained the treatment required for individuals with mental illness:
Treatment of mental illness requires a holistic approach and continuity of care; it is not just the treatment of an episode of mental ill health but an ongoing therapeutic input focusing on both recovery and relapse prevention. Treatment offered within such a setting may be able to reduce symptoms and reduce risk to some extent but cannot offer the long-term holistic model of care which will promote full recovery. Furthermore, detention itself is likely to trigger memories of previous traumatic experiences and may also increase distress through the threat of impending removal or deportation. Success of treatment is dependent on the development of therapeutic relationships, providing a multi-disciplinary and multi-agency intervention, and using a biopsychosocial model of therapeutic intervention.[90]
[88] Transcript of Proceedings (6 April 2022) 55.
[89] Transcript of Proceedings (6 April 2022) 68.
[90] Transcript of Proceedings (6 April 2022) 62.
In his report, Dr Simonelli outlined his views about the referral of the Applicant for a CTO as part of a ‘bio-psycho-social approach’ to his treatment:
I support the referral for a Community Treatment Order (CTO) for [MWNX] if he were to return to the community. A CTO will compel both [MWNX] and his treatment providers to engage in treatment. The CTO should be part of a greater treatment strategy that utilizes the Bio-psycho-social approach as outlined in Question 2 “Available Treatment Options”. In brief, he will be under the care of the local Community Mental Health Team who provide mental health care for his local government area. He will have an appointed psychiatrist and case manager. He ought to have regular reviews with his psychiatrist and the case manager ought to remain in regular contact with [MWNX] to track his progress. From this starting point, he ought to be linked in with psychological and other rehabilitative services or programs.[91]
[91] Exhibit A2, 10.
During cross-examination, Dr Simonelli was asked his opinion of the findings of an academic article titled ‘Community Treatment Orders: the Evidence and Ethical Implications’.[92] The University of Melbourne authors of the article reviewed the research data on whether or not community treatment orders were effective for the purpose of treatment enhancing patients’ lives. They concluded that there was not much evidence of overall effectiveness. Dr Simonelli told the Tribunal that in his opinion a CTO ought to provide more contact and engagement between the individual person and the mental health services. When the conditions of a CTO are not complied with, a person who is admitted to hospital will have very intense contact with mental health services in an in-patient setting. In many cases, a patient ‘struggles to appreciate and accept their mental health condition and the recommendations [and] is rejecting of the treatment’. This has been the Applicant’s history and it is likely to continue.[93] Dr Simonelli agreed that ‘forced treatment’ can be ‘alienating’ for patients, and that they may experience the help and support they need ‘as an interference’.[94]
[92] Exhibit R4.
[93] Transcript of Proceedings (6 April 2022) 64.
[94] Transcript of Proceedings (6 April 2022) 66.
In his report, Dr Simonelli provided the following opinion on the risk of the Applicant re-offending if he were to engage in the recommended treatment:
It appears that all of [MWNX’s] offending is linked to substance abuse. Thus, I would consider [MWNX’s] risk of re-offending to be low if he were to engage in the recommended treatment and remain abstinent from substance abuse. I would consider the treatment & care package to provide a level of supervision. Thus, early warning signs of a deteriorating mental state ought to be recognised with the necessary subsequent treatment and risk management steps followed. Thus, despite [MWNX] remaining at risk of relapse into substance abuse, the package would be such as to act as a sort of “safety net” to catch him before re-offending or a more serious decline in his mental health. Furthermore, the fact that [MWNX] has a Public Guardian and is not in control of his finances, adds a further layer of monitoring, supervision and control such as to further minimise his risks of re-offending.[95]
[95] Exhibit A2, 10.
In his report, Dr Simonelli provided his opinion as to whether the Applicant poses a risk to the Australian community:
It is my assessment that [MWNX’s] offending is closely related to his substance abuse. I see from his criminal record that he has multiple drug-related offences. His propensity for drug misuse, remains a risk factor for re-offending. [MWNX] has demonstrated past motivation to be abstinent from substance abuse and to engage in appropriate treatment, including residential treatment. The recent reports by his Public Guardian suggest that he remains motivated to address and resolve his substance use issues. I rate [MWNX’s] risk of re-offending to be low if he is to engage in the appropriate drug and alcohol treatment and couple this with intensive mental health care, including the utilization of a CTO. Once he establishes a level of stability in the community, the focus will need to shift to relapse prevention. I recommend that he establish a therapeutic relationship with a General Practitioner whom he feels is a good fit and who can oversee his physical health care. I recommend that [MWNX] remain engaged with a form of “maintenance” drug and alcohol counselling. This may be in the form of SMART Recovery or Narcotics Anonymous. [MWNX] has expressed desire to become a contributing member of the Australian community and work as a Taxi driver. This undoubtedly would be a worthwhile goal and contribute significantly to his rehabilitation.[96]
[96] Exhibit A2, 11.
Programs and treatment
The Applicant completed the Magistrates Early Referral Into Treatment (MERIT) program in April 2018.[97] The report produced on completion of the Applicant’s participation in the MERIT program reports that the Applicant attended all sessions including counselling and case management. The MERIT Clinician stated that the Applicant ‘participated well’ and ‘engaged well in the counselling and case management process’.[98] He relapsed shortly after completing the MERIT program around May 2018 and recommenced using marijuana.[99] Since this time, the Applicant has on several occasions refused to engage in any further intervention notwithstanding his ongoing substance abuse.[100]
[97] Exhibit R3, RTB, 330.
[98] Exhibit R2, G23, 6.
[99] Exhibit R3, RTB, 329-331.
[100] see for example Exhibit R3, TB 72-75, 77-78.
The Applicant’s IHMS record indicate that much of the support provided to the Applicant focused on limited one-hour drug and alcohol counselling sessions. They report that there are occasions the Applicant reported as required, and engaged with services providers, and other occasions where he presented as unwell, including comments about him being ‘erratic’, ‘pacing’, exhibiting ‘hysterical laughter’ and having a ‘bad odour’. A number of highly positive comments are recorded about the Applicant. The counsellor from DAMEC spoke ‘glowingly of his progress’,[101] other notes remark that the applicant was ‘well engaged and understood’ and ‘polite’.
[101]Exhibit R3, RTB 37.
Rehabilitation
In his sentencing remarks dated 10 December 2019, Magistrate Feather noted that the Applicant had breached prior judicial orders ‘by not accepting supervision’, adding that his ‘engagement in supervision with Community Corrections has been fairly poor apart from very limited periods during the duration of those bonds and also the orders that have been imposed by the Court, community corrections orders’.[102] His Honour further stated that a term of imprisonment was necessary to deter the Applicant from reoffending. His Honour referred to the Applicant’s use of synthetic cannabis, stating that research suggested that long term use of this illicit drug led to drug induced psychosis, and ‘that is the diagnosis that you have had in the past, drug induced psychosis. So that is the sort of future you have if you continue to abuse that type of substance …’[103] His Honour reduced the Applicant’s non parole period finding that he had ‘an acute need for rehabilitation’, that his rehabilitation prospects were ‘guarded’ as despite the past opportunities afforded to him by the Courts, he had continued to use illicit drugs. It was His Honour’s hope that following a period of detoxification in custody, the Applicant may find it ‘easier … to rehabilitate’ himself once he was released into the community.[104]
[102] Exhibit R2, G7, 50.
[103] Exhibit R2, G7, 51.
[104] Exhibit R2, G7, 52.
In relation to the prospects of the Applicant’s rehabilitation, Ms Joyce, the Applicant’s Public Guardian stated:
From the Public Guardian’s many discussions with [MWNX] he has presented as a quietly spoken, well-mannered man who has a very good grasp of the English language. The Public Guardian is of the view that with the right supports and programs in place [MWNX] would have a good prospect of being socially habilitated. To this end, the Public Guardian will continue to advocate for [MWNX] with regards to accessing the community support services available to him, which may include community mental health and drug and alcohol services. Such assistance will promote [MWNX’s] wellbeing, encourage prosocial behaviour and help with positive community engagement and integration.
In her most recent letter dated 15 March 2022, Ms Joyce identified a number of support options for the Applicant following the stabilisation of his mental health:
In November 2021 the Public Guardian referred [MWNX] to the Mental Health – Community Living Supports for Refugees (MH-CLSR) program run by STARTTS. This program can begin working with [MWNX] whilst he is detained at Villawood Detention Centre, however owing to [MWNX’s] current mental health issues he has been unable to engage with this program to date. It is anticipated that [MWNX] will actively engage with the supports available to him once he is receiving the required treatment and his mental health has been stabilised. The MH-CLSR program can provide mental health support as well as support with activities of daily living, skill development, to find housing and employment, and to access drug and alcohol programs. Should [MWNX’s] visa be reinstated, the Public Guardian will also be referring [MWNX] back to the Specialised and Intensive Services (SIS) program run by the Department of Social Services. The SIS program provides assistance to access mainstream services and supports, and to develop the skills needed to manage independently.
Impediments on return
The Applicant has some family members in Iran. He speaks Farsi and has some familiarity with the country.[105]
[105] ASFIC [124].
Ties to Australia
The Applicant does not have any family members who reside in Australia. In his evidence in his request for revocation and in his visa application, the Applicant claimed that he identities Australia as a country where he has ‘freedom’ and can express his views safely.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 25 February 2020 recording his criminal convictions and sentences. It records that on 10 December 2019, the Applicant was convicted in the Local Court of New South Wales of Possess Schedule 9 substance (four counts), Fail to appear in accordance with bail acknowledgment (two counts), Destroy or damage property (DV) and Possess prohibited drug (two counts) and was sentenced to an aggregate term of 12 months imprisonment. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 10 March 2020 the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must in accordance with paragraphs 8 and 9 of the Direction take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(ii) crimes committed against vulnerable members of the community …, or government representatives or officials due to the position they hold, or in the performance of their duties.
(iii) …
(iv) …
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) …
g) ...
Having regard to the factors in paragraphs 8.1.1(1)(a)(i)-(iii), the Tribunal finds that the Applicant’s offences involvingg the possession of illicit drug should be viewed seriously. It notes the comments made by Magistrate Feather in his sentencing remarks dated 10 December 2019 in relation to the harm caused to the community by the use of drugs, and the Applicant’s role in the ‘process of drugs entering into our community’. It however also notes that Magistrate Feather found that each of the Applicant’s offences sat ‘at the lowest end of the range of seriousness for offences of that nature’ as the amounts involved were ‘modest’.
Paragraph 8.1.1(1)(a)(i) of the Direction states that violent crimes are to be viewed very seriously. The Applicant has been convicted of Common Assault, Destroy or damage property (DV), and Stalk/intimidate physical etc harm (personal) following an incident of personal violence against a staff member of the Parramatta Settlement Services. Any offending of a violent nature is very serious as it has the potential to cause harm to members of the community. Paragraph 8.1.1(1)(b)(ii) of the Direction recognises that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has convictions for Resist officer in execution of duty which, together with his violent offences, must be viewed seriously.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[106] Magistrate Feather considered that a custodial sentence was appropriate, however His Honour was satisfied that there were special circumstances to vary the normal ratio of parole versus non-parole periods, to reduce the number of months served in custody to six months.
[106] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
Having regard to paragraph 8.1.1(1)(d) and (e) of the Direction, the Tribunal notes that the Applicant was not deterred from further offending despite being convicted of multiple offences. It further notes the frequency of the Applicant’s offending and the cumulative effect of repeated offending, including judicial breaches, and the trend of increasing seriousness in his offending which resulted in the imposition of a term of imprisonment in December 2019. The Applicant’s earlier criminal history adds to the serious nature of his offending as it has resulted in a cost to the community in terms of law enforcement and judicial resources.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future offending of a similar nature would have the potential to cause physical and/or psychological injury and/or financial harm to members of the Australian community. The use of illegal drugs increases demand for such illicit substances, which in turn perpetuates criminal activity, impacting adversely on the community as a whole. Any future reoffending by the Applicant may involve physical harm to his victims. The Applicant’s criminal offending has included physical violence, and if this were to be repeated, it would pose a significant risk of harm to members of the community. In respect of the nature of the harm to individuals, the Applicant has engaged in violent and abusive behaviour, which caused the NSW Police to hold serious fears for the safety of his victims. In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant. In addition, further resources from the criminal justice system, health system, and the Australian economy more broadly, would be directed to addressing the Applicant’s offending, including further arrests, court proceedings and rehabilitative programs. For these reasons, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant claims that he ‘has the necessary supports in place to help facilitate a process of rehabilitation, over a prolonged period that is complemented by appropriate mental health treatment’.[107] The evidence before the Tribunal is that these supports are available to the Applicant and can be tailored to his specific needs, including treatment for his schizophrenia diagnosis and trauma-based counselling. The Applicant has the support of the Public Guardian who is prepared to investigate and facilitate the supports the Applicant requires. The treatment plan proposed for the Applicant by Dr Simonelli would assist in stabilising the symptoms of the Applicant’s mental illness, and preventing the significant adverse health outcomes, including cognitive impairment, from untreated schizophrenia, and allow him to lead a safe life in the community. Dr Simonelli’s evidence is that the treatment and support he recommends for the Applicant have not previously been accessed by him. These supports will be made available to the Applicant in the community, irrespective of whether the CTO is issued, and are highly likely to provide treatment for the Applicant’s mental health condition, and thereby address the primary criminogenic risk factor for him re-offending.
[107] ASFIC [51].
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low to moderate. In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, the Tribunal finds this risk to be unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.1.1(2) of the Direction prescribes that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. This consideration does not arise on the material before the Tribunal.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). The Applicant has not identified any minor children and this consideration does not arise on the material before the Tribunal.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b)…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)…
(f) …
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant contends that the Tribunal should find that the deemed expectations of the community are outweighed by his particular circumstances, namely his status as a refugee and vulnerabilities due to his mental health, and the consequences for him as a result of a non-revocation decision.[108] These contentions invite the Tribunal to independently assess the community’s expectations as they pertain to this particular case. This is not the task which is required of the Tribunal under the Direction.
[108] Reference to Applicant’s SFIC
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[109] It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[110]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[111] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[112]
[109] Charlesworth J at [66]; Stewart J at [91].
[110] Charlesworth J at [67]; Stewart J at [104].
[111] Charlesworth J at [76].
[112] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[113] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for the decision-maker is the weight to be attached to this consideration.
[113] Charlesworth J at [77].
The Respondent submits that in observing the norm stipulated in paragraph 8.4(1), and principles 5.2(2), (3) and (4), the Australian community would expect that the Applicant should not continue to hold a visa. This he contends is supported by the following factors:
·his unacceptable risk of reoffending;
·his squandering of the countless opportunities afforded to him to rehabilitate and address his risk factors;
·and Australia’s low tolerance of criminal conduct by non-citizens such as the Applicant who arrived in Australia as an adult and who have been participating in and contributing to the Australian community for a relatively short period of time.[114]
[114] Insert reference to SFIC
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached a number of Australian laws and committed serious offences, which the community would generally expect to result in the cancellation of his visa. The Applicant arrived in Australia in November 2012 and has resided here for almost a decade. Having regard to the factors in principle 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, this supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’)[115]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[115] [2018] FCA 594 [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[116] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held at [23] that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’. His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.
[116] [2021] FCA 775 [22].
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
Paragraph 9.1 of the Direction relevantly provides:
1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
International non-refoulement obligations
There is no evidence before the Tribunal that consideration had been given to removal of the Applicant to another country in circumstances in which he is unable to be removed to Iran. Nor is there evidence as to whether the Minister has considered exercising his discretionary powers in favour of the Applicant. As this is an alternative to removal of the Applicant to Iran, it is relevant to the legal and practical consequences of a non-revocation decision. The Tribunal has considered whether the Minister would exercise his discretionary powers in favour of the Applicant under section 195A to grant him another visa, or under section 197AB to make a residence determination to enable him to reside at a specified place in the community, subject to appropriate conditions.
The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) (RALC Explanatory Memorandum) relating to the addition of s 197C into the Act, provided:
Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in s 198 of the Migration Act. For example, Australia’s non-refoulement obligations will be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act.[128]
[128] 166 [1142].
Similarly, the COIR Explanatory Memorandum stated:
The Government’s preference is to manage non-citizens in the community wherever possible, subject to meeting relevant requirements, including not presenting an unacceptable risk to the safety and good order of the Australian community. The Minister has a personal discretionary power under the Migration Act to intervene in an individual case and grant a visa, including a bridging visa, to a person in immigration detention, if the Minister thinks it is in the public interest to do so. What is and what is not in the public interest is for the Minister to decide.
The Minister also has a personal discretionary power to allow a detainee to reside outside of an immigration detention facility, at a specified address in the community (residence determination). While a residence determination permits an individual to be placed in the community subject to certain conditions, it continues to be a detention placement.
The Minister’s powers to consider whether to grant a visa to permit an unlawful non-citizen’s release from immigration detention, or to permit a community placement under a residence determination, until they are able to be removed from Australia consistently with non-refoulement obligations, means that the person’s individual circumstances, and the risk they may pose to the Australian community can be taken into account. This enables the least restrictive option to be implemented for the person having regard to their circumstances.[129]
[129] 13-14.
There is currently no evidence before the Tribunal that the Minister is considering an exercise of his personal powers in ss 195A or 197AB of the Act, nor is there evidence that he would do so in future. While those powers remain available to the Minister, the Tribunal cannot speculate on the Minister exercising those powers in the Applicant’s circumstances. It finds however that the guidance contained in PAM 195A and PAM 197AB indicates that in circumstances such as the Applicant’s where a visa has been cancelled under section 501 due to failure to satisfy the character test, it is unlikely that the matter would be referred to the Minister for the exercise of his discretionary powers under s 195A or s 197AB of the Act.[130]
[130] I PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence detention intervention power (PAM 195A) and PAM3: Act - Compliance and Case Resolution - Case resolution - Minister’s powers - Minister’s residence determination power (PAM 197AB).
For these reasons, the Tribunal finds that while the powers in ss 195A and 197AB of the Act remain available, the immediate legal effect of non-revocation in the Applicant’s circumstances is him being detained in immigration detention without a fixed chronological endpoint.[131]
[131] Respondent’s Supplementary submissions at [9] citing WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [136].
In FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) (‘FRVT’) the Tribunal reached the same conclusion in relation to potential exercise of the Minister of his discretionary powers where the applicant’s protection visa was mandatorily cancelled:
the Tribunal considers that it is very unlikely that the Minister, having decided not to revoke the mandatory cancellation of the Applicant’s Protection visa, will exercise any non-compellable discretions, including those in sections 48B, 195A or 501J of the Act, in the Applicant’s favour. This is especially so in the case of the Minister’s broad discretion under section 195A of the Act to grant visas to persons in detention.[132]
[132] [2020] AATA 294 at [279] and [312].
The approach taken by the Tribunal in FRVT has been applied by the Federal Court in BAL19 v Minister for Home Affairs;[133] MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs;[134] and DQM18 v Minister for Home Affairs.[135]
[133] [2019] FCA 2189 [42]-[46].
[134] [2021] FCAFC 35 [42], [53], [55] and [73].
[135] [2020] FCAFC 110 at [108]-[109].
For the reasons stated above, the Tribunal finds that the consequences of a non-revocation decision are that the Applicant will be held in detention without a ‘chronologically fixed endpoint’.[136]
[136] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [132].
Ongoing immigration detention
The COIR Explanatory Memorandum stated as follows in relation to the detention of non-citizens who engage Australia’s non-refoulement obligations but who cannot be removed from Australia:[137]
The amendments in the Bill are primarily aimed at protecting from removal those persons who engage Australia’s non-refoulement obligations, but where character or security concerns mean they are ineligible for the grant of a protection visa. Persons who are granted a visa are not subject to removal. This means that persons affected by the amendments may be subject to ongoing immigration detention under section 189 of the Migration Act.
Immigration detention remains a key component of border management and assists in managing potential threats to the Australian community – including national security and character risks – and ensures people are available for removal.
Unlawful non-citizens who are unable to be removed due to barriers which include, but are not limited to, the situation where the amendments to section 197C made by this Bill will operate to protect them from removal in breach of non-refoulement obligations, may be detained until their removal is reasonably practicable. Removal in such cases may become possible if, for example, the circumstances in the relevant country improve such that the person no longer engages non-refoulement obligations, or if a safe third country is willing to accept the person. An unlawful non-citizen may also request in writing to be removed from Australia.
Held detention in an immigration detention centre is a last resort for the management of unlawful non-citizens, particularly individuals whose removal may not be practicable in the reasonably foreseeable future.
[137] 13.
If the Mandatory Visa Cancellation Decision is not revoked, the Applicant will remain in immigration detention whilst the Minister considers whether he can be returned to another country, or whether he will exercise of one of his discretionary powers under the Act. In WKMZ Kenny and Mortimer JJ observed that consideration of these options may take some time:[138]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end. It may be inferred that any decision by the executive to abandon its adherence to Australia’s international obligations would, as White J said in AQM18, be a serious step and not a decision taken quickly.
[138] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 [132].
In MNLR v Minister for Immigration, Citizenship and Multicultural Affairs, Wigney J considered the potential for ‘indefinite detention’ arising from circumstances where it is not reasonably practicable to remove an unlawful non-citizen from Australia:[139]
It has also been said, in this context, that the effect of s 197C is that indefinite detention is “not a possibility” (AQM18 at [25]) or “no longer arises”: Uolilo [v Minister for Home Affairs [2020] FCA 1135] at [91]. Those statements are undoubtedly correct if “indefinite” in this context is taken to mean that the period of detention may not, or will not, ever come to an end. That is because the detention will come to an end when the unlawful non-citizen is either granted a visa (in which case they are no longer an unlawful non-citizen) or they are removed from Australia pursuant to s 198 of the Act. Those statements are, however, somewhat questionable if “indefinite” is taken to mean that the actual period in which the non-citizen may or will remain in detention is unable to be defined or determined with any precision.
There could be little doubt that the length of time that an unlawful non-citizen may spend in immigration detention may in some circumstances be very uncertain and very lengthy. That is particularly the case where the circumstances are such that it is not reasonably practicable to remove the unlawful non-citizen from Australia, for example where they are stateless or their nationality or citizenship is uncertain and no country will agree to receive them, and it cannot be said with any certainty when those circumstances may change. Detention is nonetheless to continue indefinitely in those circumstances until the person is able to be removed: Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [33]-[35] (per McHugh J), [227]-[231] (per Hayne J), [299], [301] (per Callinan J) and [303] (per Heydon J).
[139] [2021] FCAFC 35 at [93]–[94].
In the Applicant’s circumstances, there is most likely to be a significant delay while steps are taken to identify a country which will agree to receive him. During this period, he would be subject to ongoing immigration detention.
Having considered the circumstances referred to above, the Tribunal finds that the most likely consequence of a decision to not revoke the Mandatory Visa Cancellation Decision is the Applicant’s ongoing immigration detention, and that the period of his loss of liberty may be very lengthy and have no chronologically fixed endpoint.
This consequence would be highly detrimental to the Applicant’s psychological health and well-being and would also be in breach of Australia’s international obligations and human rights standards. The Tribunal finds that the consequence of ongoing immigration detention is a factor that weighs very heavily in favour of revoking the Mandatory Visa Cancellation Decision.
While the Tribunal finds that ongoing immigration detention is the most likely consequence of non-revocation of the Mandatory Visa Cancellation Decision, it cannot discount the potential that the Applicant will voluntarily return to Iran where he will be at risk of harm inconsistently with Australia’s non-refoulement obligations. This consequence would be highly detrimental to the Applicant and weighs heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
In conclusion, the legal and practical consequences of a decision not to revoke the Mandatory Visa Cancellation Decision is the prospect of his ongoing immigration detention with no chronologically fixed endpoint or his removal to Iran contrary to Australia’s non-refoulement obligations. The Tribunal finds that these consequences both weigh very heavily in favour of revocation.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1) Decision-makers must consider 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.
Having regard to the factors in paragraph 9.2(1)(a) and (c) of the Direction, the evidence before the Tribunal is that the Applicant is aged 40 years and has a significant mental health condition and substance abuse problems. As a citizen of Iran, the Applicant would have the same access to any social, medical and economic support as other citizens although such services may not however be of the same standard as those available in Australia. The Direction provides that the extent of any impediments to an applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in Iran until the age of 30 years and speaks Farsi and is familiar with life in his home country. It will take time for him to readjust to life in Iran and to find suitable employment. The Applicant’s evidence is that he worked as a taxi driver in Iran. He should be able to find similar employment if his mental health condition improves and he is able to work. The Applicant’s family members are in Iran and should be able to provide him with some level of support until he is able to find suitable accommodation and employment.
Having regard to the evidence before it, the Tribunal finds the Applicant will likely face hardship if he is required to establish himself in Iran having not lived there for almost a decade. The extent of the hardship that the Applicant may face should he return to Iran will depend on the degree of support (economic, caring and social) that he might receive from his family in Iran. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the views of the Applicant’s victimsand the impact on them of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
a) 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.
Having regard to paragraph 9.4.1(1) of the Direction, the evidence before the Tribunal is that the Applicant does not have any immediate family members in Australia. In relation to his other ties, the Applicant has resided in Australia for almost a decade. However, as required by paragraph 9.4.1(2) of the Direction the Tribunal has attached less weight to the Applicant’s period of residence in circumstances where he began offending two years after his arrival. There is no evidence that the Applicant has made any positive contribution to the Australian community or that he has any social links with Australian citizens. Nor does he have any employment history in Australia.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to Iran. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his lack of employment or other positive contributions to the community, and his limited family and social ties in Australia, the Tribunal finds that this consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The Applicant’s criminal offending is serious, particularly as it has included drug offences and offences involving violence. The low to moderate risk of him committing future criminal offences coupled with the nature and seriousness of the harm this would cause to his future victims and the community is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 4 weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious family violence offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the potential for the Applicant t held in immigration detention for a very lengthy period with no chronologically fixed endpoint weighs heavily in favour of revocation. The extent of impediments he will face if he were to voluntarily return to Iran also weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked and decides that the Reviewable Decision should be set aside.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 31 January 2022, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant's Class XE Subclass 790 Safe Haven Enterprise visa is revoked.
I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.....................................[sgd]...................................
Associate
Dated: 1 June 2022
Dates of hearing: 6 & 7 April 2022 Solicitors for the Applicant: Ms Stephanie Blaker, Legal Aid NSW Counsel for the Respondent: Ms Rachel Francois Solicitors for the Respondent: Ms Madeleine Kelly, Sparke Helmore Lawyers
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