NHHV and Minister for Immigration and Border Protection (Migration)

NHHV and Minister for Immigration and Border Protection (Migration) [2017] AATA 995 (29 June 2017)
Division:GENERAL DIVISION
File Number: 2017/2116
Re:NHHV
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:29 June 2017
Place:Sydney

The decision under review is affirmed.
............................[sgd]............................................
Ms N Isenberg, Senior Member
CATCHWORDS
IMMIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – drug and alcohol abuse – Ministerial Direction No. 65 applied – whether original decision should be revoked – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – international non-refoulement obligations – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 499(2A), 501(2), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4), 501E
CASES
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR; 60 ALJR 560
Minister for Immigration and Border Protection v Le [2016] FCAFC 120
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Gaspar v MIBP [2016] FCA 1166
SECONDARY MATERIALS
Department of Foreign Affairs and Trade, Smart Traveller website: Sudan viewed 27 June 2017
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Ms N Isenberg, Senior Member
29 June 2017
BACKGROUND

The Applicant is a 24 year old national of Sudan. After spending some years in camps in Sudan and Egypt, on 2 May 2006, he was granted a Class XB (Subclass 200) Refugee and Humanitarian visa. On 15 February 2007, at age 12, he arrived in Australia with his mother and siblings.
From 2009, he commenced offending. He continued offending, and as an adult served a number of terms of imprisonment:
·On 6 September 2013, the Applicant was convicted in Parramatta District Court of Robbery, for which he received a sentence of 27 months’ imprisonment with a non-parole period of 10 months.
·On 18 September 2014, the Applicant was convicted in Orange Local Court of Common assault, for which he received a sentence of 12 months’ imprisonment with a non-parole period of six months.
·On 10 March 2016, the Applicant was convicted in Orange District Court of Assault occasioning actual bodily harm, for which he received a sentence of nine months’ imprisonment with a non-parole period of six months.
·On 29 March 2016, the Applicant was convicted in Orange Local Court of:
oCommon assault, for which he was sentenced to six months’ imprisonment;
oResist officer in execution of duty, for which he was sentenced to six months’ imprisonment;
oContravene prohibition/restriction in AVO (domestic), for which he was sentenced to six months’ imprisonment; and
oHave custody of an offensive implement in a public place, for which he was sentenced to six months’ imprisonment.
The Applicant’s last period of imprisonment concluded on 28 August 2016, following which he was, and continues to be, detained at Christmas Island Immigration Detention Centre.
WHAT HAS LED TO THIS REVIEW?
On 25 July 2016, the Applicant was issued a notice by the Department of Immigration and Border Protection that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (the Act).
The Applicant subsequently lodged a request for revocation of the mandatory cancellation decision. On 6 April 2017, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the original decision. The Applicant seeks review of that decision, pursuant to s 500(1)(ba) of the Act, which allows applications to be made to this Tribunal for review of decisions of a delegate of the Minister not to revoke a decision to cancel a visa.
It was submitted on the Applicant’s behalf that a broader and more generous discretion should be applied to the Applicant, given the harmful effects of the cancellation of his visa and his consequent return to Sudan on his mental health and the effect on his family and his children.
LEGISLATIVE SCHEME
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa if satisfied that he or she does not pass the character test set out in the Act. A person does not pass the character test if he or she has a substantial criminal record and is serving a full-time sentence of imprisonment: s 501(6) and (7).
For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
As soon as practicable after deciding to cancel a person’s visa, the Minister must give the person written notice of the decision and invite him or her to make representations about the revocation of the decision: s 501CA(3).
Section 501CA(4) provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i.that the person passes the character test (as defined by section 501); or
ii.that there is another reason why the original decision should be revoked.
The discretion to revoke the cancellation of a visa must be exercised in accordance with Ministerial Direction No. 65 (the Direction) which came into effect on 22 December 2014. The Direction was made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: s 499(2A).
By reason of the sentence imposed by the court on 6 September 2013, the Applicant has a substantial criminal record and, as was conceded on his behalf, he cannot pass the character test. The question is whether there is another reason why the cancellation of his visa should be revoked.
Outline of the direction
The purpose of the Direction is stated to be ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act...’. Its purpose is not, and cannot be, to direct decision-makers to exercise their powers in a particular way, either in favour of or against visa holders or visa Applicants. The Principles set out in the Direction are said to ‘provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501 ...’: paragraph 6.2(3). Those Principles are found in paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the Principles in paragraph 6.3 of Direction 65, the decision-maker must take into account the primary considerations in Part C, paragraph 13 of Direction 65, in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, which are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interest of minor children in Australia; and
(c)expectations of the Australian Community.
There are other considerations in paragraph 14 of Part C which must be taken into account (where relevant) in deciding whether to revoke the mandatory cancellation. These considerations include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed from Australia.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
When considering protection of the Australian community, decision-makers must have regard to the objectives of the Act and the principles in the preamble: paragraph 13.1(1). In accordance with paragraph 13.1(2), decision-makers should also give consideration to:
(a)the nature and seriousness of the noncitizen’s conduct to date; and
(b)the risk to the Australian community should he or she commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
In this context decision-makers must have regard to factors set out in paragraph 13.1.1, including:
(a)that violent crimes are viewed very seriously; the sentence or sentences imposed by the courts;
(b)the frequency of offending and whether there is any trend of increasing seriousness; the cumulative effect of repeated offending;
(c)and whether the person has provided any false or misleading information to the Department of Immigration and Border Protection including by not disclosing prior criminal offending.
Offences involving violence are viewed seriously. The Applicant has been found guilty of a number of assault-related offences, including assault occasioning actual bodily harm, and robbery involving “actual violence”. In his sentencing comments, Judge Freeman in the Parramatta District Court on 6 September 2013, recorded that the Applicant had “grabbed [the victim] around the throat with his left hand and kept telling him to give him the phone pushing his hand deeper into the boy’s throat”.
The Judge also commented on the Applicant’s juvenile offences, noting them to have been “quite serious offences.” These included:
·On 25 May 2009, he had “sparked a violent confrontation.”
·On 11 August 2010, he had instigated a fight with another person. He “began to throw punches at [the victim] who was forced to defend himself.”
·On 28 December 2011, he stole another person’s phone and threatened to stab the victim and burn down his house.
·On 5 January 2012, he was charged with common assault for allegedly punching his mother several times. He received a six month suspended sentence on 29 May 2012. An AVO was also taken out to protect the Applicant’s mother, which was in effect for two years commencing on 29 May 2012.
The Applicant did not deny his record. However, he claimed that many of the charges were false. For example, he denied he had assaulted his ex-partner in 2012. He believed a charge of common assault in 2014 had ‘been dropped’ whereas his record showed he had clearly been convicted of that offence. He denied the alleged assault on his ex-partner in 2016 and he said he had never hit her, and had only hit the wall, and the police should not have come; he claimed he was ‘directed’ to plead guilty. In relation to another assault charge in 2016, he said that he was defending himself.
The Applicant also denied that he had punched his mother, of which he was convicted in May 2012. In her evidence the Applicant’s mother also denied that he had punched or threatened her and gave a confused account of what had occurred, which was in direct conflict with the contemporaneous police reports. She said that whatever he had done was ‘against his will’.
The victim of the Applicant’s most recent common assault charge, for which he was sentenced to six months’ imprisonment on 29 March 2016, was his ex-partner and the mother of his three children. At the time the victim was pregnant, and one of the couple’s children was present in the home at the time of the incident. The Applicant’s criminal history also includes an offence against his ex-partner on 31 January 2012, during which, the Applicant “grabbed her by the front of the shirt and has pushed her back onto the bed. The [Applicant] has then sat on her and has placed both of his hands around her kneck [sic] and squeezed them for approximately five (5) seconds until the victim was gasping for air”.
In relation to the eight or so Apprehended Violence Orders (AVO) taken out against him he said that none were necessary. His history also includes breaches of AVOs on more than one occasion. Some, although not all, arose out of alleged domestic violence, which offences are to be viewed as particularly serious.
Under paragraph 13.1.1(1)(b) of Direction 65, regard must also be had to the principle that crimes committed against vulnerable members of the community, such as minors, are serious. The Applicant’s offence of ‘robbery’, for which he was sentenced on 6 September 2013, was a crime committed against two minors, aged 14 and 15 years. Paragraph 6.3(3) of Direction 65 provides a non-citizen who has committed a serious crime against vulnerable members of the community should generally expect to be denied the privilege of staying in Australia.
The seriousness of the Applicant’s conduct is reflected in the sentences imposed on him. Terms of custodial imprisonment must be viewed as a reflection of the object seriousness of the offence involved. The Applicant has received several custodial sentences ranging from periods of 6 to 27 months, and received the maximum imprisonment term of 12 months for common assault on 18 September 2014.
The Applicant’s frequent offending over a seven year period must be viewed very seriously, when considered in terms of its cumulative effect in view of both the overall physical, financial and emotional impact on victims of violence, theft and related offences, and the cost to the community of law enforcement and drug rehabilitation programs: paragraph 13.1.1(1)(d) and (e) of Direction 65. The Applicant’s pattern of offending has continued notwithstanding the custodial sentences he received. As a minor, the Applicant appeared in the NSW Children’s Court on eight occasions, and was convicted of an additional 12 offences as an adult, including during periods when the Applicant was on parole and required to undergo drug and alcohol rehabilitation.
I find that, overall, the Applicant’s conduct to date should be regarded as very serious.
Risk to the Australian community
The nature of harm to individuals or the Australian community should the person reoffend, and the likelihood of reoffending are relevant to considering whether the risk of repeated offending is unacceptable: paragraph13.1.2.
The Applicant said he had no intention of harming anyone should he be released: “I am actually a nice guy”. Notwithstanding his multiple convictions for assault, he said he is “not a violent person”. He said he is sorry for what he has done. He just wants to be with his family and his kids and do what he has missed out on. Any further issues with his ex-partner will be dealt with “by family law”. He said he would be a good citizen and would follow up his counselling providers; if he needs help he will ask for assistance.
Dr Richard Furst, psychiatrist, reportedly opined in a pre-sentence report in September 2013 that the Applicant had “reasonable” prospects of rehabilitation and a “comprehensive plan” which required the Applicant to engage in counselling and psychiatric intervention was developed for his release on parole. However, after being released on parole on 27 September 2013, the Applicant continued to re-offend, including committing crimes of violence.
The Applicant has had a number of offences while in prison, including as recently as April and June 2016. The Applicant denied at least one of these offences, admitting though that he was ”not exactly a victim”, but claiming he had been mistreated, and did not want to discuss it further. As to the times of his segregation in prison, the Applicant said that he was under stress. There have also been a multiple reported incidents since he has been in detention, which, in his evidence, for the most part, he could not remember or denied.
From as early as 2009 the Applicant has been expressing remorse for his conduct, without apparent impact on his ongoing misconduct.
The Applicant’s criminal offending has been significant and unrelenting, having commenced while he was a minor, and only a few years after his arrival in Australia. There have been instances of assault, sometimes with actual bodily harm. He has had multiple apprehended domestic violence orders taken out against him, some of which he breached. Much of his offending has been while drug or alcohol affected.
While out of prison he was to undertake further counselling but, according to breach of parole reports, failed to attend some appointments, which the Applicant denied. The Applicant has apparently undertaken a number of courses or programs dealing with his alcohol problems. They have been helpful but objectively they seem to have been of marginal assistance, since his criminal offending has continued over the years and, if anything, worsened.
While the Applicant said that the plan developed prior to his release still represents his current thinking about the future, he said that a number of features had changed. He no longer has plans to live in the country town where his children live, and consequently his access to drug counselling services would have to be changed. His sporting contacts are also in that town. He said he did not want to discuss his plans for employment. It is doubtful that the Applicant’s living and financial circumstances upon release are unlikely to facilitate rehabilitation, as he has had little employment – being either on welfare or incarcerated.
I consider that the Applicant’s long history of illicit drug consumption and binge drinking, which have contributed to his offending, provides no confidence that these issues have been addressed. Further, from his persistent denials about the circumstances of the offences for which he has been convicted, I also have no confidence that the Applicant has much insight into his offending and the causes of his misconduct.

The fact that the Applicant has engaged in violent crimes, including against vulnerable members of the community, the level of sentence imposed by the courts for the crimes he has committed, the frequency of his offending and the ongoing seriousness of the offences, all point to a finding that the likelihood of his re-offending is at least moderate, and more likely significant. There is little information or evidence from independent and authoritative sources that would tend to suggest any other finding. I observe that in a pre-sentence report prepared by a senior community corrections officer in March 2016 the Applicant was assessed as a high risk of re-offending. I, too, consider that there remains a significant risk that the Applicant will reoffend. This weighs heavily in favour of non-revocation of the visa cancellation.
There is, however, some evidence that his family, in particular his mother, is willing to monitor the Applicant and guide his conduct if he is released from immigration detention and allowed to reintegrate into the community. I do not doubt the genuineness of his mother’s commitment. Nevertheless, given the Applicant’s criminal history and his past inability to abide by the law despite multiple warnings from sentencing courts, I must conclude that there is, at the very least, a moderate likelihood that the Applicant will re-offend, and the risk to the Australian community should he do so is significant, given the nature of his previous offences.
This consideration weighs heavily against the Applicant.
The best interests of minor children in Australia
In considering the best interests of a child or children, factors that must be considered are set out in paragraph 13.2(4) and include:
(a)the nature and duration of the relationship with the child;
(b)the extent to which the person is likely to play a positive parental role in the future; whether the person’s prior conduct, and any likely future conduct, would have a negative impact on the child; and
(c)the likely effect that any separation would have on the child.
The Applicant has three young children now aged 6, aged 5 and about 18 months from a previous relationship with an Australian woman. The Applicant’s children live with their mother and maternal grandmother in country New South Wales.
The submission on the Applicant’s behalf was to the effect that the delegate should have applied the most weight in the decision-making process to the factor of the best interests of the children. While I accept that the family is a fundamental group unit of society, the best interests of the children is only one of the primary considerations that must be taken into account.
It was also submitted that the Applicant has a stable and loving relationship with all three of his children and actively wants to be involved as their father in their daily activities. While this may be the Applicant’s aspiration, it does not reflect what has occurred to date.
The Applicant claimed to be close to his children and that he had spent a lot of time with them. He claimed he was ‘best mates’ with his eldest child. Whilst the Applicant stated that he “would do anything for [his children]” and does not know what he would do without them, the evidence indicates that, contrary to his assertion, he has not had a strong relationship with his children, having been incarcerated for a substantial portion of their young lives. Indeed, the Applicant has been incarcerated, or in immigration detention, since his youngest child was about six weeks old, and the Applicant admitted that he had not spent much time with her. The last time he saw the children, he said, was in February 2016 and according to a psychological report dated 29 July 2016 his ex-partner had permitted him to speak to the children by phone. There is no evidence of the Applicant maintaining contact with his children whilst in detention.
The Applicant’s mother said he had told her he will be ‘the perfect father’. She said the children ask when they will see their father again.
He has engaged in violent, aggressive and threatening behaviour towards the children’s mother which, on at least one occasion, was in the presence of one of his children. As a result, the Applicant’s ex-partner had an AVO taken out on 29 March 2016 for a period of 12 months. It is unclear to what extent he had been permitted contact in any event, given the problematic relationship with his ex-partner. There is no evidence that he has ever been their primary carer or has provided financial support for his children. The views of the Applicant’s ex-partner and the children’s maternal grandmother are unknown, but, it is doubtful if they would have been supportive of the Applicant, given his history of violence towards his ex-partner.
Even if there is some scope for the Applicant to establish in the future some type of parental role in relation to each of his children, whether that is practically possible remains unclear. His plan on release, he said, was to live in Sydney, whereas his children live in the country.
I accept that the Applicant’s children will each be affected by the cancellation of his visa. The children may benefit from being able to resume a relationship with their father. That could be done if the Applicant remains out of prison, he lived closer and he and the children’s mother resolve their differences and establish regular and stable access arrangements through the Family Court. I am satisfied the interests of the Applicant’s children weigh somewhat in the Applicant’s favour.
Expectations of the Australian community
In considering the expectations of the Australian community, regard must be had to paragraph 13.3 of Direction 65, informed by the principles at paragraph 6.3, and the expectation that it may be appropriate to not revoke the mandatory visa cancellation of a non-citizen who has committed a serious crime in Australia, including crimes of a violent nature. The Direction states that the Australian community expects non-citizens to obey Australian laws; where a non-citizen has breached, or there is an unacceptable risk that they will breach, this trust, or where he or she has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation. Non-revocation may be appropriate “simply because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa”. Decision-makers “should have due regard to the Government’s views in this regard: paragraph13.3.
The principles in the Direction “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable”: paragraph 6.2.
It was submitted for the Respondent that the Australian community would expect that the Applicant should not hold a visa given the serious nature of his offences, which include domestic violence, assault and robbery, the multiple prison sentences imposed by the courts over the years, and the Applicant’s continued offending from a young age.
What the community would expect in a particular case, and whether the risk of future harm by a particular individual is unacceptable, is not something for which there can be any formula; it will always be a matter of judgment, informed by the subject-matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR; 60 ALJR 560.
In Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie observed at [65]: “…the heart of the Direction is the protection of the Australian community and its institutions”, and “within their parameters, the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”: at [68].
In Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463, Deputy President Frost referred, at [77]-[81], to the difficulty in identifying precisely what the expectations of the Australian community are. At [80], Deputy President Frost said:
…[The Australian community] comprises a vast array of people from a range of backgrounds, cultures and experiences, who live according to the simple principle of wanting to give others a fair go, just as they would expect for themselves. It is within the broad middle ground of our society that the “expectations of the Australian community” are properly to be sought.
On the one hand, there are those who would think that on the sole basis of the Applicant’s offending to date that his visa should be cancelled. On the other hand some members of the community, while not condoning his conduct, might consider, on the basis of his unfortunate background, he should be given another chance.
However, the objective evidence is not strong enough to support the latter course in this case. It is not sufficient for the Applicant, following his many periods of incarceration and his more recent detention, to now say that he is motivated to become and remain a law-abiding member of the community. He has had multiple opportunities in the past. When he first came before the judicial system he was dealt with leniently in the hope he would stay out of trouble. However, his offending continued. The rehabilitation courses that he took appear to have been only mildly successful, for his abuse of drugs and alcohol continued. Even the planned support of his family, especially his mother, while well intentioned, does not provide enough reassurance that the Applicant will be able to turn his life around, notwithstanding he has ‘promised’ his mother he will do so.
Considering all of the information before me about the Applicant’s offending, his apparent lack of genuine efforts at rehabilitation, the risk of his reoffending, and the absence of evidence that he could make a contribution to the community through employment, I am satisfied that the Australian community would, on balance, say that he presents an unacceptable risk of future offending.
This consideration weighs heavily in favour of refusing the Applicant’s revocation application.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Applicant claimed that Sudan is a war zone, and that to be sent back there would be a “death sentence.” He has contended that he will be homeless, without family support, unable to obtain adequate medical treatment for his psychiatric conditions, and may be killed.
The Respondent’s contention was that, contrary to the assertion made on the Applicant’s behalf, the visa that has been cancelled is a Class XB (Subclass 200) Refugee visa, not a protection visa.
I was referred to Minister for Immigration and Border Protection v Le [2016] FCAFC 120 where it was held at [65] that the non-refoulement obligations are not a mandatory consideration when considering whether to exercise the discretion to cancel a person’s visa under s 501(2) of the Act in the circumstances where it remains open to that person to make an application in Australia for a protection visa. The Applicant’s solicitor said that, as the Applicant is already a ‘refugee’, it is unnecessary for him to apply for a protection visa but conceded that it was open to the Applicant to make such an application: s 501E(2).
By email sent to the Tribunal after the hearing on 14 June 2017, the Applicant’s solicitor asked the Tribunal, in making its decision in the present application, to consider, the Full Federal Court’s in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16) which had been delivered the previous day. The Respondent sought the opportunity to make urgent written submissions, and both parties were afforded this opportunity, although no further submissions were received on the Applicant’s behalf, apparently relying on the extensive earlier submissions.
In BCR16, the majority of the Full Federal Court held that the Assistant Minister had erred in finding that it was unnecessary to determine whether non-refoulement obligations were owed to the Appellant because he was not prevented from making an application for a protection visa. The Appellant in that case had advanced as a reason for revocation that he would be harmed upon return to his country of origin. The majority of the Court held that the Assistant Minister failed to carry out the task required by s 501CA(4) of the Act in relation to the reasons for revocation (and in particular, the reason relating to the claimed risk of harm in the country of origin) that were included in the Appellant’s representations submitted pursuant to s 501CA(3)(b) of the Act.
The Minister submitted that BCR16 was wrongly decided and informed the Tribunal that an application for special leave to appeal to the High Court of Australia is being considered. In the meantime, the Minster accepted that decision-makers, including the Tribunal, are bound by the decision.
For the purpose of the present matter, the Minister conceded that, in light of BCR16, the Tribunal is required to turn its mind to the claims made by the Applicant regarding the risk of harm to the Applicant in Sudan, both in written and oral submissions, and to give them such weight as the Tribunal considers appropriate. It was conceded that the Tribunal cannot decline to consider whether the Applicant’s claims about what would happen to him if sent back to Sudan would constitute “another reason” why the decision to cancel his visa should be revoked: BCR16 at [73].
It was submitted on the Applicant’s behalf that Australia’s non-refoulment obligations flow from various international conventions and covenants such as the United Nations High Commissioner for Refugees (UNHCR) 1951 Refugee Convention and its Protocol, International Covenant on Civil and Political Rights (ICCPR), as well as Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (CAT). It was submitted that removing the Applicant to Sudan will return him to a place where he faces real and significant harm. The balance of the Applicant’s submissions on this issue are reproduced as follows:
In the Refugees Convention, refoulment [sic] finds expression n [sic] Article 33, which provides:
Prohibition of expulsion or return (refoulment) [sic]
1.No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2.The benefit of the present provision may not, however be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particular serious crime, constitutes a danger to the community of that country.
Also, relevant in relation to the expulsion or return of a refugee is Article 32 of the Refugees Convention, which provides:
Expulsion
1.The Contracting States shall not expel a refugee lawfully in their territory save grounds of national security or public order.
2.The expulsion of such a refugee shall only be in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
3.The Contracting States shall allow such a refugee a reasonable period within which to seek admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.
It has been extensively noted that Article 33 of the Refugees Convention,” the principle of non-refoulment [sic] constitutes a “cornerstone of the protection of refugees and asylum seekers”: Davy U, Article 32 in Zimmermann A (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol, A Commentary (Oxford University Press, 2011) p1335.
It is against international law background following the observation by the High Court in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [27] (Plaintiff M61/2010E) about its translation into domestic law is material.
[R]ead as a whole, the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purposes of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol.
In some respects, as was explained in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, the provisions of the Migration Act may, at times have gone beyond what would have been required to respond to those obligations. It is presently significant that the Migration Act proceeds from the assumption that Australia has protection obligations to individuals. Significantly, [the Applicant] has been granted a protection visa.
Detailed submissions were made about the impact on the Applicant if he were returned to his home country:
There are substantial impediments if [the Applicant] were to return to Sudan.
Sudan's violent conflict is now being considered genocide, being perpetrated along tribal lines and local armed conflicts, exacerbated by an abundance of small arms, continue to cost lives and disrupt communities. This is evidenced by the Australian Government’s own concerns and warnings to citizens about travelling to Sudan. ( UNHCR's 14 April 2015 Position on Returns to South Sudan document states that "the security, rule of law and human rights situation pertaining today in South Sudan ... stands in the way of safe and dignified return for any person originating from South Sudan," and for these reasons, the UNHCR recommends that states "suspend forcible returns" to the country (United Nations 14 April 2015, para. 9).
Famine is rife and government is accused of blocking food aid to some areas. Villages are being burned down, women were being raped and food was being used as a weapon of war. Returning refugees face harassment from authorities depending on who they are, and the nature of the asylum claim. If they are alleging risk of being tortured by the Sudanese government, for example, there is an elevated risk that would carry repercussions if the authorities in Sudan were made aware.
Concerning factors that influence the treatment of returnees, is that men tend to be scrutinized more than women, and that there are huge ethnic tensions now.
IRIN reports that some returnees who returned to their home areas found new owners had taken over their farms and some others lacked the required documentation to resettle on their land. Sudan lacks a legal framework to resolve land allocation issues and resentment between returnees and host communities over resources in Sudan has caused tensions and increased the likelihood of conflict. Sudan has "unclear or non-existent laws" related to land use and ownership, and that land issues are frequent causes of conflict in Sudan, and returning refugees have exacerbated the problem.
There are numerous violent attacks against returnees which can often lead to fatalities. Sudan is experiencing ethnic cleansing by mostly government forces and their allies.
The Respondent’s additional submissions, each of which is addressed below, were as follows:
12.Firstly, the Minister maintains that in the present proceeding, the Tribunal is not required to conduct an extensive assessment of the applicant’s claims to fear harm in Sudan. In this context, it remains relevant to the Tribunal’s weighing exercise that the applicant is able to make an application for a protection visa and to have his claims assessed and tested under the protection visa regime.
13.Secondly, and in any event, the applicant has not advanced any evidence of probative value to support a finding that he faces a real risk of harm in Sudan. As the Minister submitted at the hearing of this matter, (a) the mere fact that the applicant was granted a refugee visa in 2006 does not speak to whether he now faces harm in Sudan; (b) he has identified no clear basis for his claimed fear of harm; and (c) the oral evidence of the applicant’s mother that she has spent extensive periods of time in Sudan since her arrival in Australia and the oral evidence of the applicant and his mother that in 2015, the applicant was considering a visit to Sudan to marry a Sudanese woman undermine the claim that the applicant would face harm in that country.
14.Thirdly, and in any event, given the factors identified … above, the Tribunal should give limited weight to the applicant’s claim that he faces a risk of harm in Sudan.
15.Fourthly, notwithstanding the weight that the Tribunal attributes to the applicant’s claimed risk of harm in Sudan, in the circumstances of this case and given the applicant’s offending history, the primary considerations of the protection of the Australian community and the expectations of the Australian community (as set out in [the Direction] outweigh any considerations in favour of revocation, including the claims concerning non-refoulement obligations owed to the applicant.
16.Fifthly, it would not be the case that an application for a protection visa made by the applicant “may be required to be refused because of the non-satisfaction of character criteria, so that consideration of risk of harm might never be reached” (BCR16 at [68]). This is because the relevant policy guidance in the PAM makes it clear that an applicant for a protection visa will not have their application referred for possible refusal under s. 501 on character grounds without having first had their protection claims assessed against the criteria in s. 36 of the Act. So it remains the case that the Tribunal can legitimately take the view that a full assessment of whether protection obligations are owed to the applicant would take place were he to make an application for a protection visa in the future.

The submission that I am not required to conduct an extensive assessment of the Applicant’s claims to fear harm in Sudan appeared somewhat at odds with the Respondent’s concession referred to above that, in accordance with BCR16, the Tribunal is required to turn its mind to the claims made by the Applicant regarding the risk of harm to him in Sudan.
I observe that the Smart Traveller ‘travel advisory’ to which the submission on behalf of the Applicant referred, records, with respect to Sudan:[1]
[1] Department of Foreign Affairs and Trade, Smart Traveller website: Sudan viewed 27 June 2017.
…
·Reconsider your need to travel to Sudan due to the possibility of violent civil unrest and the threat of terrorist attack.
·Travellers should be aware that the ability of the Australian Government to provide consular services to Australians in Sudan is limited. Australia does not have resident diplomatic representation in Sudan.
·Do not travel to Northern, Southern and Western Darfur, the Abyei region, Northern and Southern Kordufan, Blue and White Nile states, Sennar state, and areas within 15km of the border with Eritrea and Ethiopia due to the possibility of armed conflict, the threat of terrorist attack, violent crime and threat of kidnapping.
·Do not travel within 50km of Sudan's border with Libya. The border regions are used as a transit point for the movement of armed militants and extremists and are a known smuggling route for goods and people.
·Australians in Sudan should have personal security measures in place, including contingency plans to depart Sudan.
·Dual citizenship is recognised in Sudan, but in practice, Sudanese citizenship has primacy over other citizenships and dual nationals are treated as Sudanese citizens.
·There is a threat of kidnapping throughout Sudan. Foreigners, including NGO workers, are targeted.
·There is a high risk of kidnapping of foreigners, including NGO workers, throughout Darfur. Kidnappings are not restricted to rural areas and have occurred in and around the state capitals and towns, including Nyala, Kutum and Zalingei. Aid workers and expatriates are commonly targeted.
·Avoid demonstrations, protests and large crowds throughout Sudan, including in Khartoum. Violence can occur with little warning. Monitor the media for information on developments which may affect your safety and security. Follow the advice of local authorities.
·Landmines have been laid in rural areas. Southern Kordofan and the Eastern States, including the border area with Eritrea, are the most affected areas. …
I accept, albeit on the basis of this limited information, and the other references provided by the Applicant that Sudan is a dangerous place, especially for travellers.
I considered whether the Applicant had provided any probative evidence to support a finding that he faces a real risk of harm in Sudan. I did not find his evidence to articulate a clear basis as to any cause for belief he would be harmed, other than the general assertions referred to above. Although he, through his mother who had been the primary visa holder, was granted a refugee visa in 2006, I do not know on what basis and whether he would now face similar or other harm in Sudan, or indeed harm at all, other than the deprivation reportedly experienced by some of the population. Furthermore, the evidence of his mother that she has returned to Sudan on several occasions since her arrival in Australia significantly militated against a contention that the Applicant would be harmed if he returned there. Although the Applicant denied there was a serious plan to visit Sudan to marry a Sudanese woman, the fact that his devoted mother even contemplated such an undertaking further weakens his claim that he would face harm if returned to Sudan.
There is no evidence that an application by the Applicant for a protection visa “may be required to be refused because of the non-satisfaction of character criteria, so that consideration of risk of harm might never be reached”: BCR16 at [68]. I am satisfied that a full assessment of whether protection obligations are owed to the Applicant would take place if he were to make an application for a protection visa in the future: s 36 of the Act.
As I have found, Sudan is currently a dangerous place. I have also found that the Applicant has not provided clear evidence as to why he believes he would be harmed if he returned there and whether the reasons he was granted a refugee visa in 2006, might continue. I have found that his mother’s evidence of her unrestricted travel to Sudan over the last few years and her plans for the Applicant to travel there to marry a Sudanese woman significantly detract from his claim that he would be harmed if he returned there. A full assessment of whether protection obligations are owed to the Applicant will be undertaken if he were to make an application for a protection visa.
Strength, nature and duration of ties to Australia
When considering the strength, nature and duration of ties that a person has to Australia, regard must be had to how long the person has lived in Australia, noting that less weight should be given where he or she began offending soon after arriving here, and more weight should be given to time he or she has spent contributing positively to the Australian community: paragraph 14.2.
Regard must also be had to the strength, duration and nature of any family or social links with Australian citizens or permanent residents including the effect of non-revocation on a person’s immediate family in Australia: paragraph 14.2.
The Applicant has been in Australia for 10 years, having arrived at age 12 or 13. The Applicant’s immediate and extended family currently reside in Australia, including his parents, five brothers, a sister, two uncles/aunts, his ex-partner, and three minor children. Members of his family provided statutory declarations in support of the Applicant. However, they have not provided evidence of any impact that the Applicant’s removal from Australia would have apart from an emotional impact. His mother gave evidence of the Applicant’s horrific childhood – seeing widespread slaughter, including relatives and their village being burned. He was very supportive of his mother, especially after they became separated from his father. His mother gave birth to one of his siblings with his assistance; he begged for food for them; he helped her learn Arabic when they transferred to the camp in Egypt, and English when they came to Australia. Even as a child he experienced nightmares as a result of the trauma he experienced.
The Applicant was said to be aware of how his absence and return to Sudan will dramatically affect not only himself, but his children and his extended family. He has a close relationship with his parents who reside in suburban Sydney and he relies on the emotional support and social interaction with his extended family of cousins, aunts and uncles and his five brothers and sister who reside in Australia. Some of his siblings attended the hearing so they could at least see their brother via video link. Statutory Declarations were provided by one of the Applicant’s brothers, a nephew and a cousin to the effect that if he is returned to Sudan, where communications resources are limited, he was likely to suffer the emotional impacts of being cut off from his family which could escalate his depression and anxiety. His mother said the family would ‘do anything’ to get him back. I accept that all immediate members of his family are in Australia. His grandmother is in Sudan, although is unwell.
The Applicant has spent his pubescent years and his early adulthood in Australia. It was submitted that despite the interruption and effects of his mental health, his cultural differences and the PTSD he has carried with him since leaving Sudan, he has tried as much as possible to be absorbed into Australian society. The Applicant had engaged in team sports of soccer at the local football club and feels a sense of belonging through these sporting activities.
Having regard to paragraph 14.2 of Direction 65 and the principles at paragraph 6.3(5), a higher tolerance may be afforded to the Applicant, who has lived in the community from a young age. However, in accordance with paragraph 14.2(1)(a)(i), because the Applicant began offending soon after arriving in Australia less weight should be given to this factor. The Applicant began offending, as a juvenile, within two years of his arrival in Australia and continued to re-offend as an adult, and has incurred a substantial criminal record, with several offences involving violence.
There is little evidence of any positive contributions by the Applicant, beyond brief periods of employment. He has apparently been a keen sportsman and has participated in local sporting teams.
I accept that this factor somewhat favours the Applicant.
Impact on Australian business interests
There is nothing to suggest that the Applicant’s removal from Australia would have any impact on Australian business interests.
Impact on victims
Paragraph 14.4 of the Direction requires that consideration be given, if relevant, to the impact of non-revocation on members of the Australian community including victims of a person’s criminal behaviour and on victims’ family members, where that information is available.
There is no evidence from the Applicant’s victims in relation to the impact of his remaining in Australia.
Extent of impediments if returned to Sudan
The Direction requires that consideration be given to any impediments that the person may face, if removed from Australia to their home country, in establishing themselves in maintaining basic living standards, taking into account: the person’s age and health; whether there is substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country: paragraph 14.5.
It was submitted on the Applicant’s behalf that he would face substantial impediments if he were to return to Sudan. It remains a county in violent conflict.
The Applicant was born in Sudan but has not returned since arriving in Australia in 2007. He has claimed that returning to Sudan would be a “death sentence”, that he would be homeless, without family support, unable to obtain adequate medical treatment for his psychiatric conditions, and he may be killed.
The Applicant speaks the Sudanese language, Zagahawa, fluently, it having been his first language. That being so, there appear to be no substantial language or cultural barriers for the Applicant to overcome if he were to be returned to Sudan.
In 2015, in an interview with a community corrections officer, the Applicant was present when his mother asked whether the Applicant could travel to Sudan as she and her husband had arranged a marriage for the Applicant. The Applicant confirmed that as his intention in a separate interview, although in his evidence the Applicant denied this was the plan, and that it was only his mother’s wish. The Applicant’s mother also told the officer that she would ensure the Applicant had a medical certificate from his doctor so that his medication could be continued in Sudan. Also, cannabis ‘is not tolerated’ there. The Applicant reportedly told a psychologist on 29 July 2016 that his mother was happy to be returning to Sudan, but this was denied by his mother in her evidence; he claimed that his family would return with him, but his mother said that was impossible as his siblings are at school and university; she would however return to Sudan with him for 1-2 months to settle him in. In her evidence the Applicant’s mother said she only suggested he marry a Sudanese girl in the hope that would provide some stability; there was no intention that he should live there. The Applicant said in his evidence that his mother would say anything to help him.
The Applicant’s mother’s evidence was that she has returned to Sudan on three occasions – in 2010, 2012 and 2015, staying there for periods of up to 6 months, which tends to militate against the Applicant’s assertion in relation to what he may expect in return to Sudan. The family is scattered throughout the world; some are missing. There are distant relatives there, including the girl she suggested the Applicant marry, although she has now married someone else and has a child.
There was no dispute that the Applicant has a mental health diagnosis of PTSD, depression and severe schizophrenia, for which he has been prescribed antipsychotic medication. He said he also receives counselling once or twice a week. The Applicant sought to tender further medical evidence but these were not supplied in accordance with the “two day rule” set out in ss 500(6H) and 500(6J) of the Act, and the tender was not pressed, in view of the Respondent’s concession that the Applicant suffers those conditions and that medical support in Sudan was unlikely to be as good as that available in Australia.
The Applicant, it was submitted, through the assistance of support groups has been over a period able to understand his condition and come to realize that he is dependent on medication to function productively in his life. The Applicant realizes that without his antipsychotic medication, his relationships and day to day functioning can be negatively impacted. Because of his mental health diagnosis extended family support and a sense of belonging is essential for his ongoing mental health.
The Respondent agreed that the mental health facilities in Sudan were not the same standard as in Australia. There was however no evidence to support the contention on the Applicant’s behalf that health care facilities were “inadequate” nor that there is “very little mental health facilities”. Neither was there medical evidence that this would be “devastating and would lead to his psychological breakdown and escalating depression”. In any event, the Applicant’s mother gave evidence that she either supplies, or supplies the funds, for her mother’s cancer treatment. This suggests that some medical treatment, at least, would be available to the Applicant in Sudan, and given his mother’s apparent devotion to him, she may well fund his treatment.
It is reasonable to conclude that the Applicant would face some difficulty in adjusting to life in Sudan after an absence of over 10 years. This consideration weighs somewhat in the Applicant’s favour.
ADDITIONAL ‘OTHER’ CONSIDERATIONS
The ‘other considerations’ specified in paragraph 14 of the Direction are not exhaustive. However, I have not identified any additional ‘other considerations’ relevant to this case.
OVERALL ASSESSMENT OF THE APPLICANT’S CASE
A decision under s 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the cancellation: Gaspar v MIBP [2016] FCA 1166.
I have already explained the first primary consideration weighs heavily against the Applicant, while the second primary consideration counts to some extent in his favour. The third primary consideration counts firmly against him. The other considerations, when taken together, do not weigh in the Applicant’s favour. Having regard to the considerations in the Direction, and weighing up those that point in favour of visa cancellation against those that point in the opposite direction, I conclude that the Applicant’s application should be refused. As a consequence, I affirm the decision under review.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

..............................[sgd]..........................................
Associate
Dated: 29 June 2017

Date(s) of hearing: 13 and 14 June 2017

Date final submissions received: 27 June 2017

Solicitors for the Applicant: Mr F Nikjoo, AC Lawgroup

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore

[2017] AATA 995

29 June 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Standing

Date(s) of hearing:	13 and 14 June 2017
Date final submissions received:	27 June 2017
Solicitors for the Applicant:	Mr F Nikjoo, AC Lawgroup
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore