NFLL and Department of Home Affairs (Migration)

Case [2019] AATA 85

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…

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AGLC
NFLL and Department of Home Affairs (Migration) [2019] AATA 85
Case
[2019] AATA 85
Decision Date

CaseChat Overview and Summary

This matter concerned an application by NFLL for review of a decision by the Department of Home Affairs not to revoke the mandatory cancellation of her subclass 155 Five Year Resident Return visa. The cancellation was based on NFLL failing to pass the character test due to criminal convictions. The Administrative Appeals Tribunal was required to consider whether there was "another reason" for the cancellation to be set aside, applying the principles outlined in Ministerial Direction No. 65.

The Tribunal was tasked with determining whether the mandatory cancellation of NFLL's visa should be revoked. This involved assessing various factors as mandated by Ministerial Direction No. 65, including the protection of the Australian community, the best interests of minor children, community expectations, international non-refoulement obligations, the strength and duration of NFLL's ties to Australia, any impact on Australian business interests, the impact on victims, and the extent of impediments NFLL might face if removed from Australia.

In its reasoning, the Tribunal considered NFLL's evidence regarding her personal history and the events leading to her criminal convictions, which involved harm to her daughter. NFLL provided explanations for her actions, citing difficulties with her pregnancy, lack of support, and struggles with her daughter's health conditions. The Tribunal also noted NFLL's claims of potential persecution if returned to Iraq due to her membership in the Sabean Mandean minority community, although it found it unnecessary to definitively assess non-refoulement obligations given NFLL's ability to apply for a Protection Visa. The Tribunal acknowledged the advice from the Department of Foreign Affairs and Trade regarding the risks faced by Sabean Mandeans in Iraq.

Ultimately, the Tribunal set aside the decision to refuse to revoke the mandatory cancellation of NFLL's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].