NFLL and Department of Home Affairs (Migration)
[2019] AATA 85
•5 February 2019
NFLL and Department of Home Affairs (Migration) [2019] AATA 85 (5 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6766
Re:NFLL
APPLICANT
AndDepartment of Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:5 February 2019
Place:Sydney
The Reviewable Decision made on 13 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
.........................[sgd]...........................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – BB subclass 155 Five Year Resident Return visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – criminal convictions – reckless grievous bodily harm – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed – decision set aside.
LEGISLATION
Child and Young Persons (Care and Protection) Act 1998 (NSW)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
Briginshaw v Briginshaw (1938) 60 CLR 336
CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
G v Minister for Immigration and Border Protection (2018) FCA 1229
Greene v Assistant Minister for Home Affairs [2018] FCA 919
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197
MNLR v Minister for Home Affairs [2019] AATA 61
Murphy and Minister for Immigration and Border Protection [2018] AATA 750
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13
Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs [1991] 24 ALD 531
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 33
R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] 50 CLR 228
Shi and Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Williams v Minister for Immigration and Border Protection [2014] FCA 674
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Cicero, Pro Roscius Amerino 32.3
Department of Foreign Affairs and Trade (DFAT) Country Information Report: Iraq (9 October 2018)
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, Washington, DC. 2013)
Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworth, Australian 2015)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
5 February 2019
The matter before the Tribunal is an appeal by the Applicant for the review of a decision made by a Delegate of the Minister not to revoke the automatic cancellation of the Applicant’s visa.
The non-revocation decision was made on 13 November 2018.
CHRONOLOGY OF EVENTS
The Applicant arrived in Australia on 11 October 2008 as the holder of a Subclass 202 visa (global special humanitarian). She made a brief trip back to Syria in January/February 2009 and since that time has remained in Australia. On 7 October 2014 she was granted a class BB subclass 155 Five Year Resident Return visa.
On 20 May 2016 the Applicant was convicted in the NSW District Court of “reckless grievous bodily harm (dv)” and given a sentence of 3 years imprisonment with a non-parole period of 18 months.
A sentence of imprisonment of more than 12 months triggers the provisions of s.501(3A) of the Migration Act 1958 (the Act) resulting in the automatic and mandatory cancellation of a visa. A decision to this effect was made on 31 May 2017.
The Applicant was notified of this cancellation and on 15 June 2017 she sought to have that mandatory cancellation decision reviewed. A Delegate of the Minister considered this request and on 13 November 2018 decided not to revoke the cancellation.
It is from that decision that the Applicant seeks to appeal, having lodged such a request with this Tribunal on 20 November 2018.
MATERIAL BEFORE THE TRIBUNAL
As is required under s 501 of the Act, the Respondent provided material in the form of the “G Documents”. This material was taken into evidence. In addition the Respondent provided some further material (totalling 247 pages) produced under summons, referred to as the “Tender Bundle.” The Applicant raised a number of objections to some of this material, on the basis that the material was either irrelevant or prejudicial. The Applicant argued that the admission of this evidence would be “unfair” to the Applicant because it was not possible for the authors of the material to be cross-examined.
The Applicant drew the attention of the Tribunal to various comments by the Federal Court in Sullivan v Civil Aviation Safety Authority[1] in which the court discussed the status of material which was not subject to cross-examination and the weight which should be accorded to it by the Tribunal. Although the Court ruled that such material was admissible and that the Briginshaw[2] rule did not apply to the Tribunal’s proceedings,[3] it nevertheless made it clear that the rules of evidence could not be “ignored as of no account”[4], although the Tribunal “is entitled to have regard to evidence which is logically probative whether it is legally admissible or not.”[5]
[1] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93.
[2] Briginshaw v Briginshaw (1938) 60 CLR 336.
[3] Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [115].
[4] R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] 50 CLR 228 at [256].
[5] Re Pochi and Minister for Immigration and Ethnic Affairs [1979] 2 ALD 33 at [42].
In addition the Applicant drew the attention of the Tribunal to remarks of Senior Member Taylor SC during proceedings in Murphy v Minister for Immigration and Border Protection to the effect that the Tribunal should not be expected to receive large amounts of information without the provider of that information giving specific guidance to the parts of that material upon which it sought to reply in its pleadings.[6]
[6] Transcript of Proceedings, Murphy and Minister for Immigration and Border Protection, No. 0054 of 2018, Sydney Registry, 13 March 2018 at page [17] and 14 March 2018 at [98].
In the course of final submissions, the Respondent made it clear that there were certain documents in the Tender Bundle upon which it did not seek to rely and the Tribunal took note of some of the continuing objections of the Applicant to material which remained.
The path followed by the Tribunal was that it did not rely, in its deliberations, upon any material in the Tender Bundle unless the matter in question had been subject to examination or cross-examination in the proceedings or they constituted simple statements of fact to which the Applicant did not object.
THE APPLICANTS PERSONAL HISTORY: MAY 1983 TO AUGUST 2013.
The Applicant was born in Iraq in 1983.
It appears that her mother died when the Applicant was around 13 years of age and that her father married again shortly thereafter. Apparently the Applicant’s relationship with her step-mother was not a happy one.[7] According to Dr Samir Benjamin, the Applicant reported that she was not doing well academically and had difficulties associating with other children and, as a result she failed to complete her schooling in Iraq. She also reported that she was mistreated by her step mother.[8] In this respect she told Dr Watson-Munro that after the death of her mother, “I never experienced any happy moments.”[9] During this period it also appears that she suffered some form of physical injury resulting in lower back problems which remained untreated.[10] She has never worked in paid employment.
[7] Applicant’s evidence: Psychological Assessment report by Mrs Pearl Fernandes (Clinical Psychologist) NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) dated 12 December 2018 at page [8]. (Hereafter “Fernandes Report”).
[8] Applicant’s evidence: Psychological Assessment report by Dr Samir Benjamin (Consultant Psychiatrist) dated 1 October 2015 at page 2 (hereafter “Benjamin Report”).
[9] Applicant’s evidence: Psychological Assessment report by Dr Tim Watson-Munro (Consultant Psychologist) dated 15 January 2019 at page 3 (hereafter “Watson-Munro Report”).
[10] Fernandes Report at page 8.
She and her family are members of the Sabean Mandaean[11] religious community (see below), as a result of which they were subject to persecution in Iraq and fled to Syria. It was from there that the family were granted the subclass 202 (global special humanitarian) visa and the whole family (the Applicant, her parents and siblings) arrived in Australia together in October 2008.
[11] A form of Gnostic Christianity paying special reverence to the position and teachings of John the Baptist.
The Tribunal notes that it is a criterion for the grant of a subclass 202 visa that the applicant must have been subjected to “substantial discrimination, amounting to gross violation of human rights in the applicant’s home country and is living in a country other than the applicant’s home country”.[12] The Tribunal understands that the principal applicants (they being the people who qualified for the visa) were the Applicant’s parents and that the whole family were granted visas on the basis of this principal application.
[12] Migration Regulations 1994, Schedule 2, clause 202.211 (1)(a).
The principal purpose of her brief departure from Australia (10 January – 11 February 2009) was to return to Syria where, on 12 January 2009 she married her husband, that marriage having been arranged by her father[13] and she not having previously met her future husband other than via the internet.[14] Her husband was an Iraqi, a coreligionist and a member of the same tribe as the Applicant.
[13] Section 501 G Documents at [136], report of Carlos Camacho (Psychologist) dated 7 September 2017 at page 2.
[14] Fernandes report at page 9.
There is some discrepancy in material before the Tribunal in relation to the initial character of this marriage. Mrs Fernandes, in her report states: “She (the Applicant) mentioned being terrified of marrying a man she had not met in person”. [15] Dr Watson-Munro reports that the couple met “approximately three months after she arrived in Australia. She stated that they connected via the internet” and that they found common ground in being of Iraqi descent and of the same religion. He goes on to say that “Upon receiving her father’s blessing, they were married in Syria on 12 January 2009.”[16]
[15] Idem.
[16] Watson-Munro Report at page 4.
The Applicant then sponsored her husband’s visa application and he arrived in Australia some nine months later.
In any event it appears that the marriage was “an unhappy one”[17] and that her husband was generally unsupportive.[18] The Applicant told the Police in an interview that “my husband bashed me”[19] and she told Mrs Fernandes that for about a year her marriage was “Ok” but that over time “My husband became naughty and started to gamble and bash me up”.[20]
[17] Idem.
[18] Tender Bundle at [107].
[19] Tender Bundle at [98].
[20] Fernandes report at page 9.
It is certainly apparent, and to a degree admitted by her husband in oral evidence, that he provided little or no support to his wife during a very difficult period of her life and that he has problems of his own which made this situation worse.[21] He also admitted to being physically violent towards her.
[21] Section 501 G Documents at [140], report of Carlos Camacho (Psychologist) dated 7 September 2017 at page 6; Statutory Declaration of the Applicant’s husband dated 21 October 2017 at Section 501 G Documents [105]-[106].
In December 2010 her son was born and in April 2013 her daughter was born.[22]
[22] Consistent with the provisions of NSW law the minor children will not be identified by name but referred to throughout as “the son” and “the daughter”. Children and Young Persons (Care and Protection) Act 1998 (NSW), s 105. Also Children (Criminal Proceedings Act) 1987 (NSW) s. 15A.
It is relevant to note that the daughter was born from a very difficult pregnancy and was underweight[23] at time of birth and born with a congenital heart condition.[24] The child had difficulties either breast or bottle feeding and failed to put on weight.
[23] Mrs Fernandez (Clinical psychologist) states the birth weight at 1.5 kilograms based on report to her by the Applicant (Applicant’s evidence, Fernandes Report at page [9]); whereas the report of Dr Marks, Child Protection Unit, The Children’s Hospital (dated 15 September 2015) gives the birth weight as 2.8 kilograms, Tender Bundle at [134].
[24] Tender Bundle at [38] report of Dr Aver, paediatric cardiologist at The Children’s Hospital. Tender Bundle at [134] report of Dr Marks, Child Protection Unit, The Children’s Hospital.
It is also apparent, both from the statements of the Applicant,[25] and (to a certain extent) from statements by her father (in oral evidence) and siblings that the Applicant received very little support from members of her own extensive family while she was facing major problems coping with the birth of her daughter and the unsatisfactory nature of her marriage.[26]
[25] The Applicant reported to Mrs Fernandes: “I had no one … no father …no family to support me”. Fernandes report at page 9.
[26] Section 501 G Document; Statutory Declarations at [109], [116], [119], [122] and [113]. The statements from the siblings are all of the same date (17 October 2017) and are in identical form. The Tribunal places little weight upon them other than to the extent that they reveal a general pattern of non-support for the Applicant at the time leading up to her offence.
The family were living in accommodation provided by the NSW Department of Housing when, on 6 August 2013, that premises was severely damaged by fire. There is some discrepancy in material before the Tribunal as to the date of the fire. The Police Report gives the date as 6 August 2013[27] whereas the Applicant states that it was 11 August 2013.[28] It is clear from other evidence that the fire occurred on 6 August 2013. It appears that the fire was started by a lighted candle being left burning and that candles were being used because the electricity to the premises had been disconnected due to unpaid utility bills. It also appears that the Applicant suffered from smoke inhalation and was hospitalised for two days, in what she claimed was an unconscious state.[29] Whether or not the Applicant was unconscious throughout this period was disputed by the Respondent. The relevant police report notes that the Applicant was conveyed to Liverpool hospital “declared critical and was incubated”. Again the evidence suggests that while the Applicant was hospitalised for several days she was not actually in an unconscious state.
[27] Tender Bundle at [21].
[28] Section 501 G Documents at [100].
[29] Tender Bundle at [97] being part of a record of Police Interview on 21 May 2015.
THE EVENTS OF 24 TO 27 SEPTEMBER 2013
On 24 September 2013 the Applicant had two appointments to attend, one at the Children’s Hospital at Westmead for a follow-up appointment for her daughter and the other with the Department of Housing at Liverpool to make enquiries about support for new accommodation following the fire at her previous residence. In addition to these appointments she had to take her son to his child care centre. Finally she was planning to go to a real estate agent to follow up on arrangements for alternative accommodation.
In an interview with the Police on 21 May 2015 she said that she had sought assistance from her husband to manage all these arrangements on the one day but that he refused and he was rude to her. They had a (non-physical) fight and she left to undertake these tasks on her own.[30] There was also shopping to be done.
[30] Tender Bundle at [99].
She completed all these appointments and picked up her son from child care arriving home at approximately 5.00pm.[31]
[31] Section 501 G Documents at [100]-[104] Statutory Declaration by Applicant dated 21 February 2018.
At some stage in the evening she changed her daughter’s nappy. Her account of what occurred at this stage is as follows. In her Statutory Declaration:
“This was a very exhausting day, where I felt so lone and sinking, feeling helpless, lone and depressed in the situation I did not know how to deal. My daughter would not stop crying all day and I just did not know how to deal with her after such a long day. I must have squeezed her leg without knowing, as I don’t remember even dong it. Although I must have and know that I did.”[32]
[32] Ibid at [101].
Similarly in her account to the Police:
“I took (daughter) and I gave her a shower. She was screaming and I didn’t know how to stop her from screaming. She was crying all the time and that wasn’t deliberate of course. I was exhausted and did not have anybody to help me at home. Nobody to give me advice and I gave her, I gave the girl a shower as she was screaming a lot. I was going to fix her nappies. I did not do that thing deliberately. I admit that I was tired, I was nervous. Maybe I put some pressure in the girl as I was changing her. I didn’t know how to keep her quiet.”[33]
[33] Tender Bundle at [99].
What actually transpired was, that in the process of changing her daughter’s nappy, the Applicant fractured the child’s leg.
She must have realised that something of this nature had occurred because when her husband returned at 11:00 pm that she told him that whatever was distressing the daughter arising from the pain in her leg was as a result of her son jumping on her. She admits that this was a lie.[34]
[34] Idem.
It was not until approximately 11:00 am the following morning (25 September) that the Applicant took her daughter to her local General Practitioner where, after an examination an x-ray was ordered. This confirmed that the child had a fractured leg.
In Sentencing Remarks (see below) the Judge noted that:
“The GP thought the offender was going immediately to the children’s hospital. However she did not do so. Rather she gave priority to attending an appointment with the Department of Housing at 1.00 pm.”[35]
[35] Section 501 G Documents at [38]-[39].
There can be no denial that the Applicant’s clear responsibility was to take her child immediately to the Children’s Hospital and the Court took a significantly adverse view of the fact that she did not. In any event the interview at the Department of Housing turned out to be another traumatic event with the child (understandably) screaming throughout and, according to the Applicant, the Department not letting her leave until arrangements for alternative housing had been completed.[36] She did not leave there until approximately 3.00 pm.
[36] Tender Bundle at [100].
Again reports diverge. The Sentencing Judge remarked that the Applicant waited until her husband returned from work before they took the child to the hospital.[37] The Applicant told the Police she went from the Department of Housing to her husband’s place of work, they collected their son from child care and then went to the hospital.[38]
[37] Section 501 G Documents at [39].
[38] Tender Bundle at [100].
In any event the child was brought to the Children’s Hospital at approximately 4:00 pm on 25 September 2013 by which time she had been suffering the trauma of a fractured leg for something in the order of 20 hours or more.
Following prescribed procedures the Hospital notified the relevant child protection authorities and the daughter was taken into care on 27 September 2013 while still at the hospital. The son was also subsequently taken into care by the NSW Department of Family and Community Services. Both children remain currently under the control of the Minister for Family and Community Services and have been placed together in foster care.[39]
[39] Oral evidence of Ms Giuseppina Pin, caseworker FACS.
ANALYSIS OF INJURIES
The immediate injury to the daughter was an oblique fracture of the distal shaft of the right femur. The Sentencing Judge remarked that “A considerable amount of force would have been required to break that bone in that manner.”[40]
[40] Section 501 G Documents at [38].
On examination at the Hospital it was found that the child had sustained numerous other similar injuries. There was a recent fracture in the left tibia and evidence of older fractures of her distal right ulnar and distal right tibia.[41]
[41] Tender Bundle at [136]-[137].
In his sentencing remarks the trial Judge stated that he was “satisfied beyond reasonable doubt that all of these injuries were caused by this offender to that child.”[42]
[42] Section 501 G Documents at [39].
In submissions to the Tribunal, made via her counsel, the Applicant maintained that she had no knowledge of these prior fractures and denied that she had inflicted them. Further, counsel advanced the proposition that it is not possible, from the sentencing remarks themselves, to know what evidence the trial judge replied upon in coming to this conclusion, particularly as His Honour himself made clear that “the facts surrounding the offence are not comprehensively contained in the agreed statement of facts”[43], but needed to be supplemented by other material in exhibits before the court.
[43] Ibid at [37].
At all relevant times the Applicant was, in effect, the sole carer for the child who was never, it appears left in the sole care of her father. In any event the father did not exhibit any evidence of playing either a caring or supportive role in the child’s welfare.
THE APPLICANT BEFORE THE COURT
On 21 May 2015 the Applicant was interviewed by the NSW Police and then arrested and charged with the offence of recklessly inflicting grievous bodily harm pursuant to the Crimes Act 1900 (NSW) s. 35(2).
The matter came before the District Court on 20 May 2016. The Applicant pleaded guilty and was sentenced to a term of imprisonment of three years with a non-parole period of 18 months expiring on 19 November 2017.[44] In passing sentence His Honour was highly critical of the Applicant on a number of counts, including her failure to give testimony in person and her perceived lack of contrition or remorse.
[44] Section 501 G Documents at [45].
‘GOING BEHIND’ THE FINDINGS OF THE COURT
In her primary submission to the Tribunal, through her Counsel, the Applicant has raised a number of issues arising from the comments made by the Sentencing Judge on that occasion.
This Tribunal has neither power nor authority to call into question any verdict rendered by the Courts. In response to the Applicant’s canvassing of some of the issues before the trial judge, the Respondent drew the attention of the Tribunal to the decision of the full Federal Court in Minister for Immigration and Multicultural Affairs v “SRT”[45] decided in 1999. In particular the Respondent noted the courts comment that:
“But where the decision to be reached depends on there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which could impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentenced is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.”[46]
[45] Minister for Immigration and Multicultural Affairs v “SRT” [1999] FCA 1197.
[46] Ibid at [244].
It is however a matter for the Tribunal to determine the weight which it gives to any of those findings.[47]
[47] Ibid at [38].
Previously, in Daniele, the Federal Court had stated:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.
We agree that the Tribunal is bound to accept the fact of the conviction as the source of jurisdiction and as a stigma affecting the applicant's standing and credit in the community. However, we cannot accept that the Tribunal is not entitled to examine for itself all facts including those necessarily found by the jury.[48]
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the applicant; but not for the purpose of assessing the propriety of the conviction.[49]
[48]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ.
[49] Ibid at [654].
The Respondent drew attention to a case decided some 19 years later by Bromberg J who undertook a comprehensive review of the authorities touching on the question of the extent to which this Tribunal could call into question the essential findings and the sentence of the original court upon whose verdict the Minister might seek to rely in proceedings for deportation. After a review of all the authorities, including SRT and Daniele, the Court concluded:
“Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.”[50]
[50] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78].
The Tribunal has confined itself, in deliberations in this matter, within the bounds as outlined by Bromberg J above.
Professor Dennis Pearce, in his authoritative text on the Tribunal, published in 2015, notes:
So on an application to review a deportation order based on criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify evidence given at the trial.[51]
[51] Pearce D, Administrative Appeals Tribunal (4th ed, LexisNexis Butterworth, Australian 2015) page 138 citing Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs [1991] 24 ALD 531.
From the Tribunal’s point of view the following matters have been taken into consideration relating to issues raised in the remarks of the Sentencing Judge:
1)There are numerous statements from the Applicant, both to the Police and to medical professionals attesting to the unsupportive and occasionally abusive nature of her marital relationship and the Tribunal accepts that, at the time, the state of the marriage was less than satisfactory and the Applicant was not receiving significant support and assistance from her husband, especially in the management of their children;
2)Her failure to give evidence at her trial may well have been occasioned by what she took to be the advice of her then legal representative;[52]
3)The psychiatric report and accompanying diagnosis provided by Dr Benjamin which was before the Court is contested by later psychiatric reports[53] and the Applicant herself indicated a degree of discomfort with Dr Benjamin including issues arising from the fact that they spoke in two different Arabic dialects;[54]
4)The Applicant clearly admitted her previous lies about the 24 September injury to her child when interviewed by the Police on 21 May 2015,[55] she did not persist in her initial denials.
[52] Section 501 G Documents at [102].
[53] Watson-Munro Report at page 8.
[54] Section 501 G Documents at [102].
[55] Tender Bundle at [99]-[100].
Questions related to the Applicant’s prospects of rehabilitation and the aetiology of her offending behaviour are to be considered in the light of evidence before this Tribunal at the date of hearing,[56] recognising that such evidence was not before the Court at the time of sentencing nor before the original decision-maker.[57]
[56] Shi and Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J
[57] Section 501 G Documents at [19]-[29].
THE LEGISLATIVE FRAMEWORK
Before proceeding to consideration of the evidence it is necessary to outline in some detail the relevant legislative provisions and requirements as set out in the Act.
Section 501(3A) of the Act provides that the Minister must cancel a persons’ visa in the following circumstances:
(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...; 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 visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 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;
It can thus be seen clearly in relation to the Applicant, that the cancellation of her visa was an automatic process: she was serving a sentence of imprisonment and further, she cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
1 This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
2For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
3As 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.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
4The 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.
5If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[58] This is the reviewable decision.
[58] Section 501 G Documents [18] – [30].
In coming to their decision, the Delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
Where a decision has been made by a delegate of the Minister under s 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under s 500(1)(ba) of the Act. The Applicant lodged her application for review with the Tribunal on 20 November 2018.[59]
[59] Section 501 G Documents [1].
The application was heard by this Tribunal on 25 and 29 January 2019. Under the requirements of s 500(6L)(c) of the Act, the Tribunal must determine the matter within 84 days of the date upon which the Applicant was notified of the reviewable decision. In this case, the matter must be determined on or before 5 February 2019. In the absence of a decision by that date the reviewable decision would be deemed to have been affirmed.
Before turning to a consideration of the matters which the Tribunal must address under the requirements of Ministerial Direction 65 there are matters put in evidence to the Tribunal which should be assessed.
EVIDENCE: APPLICANT AND FAMILY MEMBERS BEFORE THE TRIBUNAL
The Applicant (assisted by an interpreter familiar with her particular Iraqi dialect) gave extensive evidence under cross-examination based upon her formal statements submitted to the Tribunal.
She confirmed all the matters of fact as set out in the Tribunal’s sections headed
· (The Applicant’s) personal history: May 1983 to August 2013 and
· The events of 24 to 27 September 2013.
Importantly, what emerged from her testimony were the following crucial matters:
1)While she admitted harming her daughter on 24 September she claims no recollection of how this actually came about and denies that there was anything deliberate or cruel about her behaviour;
2)She denies ever previously having harmed her daughter and does not admit to doing anything which would have caused her previous injuries saying that she has no idea how they came about;
3)He initial relationship with her husband immediately after their marriage had been good but had deteriorated when he started gambling and later when he was physically violent towards her;
4)Her pregnancy had been particularly difficult (with severe hyperemesis) and she had no knowledge of how to manage her daughter’s compromised health and development conditions and found it especially difficult to cope with the child’s constant crying;
5)She felt alone and abandoned and did not receive any help from her husband or members of her family to cope with her increasing inability to manage her daily affairs and the welfare of her daughter;
6)She had lied to her husband on the evening of 24 September about how her daughter came to be injured and admitted these lies to the police when they interviewed her in May 2015;
7)She struggled in managing arrangements with the Department of Housing about seeking relocation to suitable permanent accommodation after the fire at her initial residence;
8)She admitted that she had given priority to attending her appointment with the Department of Housing on 25 September 2013 and had failed to take her daughter to the hospital immediately after receiving the results of the x-ray and the confirmation of the fracture from her general practitioner;
9)She admitted that her two days in hospital after the fire may not have been in a state of unconsciousness but that nevertheless she was unable to do anything about providing care for her children during that time.
The Applicant went on to say that several things had now turned around in her life, namely that her husband had stopped gambling and had come to a realisation that he had failed as a parent/husband and was now being supportive and responsible in his behaviour. There had been no further incidents of domestic violence. Additionally, she had now been offered support and assistance from her own family members and she had sought assistance from other members of the Mandean community.
While she made clear how sorry she was for the injuries suffered by her daughter and that she vowed that such things would never occur again, the Tribunal cannot but find that she still lacks essential insight into what actually happened and what her personal level of both responsibility and culpability for those events was.
She gave testimony about her current relationship with her son and daughter both of whom are in foster care. She engages in regular (monthly) supervised visits and indicates that these are of crucial importance to her in maintaining some relationship with her children who, she hopes, will one day be returned to her care.
The Applicant’s husband gave evidence supplementing his written statement. He was a singularly unimpressive witness. His initial evidence that he could not remember anything about the events of the night of 24 September 2013 was frankly utterly implausible. When pressed by the Respondent it gradually emerged that he had some recollections but he was vague and evasive about most issues.
He did admit that he had, on occasions, been physically violent towards his wife and that he had failed to take any degree of responsibility for either the management of their family affairs or the care and upbringing of their children.
He made a statement to the Tribunal that he had come to realise these faults and failings and was determined to reform his behaviour and attitude; he had ceased gambling and undertaken a rehabilitation programme; that he loved his wife and children and wanted them to be reunited.
The Applicant’s father gave evidence, again supplementing his written submission. His evidence was, in some respects, contrary to that of his daughter’s in that he stated that he had been aware that she was having domestic difficulties and he had offered to assist her. However, he reported that she had said that she did not want outside “interference with her family” and these offers had not been taken up. He agreed that he had taken the lead in arranging her marriage and had accompanied her back to Damascus for the wedding. He characterised the marriage as “successful.”
A MATTER OF FAMILY HEALTH
Both the Applicant and her husband[60] put to the Tribunal that some form of osteoporosis, or at least bone weakness/density was hereditary in their family (or tribe.) Both claimed that they only became aware of this by somehow being advised of the possibility after their daughter’s initial screening at Westmead Children’s Hospital.
[60] Tender Bundle at [46] and [53].
On the other hand the Applicant’s father, when asked directly about this, denied that there was any such condition known in the family.
There are some rather conflicting reports from medical sources on this issue. Associate Professor Craig Munns (a Paediatric Endocrinologist – Bone and Mineral Medicine) writes:
“From the radiographs taken in September 2013 and my examination of (the daughter) in October 2013, I could find no evidence of bone fragility. However, given the history of maternal hyperemesis during pregnancy, mild IUGR, failure to thrive and sepsis, it may be that there was an element of mild bone fragility present, which may have reduced bone strength in the first few months of life.”[61]
[61] Tender Bundle at [43].
Reference to this possibility is included in the report of Dr Susan Marks (to which the Applicant objected).[62]
[62] Ibid at [154-155].
On the other hand there are numerous references in other reports to there being no evidence of any form of osteoporosis or any other structural bone weakness or density in relation to the daughter.[63]
[63] Ibid at [42] – Dr Munns; at [141]-[142] – Dr Marks (objected to by Applicant).
It will be appreciated that this is a matter of some significance but only to the degree that, if such bone weakness were to have been found in the daughter, some of her injuries may have been exacerbated by this weakness. However, while it is claimed by the parents, it seems to the Tribunal from the evidence of the specialist, the Children’s Hospital and the Applicant’s father that a safer course for the Tribunal is not to accept any such claims.
EVIDENCE: PSYCHOLOGISTS – REPORTS AND BEFORE THE TRIBUNAL
Dr Samir Benjamin
Before turning to consider the evidence of the two psychologists called to give evidence at the Tribunal it is necessary to take note of a report prepared in relation to the Applicant which was placed before the court in May 2016. The report was prepared by Dr Samir Benjamin, a consultant psychologist and is dated 1 October 2015. Dr Benjamin had before him, in the preparation of his report a number of documents not available to the Tribunal and so it is uncertain as to what extent he may have relied upon any of them. Dr Benjamin saw the Applicant on seven occasions in his practice at Parramatta. The relevant diagnostic parts of Dr Benjamin’s report are as follows:
“(4) When she first attended on 2 March 2015, (the Applicant) was appropriately dressed and groomed. Her affect was reactive and appropriate. She was guarded, evasive and not forthcoming. Her history was internally inconsistent and she gave conflicting answers when she was asked the same questions twice. She tried to minimise the harmful impact of her behaviour on her children. There was no suggestion of Psychotic or Obsessive Phenomena. She particularly denied auditory hallucinations or delusional thinking. Her cognitive functions were clinically unremarkable. She denied thoughts if self-harm.
(1) (The Applicant’s) presentation is consistent with the diagnosis of Personality Disorder, (mainly Narcissistic and Antisocial Traits.)”
In addition Dr Benjamin’s report includes the following (at paragraph 3(c)):
“(The Applicant) spoke of another incident in which her five month old daughter suffered a broken femur…said that she initially informed the medical staff at the hospital that her two year old son fell backward and landed on his sister causing her bone to break. She subsequently changed her account of events and she admitted that she had handled her daughter roughly while she was changing her nappy on 24 September 2013, which resulted in her breaking her femur.”
Further, (at paragraph 6(b)):
“(The Applicant) made her second appointment and she attended on 21 April 2015. On that occasion, she admitted that she broke her daughter’s leg by handling her in a rough manner because she was screaming and she wouldn’t settle down.”
Dr Benjamin’s prognosis (at paragraph 7) was:
“(The Applicants) psychiatric condition, Personality Disorder, is an enduring and pervasive condition, which is likely to persist for the long-term. Psychotropic medicines are unhelpful in modifying or improving this condition, but can be used if the individual becomes symptomatic with additional conditions such as Major Depression or Psychotic Disorder. Long term psychotherapy can help reducing the extent of the symptoms and the impact of the condition on interpersonal interactions.”
As has already been noted above the Applicant did not react well to Dr Benjamin and specifically reported having language problems with him based upon their speaking different dialects of (Iraqi) Arabic.[64] Nevertheless Dr Benjamin’s report appears to have carried significant weight with the sentencing judge, although His Honour observed:
“The subjective material on behalf of the offender was advanced mainly through the psychiatrist’s report. The offender herself did not give sworn evidence. The history given in that report must be approached with caution: first because of her continued misrepresentation to the psychiatrist about the cause of the child’s injury, and, secondly because of her account of her marriage being an unhappy one – and indeed an abusive one – is inconsistent with other descriptions of the marriage which the offender has given in the material tendered in the Crown case. The contradictions were not explained by the offender in the witness box.”[65]
[64] Section 501 G Documents at [102]. Sabean Mandeans generally speak a dialect of Eastern Aramaic known as Mandaic.
[65] Section 501 G Documents at [41].
In its considerations of Dr Benjamin’s report the Tribunal has noted that while he states that the Applicant gave him a false story in their first meeting of 2 March 2015 (paragraph 3(c)) in their second meeting of 21 April 2015 she gave him the true story (paragraph 6(b)). He then details their subsequent meetings of 3 June, 22 June, 20 July, 25 August and 1 October 2015 without a single further reference to any misrepresentations about the cause of her daughter’s injuries (paragraph 6(c) to (g)). It is this evidence that the Tribunal regards as correctly informing its own considerations.
Mrs Pearl Fernandes[66]
[66] Mrs Fernandes report of 17 pages is attached to the Applicant’s Statement of Facts, Issues and Contentions.
Mrs Fernandes is a clinical psychologist who works with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS). It describes itself as follows:
STARTTS is the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors. STARTTS is a specialist, non-profit organisation that for 30 years has provided culturally relevant psychological treatment and support, and community interventions, to help people and communities heal the scars of torture and refugee trauma and rebuild their lives in Australia. STARTTS also fosters a positive recovery environment through the provision of training to services, advocacy and policy work.[67]
[67] >
Mrs. Fernandes assessed the Applicant at an interview lasting approximately 100 minutes conducted at the Villawood Detention Centre on 12 December 2018. Her report is dated 17 December 2018. Her report was prepared for the International Health and Medical Services organisation which is the responsible for the provision of health care services in the Villawood Detention Centre. She gave oral evidence to the Tribunal based upon that Report.
In preparing her Report she had access to a number of documents including the remarks of the Sentencing Judge and the report of Dr Benjamin. She also had access to the psychological report prepared by Carlos Camacho (see below). Although her formal reports states: “I have read the following documents prior to writing this report” she said in evidence that she had not necessarily read them prior to interviewing the Applicant.
Mrs Fernandes came to the conclusion that the Applicant “suffered from Post Natal Depression following the birth of the daughter.” She further reported the Applicant’s feelings of having no support from her husband (who she reported as having “bash(ed) me up” or other family members.
Relevantly Mrs Fernandes reported the following:
·The Applicant stating: “My daughter’s birth changed my life. She was not eating or drinking … only vomiting. I did not understand my daughter. I had no one … no father … no family to support me.”
·“(The Applicant) revealed that she was desperately trying to care for her daughter and may have “accidentally broken my daughter’s leg when changing her … how I did that ?”.”
·“She (the Applicant) was later informed that her daughter had sustained a fracture to her right femur. (The Applicant) was unable to outline the exact sequence of events that occurred related to this incident….”
·“(The Applicant) presented as helpless and was reluctant to think about her past traumatic experiences, saying, “I was not happy in Iraq and do not like to think about my country”. She found it impossible to think about the possibility of a forced repatriation or the rejection of her appeal to remain with her children.”
Mrs. Fernandes comes to the conclusion that:
“(The Applicant’s) presentation in the context of multiple traumatic experiences since her early years, is suggestive of a complex form of PTSD (CPTSD). The symptoms and etiologies of CPTSD and personality disorder often overlap and are similar. Hence they could often be misdiagnosed and/or mistaken for one another. However consistent with her reported background and multiple traumatic experiences, (The Applicant) reported and presented symptoms characteristic of a more complex form of Post-traumatic Stress Disorder (PTSD) Depression and Anxiety.”
In response to questions from the Respondent, Mrs. Fernandes agreed that it was possible that the Applicant could be suffering both from the CPTSD which she diagnosed as well as the personality disorder identified by Dr Benjamin.
Mr Tim Watson- Munro[68]
[68] Mr Watson-Munro’s report of 10 pages (plus CV) is attached to the Applicant’s Statement of Facts, Issues and Contentions.
Mr Watson- Munro is an experienced consultant psychologist who records in excess of 40 years clinical experience dealing with several thousand cases, including multiple cases of the diagnosis and management of highly disturbed and serious offenders.
Mr Watson-Munro prepared his report on behalf of the Applicant’s legal advisors. It is dated 15 January 2019. He examined the Applicant on 18 December 2018 and also had a discussion with the Applicant’s husband, from whom he obtained some details of their family history. Relevantly, among other material he had access to the remarks of the Sentencing Judge, the reports of Dr Benjamin and Carlos Camacho and a series of statements from the Applicant and her husband which were also before the Tribunal.
Mr Watson-Munro expresses direct and forthright disagreement with the diagnosis of personality disorder made by Dr Benjamin. Relying upon advice from the Applicant’s husband about the Applicant’s regular taking of her daughter to the “Westmead Hospital” because of her persistent crying and being unwell, he concludes that: “In passing, this if anything reflects a deep concern for the child, which is contrary to the general behaviour of individuals with a Narcissistic Personality Disorder.” Mr Watson-Munro goes on to report that at the time of his assessment “there was no indication of (the Applicant) suffering a personality disorder.” He reinforces this conclusion by reference to the Applicant not making any use of drugs or alcohol which he states are frequently associated with personality disorders.
He supports Mrs Fernandes’ finding that the Applicant developed symptoms of Post-Traumatic Stress Disorder “as a consequence of a fire in the family’s apartment, with her then discharging herself from hospital after two days, contrary to medical advice.”
In reply to matters put to him in cross-examination by the Respondent he further noted that had the Applicant been suffering from some form of personality disorder it would have been manifest at the time of her son’s birth because it would have been a life-long condition. He did however agree that the Applicant’s “coping capacity” was very limited.
Mr Carlos Camacho[69]
[69] Section 501 G Documents at [135]-[141].
Mr Camacho was not called to give evidence but a report which he had prepared on the Applicant was tendered as part of the documentation prepared by the Respondent. His report was before both Mrs Fernandes and Mr Watson-Munro at the time they made their assessments.
Mr Camacho is a psychologist who interviewed the Applicant while she was in detention at the Cessnock Correctional Centre and is dated 7 September 2017. It is unclear who may have commissioned the report or whether it was a routine one, although Mr Camacho acknowledges that he is aware of the Code of Conduct for Expert Witnesses contained in the District Court Rules.
His report contains no suggestion that the Applicant suffers from any personality disorder although he is clear in diagnosing both PTSD, mild depression and anxiety. He reports her (then) current psychological health as “stable” and her behaviour as appropriate.
A VARIETY OF DIAGNOSES
The Diagnostic and Statistical Manual of Mental Disorders[70] (Fifth Edition – DSM V) provides definitions of both narcissistic personality disorder and Post-traumatic Stress Disorder. In relation to narcissistic personality disorder the DSM-V makes clear that this is
“a pervasive pattern of grandiosity (in fantasy or behaviour), need for admiration and lack of empathy beginning by early adulthood” and characterised by elements such as “a grandiose sense of self-importance”, preoccupation with fantasies of unlimited success, power, brilliance, beauty, or ideal love”; “believes that he or she is ‘special’ or unique”; “requires excessive admiration” and “has a sense of entitlement.”[71]
[70] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (American Psychiatric Association, Washington, DC., 2013)
[71] Ibid Diagnostic Criteria: Narcissistic Personality Disorder, 301.81 at page [669].
In relation to PTSD the DSM-V notes a number of diagnostic criteria which include “persistent avoidance of stimuli associated with traumatic events (including) avoidance of or effort’s to avoid distressing memories, thoughts or feelings associated with the traumatic event(s)” and “irritable behaviour and angry outbursts (with little or no provocation) typically expressed as verbal of physical aggression toward people or objects.”[72]
[72] Ibid Diagnostic Criteria: PTSD 309.81 subcategories C1 and E1 at pages [271]-[272].
Post Natal Depression is not a recognised category within the DSM-V but is characterised as follows:
There are many signs that someone may be struggling with postnatal depression. Some of the more common ones include:
· having a very low mood
· feeling inadequate and a failure as a mother
· having a sense of hopelessness about the future
· feeling exhausted, empty, sad and teary
· feeling guilty, ashamed or worthless
· feeling anxious or panicky
· having trouble sleeping, sleep for too long or have nightmares
· worrying excessively about their baby
· feeling scared of being alone or going out
In some cases, women may experience thoughts about leaving their family or worried that their partner may leave them. They could also have ideas about self-harm or doing harm to their partner or baby.[73]
[73] Australian Government, Department of Health: >
From its own direct observations and from the weight of material before it the Tribunal has no doubt that the Applicant clearly suffered/suffers from both PTSD and Post-natal Depression. It is reliant on the diagnosis of Mrs Fernandes that this may extend to Complex-PTSD (again not defined in DSM-V) and it has nothing to support a diagnosis of narcissistic personality disorder, although DSM-V defines “general personality disorder” as “an enduring pattern of inner experience and behaviour that deviates markedly for the expectations of the individual’s culture.”[74]
[74] DSM-V at [645].
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the Tribunal into jurisdictional error.
[34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
[35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[75]
[75] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.
However this is not entirely a black and white or automatic process. As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[76]
[76] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that, in relation to the responsibilities of a decision-maker, “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[77]
[77] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[78]
[78] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[79]
[79] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[80]
[80] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[81]
[81] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member P W Taylor SC in Aciek,[82] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[82] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
Because of her conviction and imprisonment for term in excess of twelve months, it is clear that the Applicant cannot pass the character test as imposed under the legislation.
This then brings into operation the schema of Ministerial Direction 65 in order to establish whether or not “another reason” exists to revoke the Delegate’s cancellation of the Applicant’s visa, a matter which the Tribunal must approach as a de novo exercise.
The Direction specifies two categories of criteria, “primary” and “other”.
The primary considerations are:
·The protection of the Australian community
·Best interests of minor children.
·Expectations of the Australian community.
In relation to the protection of the Australian community, the Tribunal is required to consider the “nature and seriousness of the conduct” which has led to the Applicant’s sentencing and the “risk to the Australian community should the non-citizen commit further offences or engage in serious conduct.”[83]
[83] Ministerial Direction 65 at 13.1.1 and 13.1.2.
There is no doubt about the seriousness of the Applicant’s offence. In his final submissions, counsel for the Respondent described it as “hard to find conduct more abhorrent” and pointed out that the Ministerial Direction identifies crimes against “vulnerable members of the community” (in this case a small baby) are particularly to be deprecated. The Direction also refers to the “frequency” of offending which brings into question that extent to which the Applicant was responsible for the infliction of previous injuries upon her daughter, as outlined by the sentencing Judge.
The Tribunal cannot but conclude that the conduct in question was serious and that the victim was clearly a vulnerable and defenceless person.
On the other hand the Tribunal is persuaded that the risk of the Applicant offending again must be set as low to minimal. In reaching this conclusion the Tribunal notes the following:
(a)The offence leading to the sentence took place at the end of a day which was one of extraordinary stress and trauma for the Applicant:
oWithout the help of her husband, which had been asked for and refused, the Applicant travelled (on public transport) from home at Liverpool to the hospital at Westmead to seek follow-up care for her daughter; returned to Liverpool for an appointment with the Department of Housing; engaged with a real estate agent; took her son to childcare; did some necessary domestic shopping and arrived home at 5.00 pm. In the process of changing her daughter’s nappy and reporting that her child was permanently screaming, she acted roughly and in a manner which caused the fracture to her daughter’s leg.
(b)Both Mr Watson-Munro (paragraph 5 of his report) and Mr Camacho (recommendation 8 of his report) characterise the risk of reoffending as “low”.
oThe Tribunal agrees with this assessment. It notes that at no stage has there ever been a suggestion that the Applicant has behaved inappropriately or violently towards her son. The incident with her daughter genuinely appears to be a one-off incident (although the Tribunal notes that previous injuries were suffered by the daughter). The impact of post-natal depression (as characterised above) should be taken into account, not by way of excuse but by way of explanation. This is not a permanent condition.
oBoth children are now in the care of the State and the Applicant has no access to them or to any other children who might be vulnerable. The Respondent raised the question of the Applicant having further children (who by implication might be at risk) but the Tribunal does not believe it is in a position to speculate on this matter.
oAlthough the Applicant (and her husband) expressed their desire for their children to be returned to their custody, Ms Pin in her evidence made it quite clear that, although more such applications are being successful these days than in previous years, the threshold tests which would need to be met for the return of the children under section 50 of the Child and Young Persons (Care and Protection) Act 1998 (NSW) are particularly stringent and the Tribunal doubts that they would easily be met by the parents, certainly in the immediate future.
oThe Tribunal has some sympathy with the point made by the Respondent that the Applicant still displays “limited insight” in to the nature of her offending behaviour. On the other hand the Tribunal notes that both the Applicant’s husband and members of her family have (belatedly) woken up to their responsibilities to provide greater support to their family member. The Applicant is certainly more conscious of her responsibilities and the consequences of her actions. In his sentencing remarks the Judge noted that a term of imprisonment for the Applicant would, because of a variety of circumstances, be particularly difficult for her.[84] That it was, is well illustrated in the report of Mrs Fernandes[85] and the Tribunal presumes that the Applicant would be particularly anxious not to repeat her unpleasant experiences there.
[84] Section 501 G Documents at [45].
[85] Fernandes Report at [11].
In closing submissions the Respondent characterised the risk of reoffending as “low to medium” but the Tribunal believes that it is very much at the lowest possible end of the scale.
In relation to the best interest of the minor children, it is quite clear that this weighs in favour of the revocation of the Delegate’s decision, a matter conceded by the Respondent[86]. At present the parents have limited rights of access to the children who, under current arrangements have been brought, once a month to see their mother at the Villawood detention Centre. These visits are supervised and reports are prepared after each visit by a representative of Settlement Services International (SSI). These SSI reports over a period from September 2018 to January 2019 have been uniformly encouraging and positive. In a letter addressed to the Applicant’s legal representatives, the Family Contact Worker at SSI (dated 18 January 2019) reports:
“The relationship between (Applicant),(son) and (daughter) has always been positive during all contacts. (Applicant) has been trying her best as a mother. She has shown (son) and (daughter) affection and care.”[87]
[86] Respondent’s Statement of Facts, Issues and Contentions at [53].
[87] Letter from Family Contact Worker at SSI appended to Applicant’s Statement of Facts, Issues and Contentions.
The Tribunal finds that it is clearly in the best interests of the minor children that the Applicant remain in Australia and continue to play a positive role in their future lives and development.
It is always hard to assess the expectations of the Australian community. In this instance there would be a balance between the community’s revulsion at acts of violence perpetrated against a defenceless baby and some understanding of the problems of a young mother, under stress, suffering with PTSD and post-natal depression losing control in the circumstances which prevailed on 24 September 2013.
Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:
“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 of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[88]
[88] Direction 65 at 13.3.
This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[89] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[89] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:
“is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[90]
[90] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
Similarly Deputy President McCabe has stated:
“The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[91]
[91] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].
In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:
“In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[92]
[92] Ibid at [58].
In Murphy v Minister for Immigration and Border Protection[93], Senior Member P W Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[93] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[94] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.
[94] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[95] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[95] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [96] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[96] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
There is evidence that the Applicant has sought to make major changes in her life. She has undertaken courses designed to improve her language skills and her general competence in areas such as hygiene management, cleaning, and health and safety.[97]
[97] Section 501 G Documents at [187]-[189].
On this basis the Tribunal is of the opinion that while the broad-scale application of the criterion mitigates against the revocation of the Delegate’s decision the weight that should be accorded to this is not overwhelming and should not be seen as fatal, or indeed particularly damaging to the Applicant’s case.
With the primary considerations assessed, the Tribunal must turn to evaluate the “other” considerations.
As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[98] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[99]. To treat the “other” considerations as in any sense “lesser’ in terms of their value would be to lead the Tribunal into error.[100]
[98] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
[99] Ibid at [26].
[100] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [24].
This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
“… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[101]
[101] CHFQ and Minister for Home Affairs (Migration) (2018) AATA 3858 at [88].
In this instance, the other considerations are:
·International non-refoulement obligations
·Strength, nature and duration of ties (to Australia)
·Impact on Australian business interests
·Impact on victims
·Extent of impediments if removed.[102]
[102] Ministerial Direction 65 part 14.
Clearly there are no business interests to be considered and it will be appropriate to discuss the non-refoulement and impediments criteria together.
Non-refoulement and impediment considerations: The Applicant arrived originally in Australia as a dependent, listed on a visa granted to her father in the global special humanitarian (Subclass 202) category. To be granted this the Australian authorities must have been persuaded that the family were subject to discrimination and the real threat of persecution on the basis of their membership of the Sabean Mandean minority community.
The Applicant urges upon the Tribunal that, if returned to Iraq she would face real threats to her welfare, even to her life. She claims that several members of her extended family were killed “by Muslim extremists.”[103]
[103] Section 501 G Documents at [77]. Further claims are made at [60]-[61] and [97].
At the present time the Applicant is a holder of a Resident Return Visa (subclass 155) which allows her, if she fears persecution, to apply for a Protection Visa.[104] Were she to do so then, under the provisions of Ministerial Direction 75,[105] her claims for protection would be assessed before any further assessment of her character issues were considered.
[104] Migration Regulations 1994, Schedule 1, Part 4, Item 1401.
[105] Minister for Immigration and Border Protection: Direction no. 75: Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b). 5 September 2017.
Ministerial Direction 65 (at 14.1 (4)) provides that:
Where a non- citizen makes claims which may give rise to international non- refoulement obligations and that non- citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposed of determining whether the cancellation of their visa should be revoked.
Given this, the Tribunal accepts that it is unnecessary to make an assessment of the non-refoulement obligations arising in this case,[106] although this proposition does not stand unchallenged.[107] The Applicant has another and more appropriate vehicle by which she can plead this element of her case.[108]
[106] Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513 at [28].
[107] Ali v Minister for Immigration and Border Protection [2018] FCA 650 per Flick J and Greene v Assistant Minister for Home Affairs [2018] FCA 919 per Logan J.
[108] Ayoub v Minister for Immigration and Border Protection [2015] 231 FCR 513 at [28].
However in terms of the impediments which she might face upon repatriation to Iraq it is not inappropriate to consider those which may arise from her membership of the Sabean Mandean community. In this, the Tribunal must take note of the advice of the Department of Foreign Affairs and Trade (DFAT) Country Information Report: Iraq which was tendered by the Respondent. That report concludes:
“DFAT assesses that Sabean Mandeans face a low risk of official discrimination. DFAT assesses that Sabean Mandeans face a moderate risk of societal discrimination and violence, similar to that faced by other religious communities in areas where they are a minority.”[109]
[109] Department of Foreign Affairs and Trade (DFAT) Country Information Report: Iraq (9 October 2018) at [3.31].
Exactly this issue (the status of the Sabean Mandean community in Iraq at the present) was examined recently by Senior Member Tavoularis in MNLR v Minister for Home Affairs[110] where he came to the conclusion that while the applicant in that case would suffer some degree of “difficulty” arising from repatriation due (in part) to his membership of this minority community, exaggerated claims of threat to life should not be accepted in the light of the DFAT report.
[110] MNLR v Minister for Home Affairs [2019] AATA 61 at [136]-[137].
The Tribunal notes the comments made by Mrs Yasmen Yahya, the President of the Sabian (sic) Mandean Association which suggested, at least in historic terms, to the contrary[111] but is bound to prefer the DFAT assessment on this question.
[111] Section 510 G Documents at [128]-[130]. The Tribunal did not take into account any further comments on this issue made by Mrs Yaha in her oral testimony given the objections raised to that testimony by the Respondent who reminded the Tribunal of its obligations to accept the DFAT report as authoritative on this issue in relation to the situation in contemporary Iraq. The Tribunal has done so.
The Respondent itself accepts, in its formal submission, that the Applicant would “face significant impediments if returned to Iraq.”[112] The Tribunal agrees with that assessment. The Applicant has no family in Iraq, she left there as a child and has no ties to the country. It is unlikely that she would have access to any of the support services, especially those related to mental health issues, which have been suggested as being necessary for her wellbeing.
[112] Respondent’s Statement of Facts, Issues and Contentions at [68].
The Ministerial Direction requires the Tribunal to consider the impediments within the context of a person, if returned, “establishing themselves and maintain basic living standards (in the context of what is generally available to other citizens of that country)”[113] with particular reference to their state of health and levels of available support. The Tribunal believes this would be an exceptionally difficult issue for the Applicant to face and has no confidence that she would be able to do so.
[113] Ministerial Direction 65 at [14.5(1)].
In relation to this issue of impact upon victims, the Tribunal notes that there is only one victim in this instance, the daughter who has already been removed from the Applicant’s custody. In his sentencing remarks the presiding Judge stated:
“There is no evidence that (the daughter) will have any long-term physical disabilities as a result of the broken leg – or, for that matter, the other three injuries.”[114]
[114] Section 501 G Documents at [40].
As has already been noted there is evidence that the daughter responds positively to visits with her mother and that her mother, in turn, exhibits love and caring attitudes towards her.
There are thus no negative conclusions to be drawn from consideration of this criterion.
In terms of the strength, duration and nature of ties to Australia, once again the Respondent accepts that these should “weigh in favour of revoking the cancellation decision”.[115] Once again, the Tribunal agrees. The Applicant has all of her family (husband, father and siblings, cousins, aunts and uncles[116]) in Australia. She has lived here most of her life. Most importantly, her two children are here. She has no other family or social networks of support arrangements.
[115] Respondent’s Statement of Facts, Issues and Contentions at [65].
[116] The Applicant lists over 50 such Australian resident relatives in her application, Section 501 G Documents at [151]-[159].
CONSIDERATIONS
In his closing submission, the Counsel for the Respondent described the role of the Tribunal as being one to “balance” the issues before it, urging that greater weight should be given to the primary considerations of risk to the community and community expectations than to any others.
By contrast, Counsel for the Applicant argued that the best interests of the children, together with the nature of impediments faced by the Applicant if repatriated should prevail.
The Tribunal agrees that its job is to balance these competing claims and to make a “calculus” (to use the Federal Court’s term[117]) resulting in an outcome.
[117] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In many ways this is a very sad case. A young mother, after a difficult pregnancy finds herself simply unable to cope. She receives no support from her husband (a gambler who has “bashed” her), nor from her family. She has recently been hospitalised after her home was badly damaged by fire. She has a small child who is unwell and in not altogether clear circumstances[118] she inflicts a serious injury upon that vulnerable child. She comes before the courts and is sentenced to a term of imprisonment, and finds that experience particularly difficult. In the process her children are taken from her care. She now faces the threat of deportation/repatriation to a country where she has no support and with which she has no ties and does so as a member of a religious minority which potentially exposes her to (at least) social discrimination and disadvantage.
[118] As evidence by the remarks of the Sentencing Judge, Section 501 G Documents at [37].
The Tribunal accepts that the purposes of the Migration Act are not to “punish” those who transgress its provisions. It does however place in the hands of the Tribunal a discretion to ameliorate its express provisions where the Tribunal is persuaded that there are compelling reasons to do so.
In exercising this discretion the Tribunal has taken note of the comments of Deputy President McCabe, stating a general principle as follows:
“As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.”[119]
[119] Do v Minister for Immigration and Border Protection [2016] AATA 390 at [23]. See also Mahu and Minister for Immigration and Border Protection [2018] AATA 161 at [79] per Deputy President Boyle.
Assessing each of the criteria[120], the Tribunal finds that, in terms of the protection of the Australian community: while recognising the gravity of the original offence, because the risk of further offences is low to negligible this weighs neither for nor against the Applicant.
[120] See YNQY v Minister for Immigration and Boarder Protection [2017] FCA 1466 at [14]-[[22] and [34] on the Tribunal’s obligations to make such clear and positive findings, per Mortimer J.
The best interests of the minor children weighs significantly in favour of the Applicant.
The expectations of the Australian community are finely balanced but in all probability weigh slightly against the Applicant given the nature of her offence.
The impediments faced by the Applicant if returned to Iraq are formidable and, as is agreed by the Respondent, weigh in her favour.
The Applicant’s ties to Australia, again as conceded by the Respondent, weigh in her favour.
To answer Cicero’s famous question, “qui bono?”[121] – who would benefit from the removal of this Applicant back to Iraq, the answer would be nobody. Who would suffer? She would and so would her children and family.
[121] Pro Roscio Amerino 32.3.
The calculus is clearly in favour of the revocation of the cancellation decision.
DECISION
The Reviewable Decision made on 13 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
I certify that the preceding 177 (one hundred and seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.............................[sgd]...........................................
Associate
Dated: 5 February 2019
Date(s) of hearing: 25 and 29 January 2019 Counsel for the Applicant: Mr N Poynder Solicitors for the Applicant: Ms R Hijwel, Hijwell Migration Lawyers Counsel for the Respondent: Mr A Markus, Australian Government Solicitor Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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