NDRW and Minister for Home Affairs (Migration)

[2018] AATA 2144

NDRW and Minister for Home Affairs (Migration) [2018] AATA 2144 (6 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2118

Re:NDRW

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance 

Date:  6 July 2018  

Place:Sydney

The reviewable decision made 12 April 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s visa, is affirmed.

.......................[sgd].................................................

J W Constance
Deputy President

Catchwords

MIGRATION – mandatory cancellation of visa –– discretion to revoke cancellation of visa – Ministerial Direction No. 65 – protection of the Australian community – seriousness and nature of conduct – assault – possession of prohibited substances – burglary – best interests of minor children in Australia affected by the decision – expectations of Australian community – risk to community should conduct be repeated – international non-refoulement obligations – decision affirmed

Legislation

Migration Act 1958 (Cth)

Cases

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Secondary Materials

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

REASONS FOR DECISION

6 July 2018

PART A: INTRODUCTION

1. The Applicant is a 29-year-old citizen of Somalia. He was 14 in 2003 when he migrated to Australia with his brother and his family.  Immediately prior to 6 July 2017 he held a Class XB Subclass 204 Refugee and Humanitarian Visa.[1]

   [1] Exhibit R1at 5.

2. On 2 June 2017 the Applicant was sentenced to imprisonment for six months and one day for assaulting a public officer performing a function of office. [2] He commenced serving the term of imprisonment on that day.

   [2] Exhibit R1 at 19.

3. On 6 July 2017 a delegate of the Minister for Immigration and Border Protection cancelled the Applicant’s visa (“the cancellation decision”).[3] This decision was made on the basis that the delegate was satisfied that the Applicant did not pass the character test set out in the Migration Act 1958 (Cth) and that he was serving a term of imprisonment on a full-time basis in a custodial institution.[4]

   [3] Exhibit R1 at 75.

   [4] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.

4. In accordance with the procedure set out in the Act, the Applicant made representations to the Minister seeking a revocation of the cancellation decision. On 12 April 2018 another delegate of the Minister decided not to revoke that decision.[5] The decision of 12 April 2018, referred to as “the reviewable decision”, is the subject of this application for review.

   [5] Exhibit R1 at 5.

5. At the time of the hearing of this application the Applicant was being held in immigration detention.

6. For the reasons which follow, the reviewable decision will be affirmed.

   PART B: BACKGROUND

7. Unless otherwise stated the following findings of fact are based on the evidence of the Applicant.

8. The Applicant was born in 1989. He describes his childhood as follows:

   4. It is difficult for me to remember life in Somalia. My mum and dad lost their lives in Somalia. They were killed in front of me. I find it distressing to think about and try to forget it. When people ask me questions about Somalia I just say that I cannot remember. My brother and his wife took me, and their two daughters, to Kenya to escape.

   5. I spent around nine years in the Kakuma Refugee Camp in Kenya. It was difficult to live there. We did not have a lot of food and sometimes the water would be cut off. When this happened we would be without water for about a week and we had to walk to a lake of big dig holes and get water. UNHCR would feed us once or twice a week with items like flour and maize. This was a hard experience for me.

   6. I started going to primary school at the Kakuma Refugee Camp but I did not stay long. My cousins and I were the only Somalian children at our school and we would get rocks thrown at us. Sometimes they would bash us straight after school and we would have to run away. One time I heard that a girl had been beaten after school and had died. I stopped going to school after that because I was so scared.

   7. At the Kakuma Refugee Camp my relatives had a little shop where we would sell items like sugar or detergent. My brother’s wife opened up the store. One night I remember people coming in to the shop with guns which looked like an AK-47s [sic] and pulled it on my niece. She might have been 11 or 12 at the time and they held the guns in front of her face. I was about 10 years old at the time. She started crying and my brother’s wife came in and started begging for her life. These things often happened and there was a lot of corruption. I felt scared a lot. Night time was very scary and people would walk around with guns and rob people. I only have horrible memories from my time in the Kakuma Refugee Camp and I get upset when I talk about my time there.[6]

   [6] Exhibit A1 at [4]-[7].

9. I accept the Applicant’s evidence in this regard. It was not challenged by the Minister.

10. When he migrated to Australia in 2003, the Applicant lived with his brother and his family for about eight months. He was then sent to visit relatives in Uganda and Tanzania for about two years. While he was in Uganda he experienced further distressing events including witnessing a man being shot and killed by police.

11. In 2006, when he was 16 or 17 years old, the Applicant returned to Australia. He again lived with his sister-in-law and her children. His brother was in Africa for some of this time. A short time later, the Applicant moved out of the home and lived in hostels. At times he was virtually homeless, leading a life of “couch-surfing”. He started using illegal drugs and drinking alcohol excessively.

    The Applicant’s criminal record

12. A National Police Certificate issued in respect of the Applicant[7] shows that he has been convicted of numerous offences in Australia. A copy of the Certificate is “Annexure A” to these reasons.

    [7] Exhibit R1 at 19-24.

13. The offences in respect of which a term of imprisonment was imposed are as follows:

Court Date	Offence and term of imprisonment
2 June 2017	Assault a public officer performing a function of office/employment: 6 months and 1 day imprisonment
2 June 2017	Obstructing public officers: 3 months imprisonment
19 November 2017	Assault occasioning bodily harm: 3 months imprisonment
19 November 2017	Breach of suspended imprisonment order of 17 April 2014:  7 months imprisonment
19 November 2017	Assault occasioning bodily harm: 3 months imprisonment
10 February 2009	Burglary and commit offence in dwelling: 12 months imprisonment
10 February 2009	Burglary with intent in place: 6 months imprisonment

Courts’ Sentencing Remarks

February 2009 - burglary (two counts)

1. These two separate charges arose from the Applicant’s entry into an unoccupied dwelling and a separate entry into business premises by throwing a brick through a window. He was heavily affected by alcohol on both occasions.

2. When imposing concurrent prison sentences of six and twelve months the Court said, in part:

   So as I explained to you, these two burglaries justify the prison sentence. I gave you the opportunity to engage in a community based order to see if you were suitable to do an order, rather than have to go to gaol, and the reports are very clear that you didn’t engage. You made no attempt to engage and in the end they recommended and they say that you’re not suitable for a community based order to your unwillingness to attend counselling as directed, and your denial of substance abuse issues.

   That initial pre-sentence report outlined the situation that you were confronted with in Kenya, and presumably pursuant to that, Australia gave you the opportunity to come to this country, where you were free from that sort of threats of violence, where you had a chance to live in an environment where you weren’t going to be threatened. Instead of showing appreciation for that fact, you in fact, show contempt for Australia by going out and committing these burglaries, and then when you were given the opportunity to engage to overcome your difficulties, you ignored it; couldn’t be bothered; weren’t willing to do so.

   So regrettably, even though you’re a young man and because of the nature of these burglaries […], I think the only alternative is for a prison sentence because you appear to have no intention to adhere to any community based dispositions and the message that doesn’t seem to be getting through to you is that you cannot commit these serious offences like burglaries and you’ve committed two of them.

   We’ll start with the charge in the dwelling – the burglary in the dwelling where you went with your friends and stole property valued at $500 on that one. You’re sentence to 12 months’ imprisonment, eligible for parole, and there’s an order for return of property to the owner. On the other burglary, the burglary on the Swan Taxis, and we’re told there that you went to that place and picked up a large rock and threw it through the window.

   On that one, you’re sentenced to six months imprisonment, concurrent, eligible for parole.[8]

   [8] Exhibit R1 at 45-46.

   April 2014 - three counts of assault and one of assault occasioning actual bodily harm

3. On 17 April 2014 the Applicant was convicted of assaulting two bus drivers in one incident and two women associates in a separate incident. In sentencing the Court said, in part:

   [t]he facts of the matters where you spat in the face of the two bus drivers – that’s really disgusting […]. You can’t do that. It is bad. And it is a completely unacceptable way to behave. It is also a very offensive thing to happen to those victims and they don’t know whether they may get some disease, and this was against two bus drivers, who are pretty defenceless.

   …

   The assaults on the two ladies, they were most unpleasant and that left them very frightened and you can understand that. Particularly with […], it was a pretty nasty thing to do.

   …

   You’ve also got some issues. You’ve got drug problems and you’ve been drinking too much alcohol. And at the end of the day, unless you deal with those – unless you stop doing that, work out a way to stop using the drugs and stop drinking so much, you’re not going to have much future, you’re not going to be able to get a job that will give you money to spend on the things that you probably want to have and to actually probably, I suspect, get along with your brother. I’m sure he doesn’t want you causing trouble when you’re using drugs and drinking alcohol.

   …

   I’ve heard from community corrections and you say that it would be useful for you to get some help from them and they can help you with a number of the problems that you’ve got.

   …

   I consider […] that the seriousness of the offences, particularly the spitting assaults, on the bus drivers – it is the case that only a sentence of imprisonment can be justified for those. That is something which I consider is so serious that you need to have a sentence of imprisonment on you for those.

   …

   I’m also going to put you on what’s called an intensive supervision order – you don’t have to worry too much about the name.

   It’s a community based order. It’s nothing to be scared about. It’s to help you. Okay? The whole idea is to give you some help. And that’s going to be for 12 months, as they’ve said is [sic] a good time. They will be giving you some help by way of some programs – whatever they think will be suitable. You will have a good long talk to them and – to see what help you need. Do you understand?

   …

   So for offence 65898 of ’13, assaulting the driver of a passenger vehicle, there is a sentence of seven months imprisonment, suspended for nine months. For the charge of assault occasioning bodily harm, 65899 of ’13, there is an ISO of 12 months with the requirements of supervision and a program as directed. And in those matters, there’s $66 costs.

   …

   For the common assault, 65900 of ’13, on […], there is an intensive supervision order for 12 months with programming as directed and supervision. … For assaulting a public officer 344 of ’14, Joondalup charge, there is a sentence of seven months imprisonment, suspended for nine months.[9]

   November 2014 – assault occasioning actual bodily harm, possession of cannabis and two breaches of community orders

   [9] Exhibit R1 at 35-38.

4. On this occasion the charges of breaching community orders arose from the convictions referred to in the preceding paragraph. The sentences imposed are set out earlier in these reasons. In respect of the assault occasioning actual bodily harm the Applicant was sentenced to three months imprisonment, taking into account that he had been held in custody for three months prior to being sentenced.[10]

   [10] Exhibit R1 at 32.

5. The Court said, in part:

   Of those offences that you pleaded guilty to, the most serious, of course, in my judgment is the assault occasioning bodily harm. You chased the victim to recover, as I understand it, what was taken from you, a wallet and you pushed, you punched her and she was knocked out for a very brief few minutes, to give some sense of the force of the punch. That was an offence of violence.

   …

   It was violent conduct. It was violent conduct at a time that you were subject to a suspended term of imprisonment as well as an intensive supervision order, an intensive supervision order that you had breached by failing to report although Mr Hope puts that in context as to the circumstances in which you failed to report. There are some extenuating circumstances in relation to that failure to report. You have a record, which I’ve acknowledged, that you are no stranger to our criminal justice system. There has been a pattern of continuing disobedience with the law.[11]

   June 2017 – assaulting a public officer, obstructing a public officer, failing to comply with a request for personal details

   [11] Exhibit R1 at 30.

6. On this occasion the Court said, in part:

   By far the most serious charges that you face are the assault public officer and obstruct. You were on public transport. Apparently you were asleep on the train. You were approached by an officer and, as a result of being approached, you grabbed the officer by the throat and kicked the officer. And then continued to struggle.

   You have had a very sad background. I accept that. But in 2014 you were imprisoned for assaulting a driver of a passenger vehicle, assault occasioning bodily harm and assaulting a public officer. That followed you being placed on a suspended imprisonment order in 2014 and breaching it. You’ve expressed the view that you don’t want to be placed on a community-based order. And in those circumstances, in my view, I have little option but, in respect to the most serious charges, to imprison you.

   …

   In respect to the assault, the appropriate penalty, before taking into account your plea of guilty, would have been one of seven months. I would reduce that to eight months and one day.

   …

   On the obstruct public officer there’s three months imprisonment, but that will be concurrent.[12]

   [12] Exhibit R1 at 26-27.

   Previous visa cancellation

7. In December 2015 the Applicant’s visa was cancelled under section 501(3A) of the Migration Act. The cancellation was based on the Applicant’s criminal offending and his serving a term of imprisonment. This cancellation was revoked by a delegate of the Minister on 6 July 2016.

8. In the letter dated 6 July 2016, which notified the Applicant of the revocation, the following paragraph appeared in bold:

   Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[13]

   [13] Exhibit R1 at 72.

   Failure to pass the character test

9. It is not in dispute that, by reason of his criminal record, the Applicant does not pass the “character test” set out in the Migration Act.[14]

   [14] Applicant’s Statement of Issues, Facts and Contentions dated 15 June 2016 at [3].

   PART C: THE RELEVANT LEGISLATION

10. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

    (3A)The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

    This mandatory cancellation decision is referred to later in the Act as “the original decision”.

11. Subsection 501(7)(c) provides:

    (7)  For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)  the person has been sentenced to a term of imprisonment of 12 months or more

12. Subsection 501CA(3) provides:

    (3)  As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

13. 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.

14. The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’ visa is provided by section 500 of the Act.

    PART D: DIRECTION NO. 65

15. Under subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.

16. Subparagraph 6.1(3) of the Direction provides, in part:

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

17. Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”

18. Under the heading General Guidance, subparagraph (1) provides:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

19. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa will be revoked.

20. In paragraph 6.3 the Minister sets out the principles that provide the framework with which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

1. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[15] Primary considerations should generally be given greater weight than the other considerations.[16]

   [15] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [6.2(3)], [8(1)].

   [16] Ibid at [8(4)].

2. Paragraph 13(2) provides:

   In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

   a)Protection of the Australian community from criminal or other serious conduct;

   b)The best interests of minor children in Australia;

   c)Expectations of the Australian community.

3. Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:

   In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

   a)International non-refoulement obligations;

   b)Strength, nature and duration of ties;

   c)Impact on Australian business interests;

   d)Impact on victims;

   e)Extent of impediments if removed.

   PART E: THE ISSUE FOR DETERMINATION

4. I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 26). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.

5. It is not in dispute that the Applicant has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether “there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked.”[17]

   [17] Migration Act 1958 (Cth) s 501CA(4)(b)(ii).

6. If I am satisfied of all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[18]

   [18] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].

   PART F: REASONING

   F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

7. I must have regard to matters set out in paragraph 13.1, which include:

   ·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community;

   ·[t]he nature and seriousness of the non-citizen’s conduct to date;

   ·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[19]

   [19] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

   F1.1: The nature and seriousness of the Applicant’s conduct to date

8. The Applicant’s conduct to date involves violent offending (including an assault on a public officer), dishonesty, illegal possession of a weapon, illegal possession of drugs, and numerous breaches of court orders. This conduct must be regarded as extremely serious. In reaching this conclusion I have considered the remarks of the various courts set out earlier in these reasons.

9. I have also taken into account that the Applicant continued to offend after he received a warning in July 2016 as to the risk of his visa being cancelled if he engaged in criminal conduct. Notwithstanding this warning he committed several offences, including the assault of a public officer.  The offences committed since July 2016 are:

   ·January 2017 – possession of a prohibited drug;

   ·January 2017 – giving false personal details to the police;

   ·January 2017 – failing to produce a valid transport ticket;

   ·January 2017 – no authority to drive (never licensed);

   ·January 2017 – exceeding 0.02g of alcohol per 100ml of blood whilst driving a motor vehicle;

   ·February 2017 – possession of drug paraphernalia in or on which there was a prohibited drug or plant;

   ·February 2017 – possession of a prohibited weapon;

   ·February 2017 – possession of a prohibited weapon;

   ·April 2017 – possession of drug paraphernalia in or on which there was a prohibited drug or plant;

   ·April 2017 – stealing;

   ·April 2017 – obstructing public officers;

   ·April 2017 – failed to comply with request to give police personal details;

   ·April 2017 – failed to comply with request to give police personal details;

   ·April 2017 – disorderly behaviour in public;

   ·April 2017 – assault of public officer performing a function of office;

   ·May 2017 – possession of housebreaking implement to commit a crime at night time;

   ·May 2017 – possession of a prohibited drug (methylamphetamine); and

   ·May 2017 – possession of a prohibited drug (MDMA).[20]

   F1.2: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

   [20] Exhibit R1 at 132-134.

10. Direction No. 65 states that I “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.”[21]

    [21] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [13.1.2(1)].

11. There are also considerations to which regard must be had cumulatively:

    (a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[22]

    [22] Ibid at [13.1.2(2)].

    The nature of future harm

12. In view of the seriousness of the Applicant’s conduct and in line with the principle stated above, the Australian community’s tolerance for the risk of any harm which may come of future misconduct by the Applicant would be low. Should the Applicant further engage in such serious conduct, there would be a significant risk of physical harm to members of the community and loss of property arising from offences such as burglary. Such offences would cause uncertainty and concern in the community in which such offences were committed.

13. As noted previously, the Applicant has had the benefit of numerous supervisory orders, many of which he has contravened. This has necessitated further court appearances. Continued conduct of this nature would result in the waste of community resources.

14. I conclude that the nature of future harm should the Applicant continue to engage in conduct such as that in which he has already engaged, is serious.

    The likelihood of the Applicant engaging in further criminal or other serious conduct

    The Applicant’s evidence

15. The Applicant says that he has been successfully rehabilitated and will not re-offend; he contributes this rehabilitation to his own efforts. He says that he has not consumed alcohol or illicit drugs in the last year.

16. In his statutory declaration made 14 June 2018 he said, in part:

    When I look back on everything now my actions seem so stupid. Alcohol has done nothing for me. I thought it would relieve my pain and make it go away and help me not be stressed, but I look at where I am now, and can see that it has not helped me. I feel stressed every day and I am worried I will be sent back to Somalia.

    I have learnt many lessons in the community, in immigration detention, and in prison. When I was in prison worked [sic] in the laundry with another man. When he started working in the laundry I can remember that he was doing the hardest jobs. He kept doing these jobs and then he became the supervisor. This was more comfortable position. He showed me that if I work hard I will be able to get higher positions. He also showed me how to open a savings account. If I get released from detention I want to find a job and open my own savings account in the community. When I look at how much money I would have spent on drugs and alcohol I can’t believe it.

    I have also met lots of people in detention who have opened my eyes. At Christmas Island, I have met people who came here by boat to try and live in Australia and they are still in detention. I have told people about the things that I have done and they woke me up. They have laughed at me and told me that I was wasting my opportunity in Australia. I agree with them.[23]

    [23] Exhibit A1 at [23]-[25].

17. Should the Applicant be free to do so, he plans to live with his cousin, Ms I, and her family. He plans to again seek the help of Outcare, an organisation which provides counselling and other assistance to former prisoners upon release.

18. The Applicant did some basic training in bricklaying while he was in prison and, if he is free to do so, he plans to become a qualified tradesman in this field.

19. By reason of his relatively short prison terms, the Applicant has had very little opportunity to engage in rehabilitation programs while he was incarcerated. He failed to participate in drug rehabilitation counselling offered to him outside the prison system. He has attended some counselling sessions while he has been in immigration detention but these have been very limited.

    The evidence of Ms I, the Applicant’s cousin

20. Ms I provided a statutory declaration dated 18 June 2018[24] and gave evidence at the hearing. Ms I impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence.

    [24] Exhibit A2.

21. Ms I said that when the Applicant lived with her family he was very respectful and abided by the rules in her home. The Applicant has a close connection with her family and is welcome to return to live with them should he be released from detention. Ms I has a full-time job and is willing to help the Applicant financially until he is able to find employment. If the Applicant returns to live with the family he will not be permitted to consume alcohol in the home or to bring friends there.

    Discussion

22. Taking all the above factors into account, I have reached the conclusion that there is a significant risk that the Applicant will continue to engage in criminal conduct of the type he has engaged in in the past.

23. By reason of the seriousness of the potential harm to the community should the Applicant re-offend, the community’s tolerance of the risk of such harm is low.

24. Unfortunately, in large part because of his own actions, the Applicant has received very little treatment for his drug and alcohol problems. His resolve to not abuse drugs and/or alcohol is yet to be tested in the community.

25. Over many years the Applicant has been warned of the consequences of his re-offending. He has repeatedly breached court orders designed to assist his rehabilitation. Most significantly he did not heed the specific warning that his visa could be cancelled for a second time. This warning was given to him in July 2016. Despite this warning he continued to break the law. In my view, his offending escalated when he assaulted a police officer.

26. While Ms I’s willingness to support the Applicant should he be released is commendable, she acknowledged that there may be circumstances when she could no longer offer that support. When she gave evidence, Ms I said that if the Applicant did not comply with the rules of her household he would be “kicked out”.[25]  If this were to happen there would be a very real risk the Applicant would revert to his previous criminal lifestyle.

    [25] Transcript 25 June 2018.

27. In these circumstances I am satisfied that the need to protect the Australian community from the effects of serious misconduct such as that in which the Applicant has engaged, weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.

    F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

28. The only minor child who the Applicant claims should be considered is the 16 year-old son of Ms I.

29. When the Applicant lived with Ms I and her family he had a close relationship with the son. They played games together, watched movies and played soccer.

30. Ms I gave evidence that her son inquires as to the Applicant’s well-being and often asks when he is returning to live with them. Further, she says that if the cancellation of the Applicant’s visa is not revoked her son will be caused significant emotional stress.[26]

    [26] Exhibit A2 at [10].

    Discussion

31. It is now approximately two years since the Applicant lived with the family. I am satisfied that if the cancellation of the Applicant’s visa is not revoked and he is not able to spend time with the son of his cousin, the child may experience some sadness and perhaps a sense of loss. However, I am not satisfied that the effect on the child would be any greater than this. There is no evidence, other than that of the Applicant and his cousin, to suggest otherwise.

32. The consideration of the best interest of Ms I’s son weighs only slightly in favour of a decision to revoke the cancellation of the visa.

33. There is evidence that there are other minor children within the Applicant’s extended family who are in Australia at the date of the decision in this application. There is no evidence that any of these children would be affected by the decision of the Tribunal. The Applicant does not contend otherwise. 

    F3: Primary Consideration 3: Expectations of the Australian community

34. Clause 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

35. It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be differing views as to whether the Applicant should be able to continue to enjoy the privilege of remaining in Australia.

36. Under the heading of Principles, paragraph 6.3(1) provides that being able to remain in Australia is a privilege for a non-citizen. Further, it is a privilege conferred in the expectation that the non-citizen is, and has 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.”

37. The Applicant has not been law-abiding and has not respected Australia’s law enforcement framework, even after he was given the warning and second chance offered to him in 2016. Further, as I have found, there is a significant risk that the Applicant will continue to engage in criminal or other serious conduct if he is released into the community. On the other hand, as I detail later in these reasons, there is a risk to the Applicant should he be returned to Somalia.

38. Taking the above considerations into account, I have formed the view that the Australian community would expect that the decision to cancel the Applicant’s visa would not be revoked.

    F4:  Other considerations set out in Direction No.65

39. Clause 14 of the Direction provides:

    (1)  In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

    International non-refoulement obligations

40. Subparagraph 14.1(1) of the Direction reads:

    (1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

41. In BCR16 v Minister for Immigration and Border Protection[27] the Full Court of the Federal Court said:

    We also accept the appellant’s submissions that the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

    In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

    [27] [2017] FCAFC 96 at [48]-[49].

42. I adopt what the Tribunal said in HSKJ and Minister for Immigration and Border Protection[28] when applying the Federal Court’s judgement:

    Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should HSKJ be deported to Iraq. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.

    In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):

    An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.

    Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a Protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.

    In these circumstances, the Tribunal can only assess the often limited evidence before it in determining any risk of harm to HSKJ. This is arguably less than ideal given the possible negative consequences for an applicant in this context.

    [28] [2017] AATA 1802 at [88]-[91].

    The Applicant’s evidence

1. In his statutory declaration made 14 June 2018[29] the Applicant said this of the prospect of returning to Somalia:

   I left Somalia when I was young. I don’t know how to live there. There is nothing for me in Somalia. That country does not know me and my parents were killed there. I am afraid that if the Government sent me back to Somalia I would die or end up in the Kakuma Refugee Camp. I never want to go there again.

   [29] Exhibit A1at [34].

2. When he gave evidence, the Applicant expressed his fears at the prospect of being deported to Somalia:

   ·it was not safe when he lived there and he believes that the conditions are now worse;

   ·there are several terrorist groups operating in Somalia;

   ·the Government of Somalia is not stable;

   ·“they” will know that he is from a Western country;

   ·he has no family and no one  else to help him upon his return;

3. The Applicant provided the Tribunal with a Country Information Report of Somalia authored by the Department of Foreign Affairs and Trade and dated 13 June 2017.[30] 

   [30] Exhibit A3.

4. This report was prepared by the Department for protection status determination only.  It provides the Department’s best judgement and assessment at the time of writing. 

5. Although I do not have the evidence available to give detailed consideration to the Applicant’s protection status, the report does provide evidence which does assist me to determine the risk of harm to the Applicant should he return to Somalia.

6. The Report states, in part:

   ·after 25 years of conflict and political instability, Somalia’s economy is fragile;

   ·life expectancy in Somalia is 25 years;

   ·the country has one of the highest malnutrition rates in the world;

   ·formal unemployment is high -  the most recent rate quoted was 54%in 2012;

   ·the political, security and humanitarian situation remains unstable and complex – the Government’s capacity to provide basic services or respond to humanitarian or conflict-rerated disasters is low; and

   ·the security situation is highly volatile and security incidents and crime are a common feature of everyday life.

7. On the basis of the evidence I have referred to, I am satisfied that if the Applicant returns to Somalia there is a significant risk that he will suffer physical and/or mental harm as a result. I cannot be more precise than to find that such harm is likely to result from political unrest and/or the limited employment opportunities and health services likely to be available to him.

8. This consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

   Strength, nature and duration of ties to Australia

9. Clause 14.2 of the Direction provides:

   (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

   (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

10. The Applicant has lived in Australia since he was 14 years old.  Although he arrived as a young person, the significance of this factor is reduced by the fact that he started offending within four years of his arrival. In addition to the offences referred to earlier in these reasons, in November 2006 the Applicant was placed on an intensive youth supervision order by the Perth Children’s Court in respect of three charges.[31]

    [31] Exhibit R1 at 42.

11. The Applicant has worked in various occupations when he was not in prison or detention.[32] When working he did make a positive contribution to the Australian community by way of the services he provided and the tax he paid on his income. This contribution has been limited by reason of his drug and alcohol abuse and the time spent in prison and immigration detention. On the other hand, he has been a drain on the country’s resources during the time he has been held in prison.

    [32] Exhibit A1 at [32].

12. The Applicant has ties with his cousin, Ms I, and her family. I accept that these are strong ties.

13. On the basis of the Applicant’s evidence I am satisfied that he does not have significant ties with his brother, sister-in-law, and their family. He does not have contact with the family.

14. Non-revocation of the cancellation of the Applicant’s visa will have some effect on Ms I and her family. In her statutory declaration,[33] Ms I said that she and her family will be caused a lot of emotional stress in that circumstance.

    [33] Exhibit A2 made 16 June 2018.

15. Taking these various factors into account, I am not satisfied that this consideration weighs in favour of revoking the cancellation of the Applicant’s visa.

    Impact on Australian business interests

16. I am satisfied that a decision not to revoke the cancellation of the Applicant's visa will not have a relevant impact on Australian business interests.

    Impact on victims

17. I do not have sufficient evidence to assess the extent of the impact of the Applicant’s behaviour on the victims of his criminal conduct, other than that I am satisfied that the victims of his crimes variously suffered physical injury, emotional distress, and financial loss.

    Extent of impediments the Applicant may face if he is removed from Australia

18. As discussed in relation to the issue of possible non-refoulement obligations owed to the Applicant, he faces the risk of experiencing significant impediments in Somalia if he is removed from Australia. There can be no doubt that he will have a very different life in Somalia than in Australia. Tragically, this is the situation in which he has placed himself.

    PART G:  THE BALANCING EXERCISE

19. The nature and seriousness of the Applicant’s conduct and the seriousness of the harm which would be caused to members of the community should the Applicant re-offend are factors which weigh very heavily against the revocation of the decision to cancel his visa. The weight of these considerations is increased by the fact that I am satisfied that there is a significant risk of his repeating his criminal conduct.

20. I am satisfied that many of the offences committed by the Applicant were in part a result of his problems with drugs and alcohol. However, this does not excuse his criminal conduct.

21. The Applicant’s failure to heed the very clear warning given to him in 2016 weighs heavily against revoking the cancellation of his visa. This is particularly so in light of his assault of a public officer in 2017.

22. Even after giving due consideration to the very real difficulties the Applicant may face if he is returned to Somalia and the effect on his family in Australia, I conclude that there is no other reason why the cancellation of the Applicant’s visa should be revoked.

    PART H: CONCLUSION

23. The reviewable decision made 12 April 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s visa, will be affirmed.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of

................[sgd]........................................................

Associate

Dated: 6 July 2018

Date(s) of hearing:	25 June 2018
Advocate for the Applicant:	Ms B Mannix, Asylum Seeker Resource Centre
Solicitors for the Respondent:	Mr A Gerrard, Australian Government Solicitor