NRVC and Minister for Immigration and Border Protection (Migration)
[2017] AATA 295
•3 March 2017
NRVC and Minister for Immigration and Border Protection (Migration) [2017] AATA 295 (3 March 2017)
Division:GENERAL DIVISION
File Number: 2016/5683
Re:NRVC
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member CR Walsh
Date:3 March 2017
Place:Perth
The Tribunal affirms the decision under review.
........[Sgd]................................................................
Senior Member CR Walsh
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has “substantial criminal record” and does not pass the “character test” – primary considerations and other relevant considerations considered – decision under review affirmed
LEGISLATION
Migration Act 1958 – s 48A – s 82(2) - s 501 - s 501(3A) – s 501(6) – s 501(7) – s 501(7A) – s 501CA(4)
CASES
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Passells and Minister for Immigration and Border Protection [2016] AATA 1033
Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 102 ALR 19
Wills and Minister for Immigration and Border Protection (Migration) [2016] AATA 794SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction Under Section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member CR Walsh
3 March 2017
INTRODUCTION
NRVC seeks review of a decision of a Delegate of the Minister for Immigration and Border Protection (Minister), dated 28 September 2016, not to revoke the mandatory cancellation of NRVC’s Class CD Subclass 851 (Resolution of Status) visa pursuant to s 501CA of the Migration Act 1958 (Migration Act) because he was not satisfied that NRVC passed the “character test”, in s 501 of the Migration Act, or that there was another reason why the cancellation of NRVC’s visa should be revoked.
FACTUAL & PROCEDURAL BACKGROUND
NRVC is a 27 year old citizen of Sri Lanka. He is an ethnic Tamil and Hindu.
NRVC first arrived in Perth, Western Australia, on 2 January 2008 as a refugee without a valid visa, was refused immigration clearance and was taken into immigration detention that day.
On 4 January 2008, NRVC lodged an application with the Department of Immigration and Border Protection (Department) for a protection visa.
On 20 March 2008, NRVC was granted a Class XA Subclass 785 (Temporary Protection) visa.
On 29 September 2008, NRVC applied for a Class CD Subclass 851 (Resolution of Status) visa, which was granted on 25 October 2008.
On 7 January 2015, NRVC was formally notified that on 12 December 2014 the Minister had cancelled his Class CD Subclass 851 (Resolution of Status) visa under s 501(3A) of the Migration Act. This cancellation was a mandatory cancellation by the Minister under s 501(3A) of the Migration Act because NRVC did not pass the “character test” in s 501(6) of the Migration Act as he had a “substantial criminal record” (under s 501(7)(c) of the Migration Act) as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the State of Western Australia.
On 20 January 2015, NRVC lodged a “Request for Revocation of a Mandatory Visa Cancellation Under Section s 501(3A)” with the Department.
On 23 February 2015, NRVC was released from Wooroloo Prison and transferred to Yongah Hill Immigration Detention Centre where he is currently detained pending the outcome of this application.
On 28 September 2016, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the mandatory cancellation of NRVC’s visa (Reviewable Decision).
On 14 October 2016, NRVC applied to the Tribunal for review of the Reviewable Decision.
ISSUE
The sole issue for determination by the Tribunal is whether, having regard to the considerations set out in Direction No. 65 – Migration Act 1958 – Direction Under Section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), the discretion in s 501CA of the Migration Act should be exercised to revoke the mandatory cancellation of Mr NRVC’s visa.
CONSIDERATION
Mandatory visa cancellation
Section 501(3A) of the Migrations Act provides:
Decision of Minister or delegate – mandatory cancellation
501(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an office against a law of the Commonwealth, State or Territory.
(emphasis added)
Section 501(6) of the Migration Act provides:
Character test
501(6)For the purposes of this section, a person does not pass the “character test” if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(emphasis added)
Section 501(7)(c) of the Migration Act states:
Substantial criminal record
501(7)For the purposes of the character test, a person has a “substantial criminal record” if:
…
(d)the person has been sentenced to a term of imprisonment of 12 months or more.
(emphasis added)
It is not in dispute that NRVC does not pass the “character test” (in s 501(6) of the Migration Act because he has a “substantial criminal record” (as defined in s 501(7)(d) of the Migration Act) and, at the time his visa was cancelled, he was serving a “sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law” of the State of Western Australia (for the purpose of s 501(3A)(b) of the Migration Act) such that the Minister was required to cancel NRVC’s visa under s 501(3A) of the Migration Act.
Discretion to revoke mandatory visa cancellation – s 501CA
Section 501CA(4) of the Migration Act provides that the Minister “may” revoke a decision to cancel a visa under s 501(3A) of the Migration Act (referred to in s 501CA(4) of the Migration Act as the “original decision”) if:
(a) the person makes representation 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.
(emphasis added)
Direction 65 commenced on 22 December 2014 and is binding on all decision-makers (including the Tribunal on review) from that date. Direction 65 provides guidance to decision-makers on, inter alia, the exercise of the discretion in s 501CA(4) of the Migration Act to revoke the cancellation of visa which was mandatorily cancelled by the Minister pursuant to s 501(3A) of the Migration Act.
Paragraph 7(1) of Direction 65 provides guidance as to how the discretion in s 501CA is to be exercised. Paragraph 7(1) of Direction 65 states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
…
(4)Primary considerations should generally be given greater weight than the other considerations.
(emphasis added)
Paragraph 13(2) of Part C of Direction 65 sets out the primary considerations that a decision-maker must take into account in deciding whether to revoke the cancellation of a non-citizen’s visa. Paragraph 13(2) of Direction 65 states:
13. Primary considerations – revocation requests
…
(2)In deciding whether to revoke the cancellations of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Due consideration is to be given by decision-makers (including the Tribunal) to the “General Guidance” and “Principles” set out in the “Preamble” in paragraph 6 of Direction 65. In particular, paragraphs 6.2(1), 6.3(2) 6.3(3), 6.3(3), 6.3(4), 6.3(5)and 6.3(7) of Direction 65 provide:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
6.3 Principles
…
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizen’s, 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.
…
(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.
(emphasis added)
Primary considerations
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction 65 provides that decision-makers considering protection of the Australian community should be guided by paragraph 6.2(1) of Direction 65 (set out above in paragraph 22) and paragraph 13.1(2) of Direction 65 identifies the following two factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(emphasis added)
(a) Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 65 provides a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. Paragraph 13.1.1(1) of Direction 65 provides:
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
(c) The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeat offending;
…
A summary of NRVC’s Australian criminal history is set out in the Table below:
Court
Court
Date
Charges
Result
Perth Magistrates Court
11 October 2011
Unauthorised Driving by Learner Drivers; Road Traffic Act 1974; s. 50; Learner’s Permit
Fine: $100
Perth Magistrates Court
3 January 2012
Unauthorised Driving by Learner Drivers; Road Traffic Act 1974; s. 50; Learner’s Permit
Fine: $200
Perth District Court of Western Australia
26 April 2013
Conspired with another to commit an offence
Imprisonment: 18 mths conc min 12 mths from 17 February 2013 conditionally released forthwith upon entering recog $1000 to be of good behaviour for 12 mths
Perth District Court of Western Australia
26 April 2013
Possessed or controlled a thing with intent to dishonestly obtain or deal in personal financial information
Commonwealth order & recognisance – s. 20(A)(b) Placed on recognisance order of $1000 to be of good behaviour for 3 mths
Perth District Court of Western Australia
19 December 2013
Grievous Bodily Harm; Criminal Code; s. 297
Imprisonment: 2 yrs - Concurrent
Perth District Court of Western Australia
19 December 2013
Unlawful Wounding; Criminal Code; s. 301(1)
Imprisonment: 9 mths – Concurrent Total: 2 yrs imprisonment from 19 December 2013
The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously: paragraph 13.1.1(1)(a) of Direction 65
It is clear from the Table in paragraph 25 above that NRVC has committed a number of “serious” criminal offences since arriving in Australia.
In particular, on 26 April 2013 NRVC was charged with “possessing a thing with intent to honestly obtain or deal in personal financial information” and “conspiring with another to commit an offence” for which he was sentenced to 18 months imprisonment (of which he was required to serve a minimum term of 12 months). These convictions related to NRVC’s involvement in an EFTPOS skimming operation which was said to have occurred in early 2010.
Further, on 19 December 2013 NRVC was convicted of “grievous bodily harm” and “unlawful wounding” and sentenced to a term of imprisonment of two years and nine months respectively in relation to the crimes. These two offences are “violent” offences and, in accordance with paragraph 13.1.1(a) of Direction 65, are to be “viewed very seriously”. These charges arose out of NRVC’s involvement in an unprovoked attack on two men at their house on 19 August 2011. The Sentencing Remarks of Eaton DCJ, of the District Court of Western Australia, reveal that on the evening of 19 August 2011 NRVC attended the house of the two men with three other men, armed with a knife, with the intent to assault the two men. After arriving at the home of the two men, one of NRVC’s co-offenders struck each of the victims in the back of the head with a weight barbell, causing serious depression fractures of the men’s skulls. Although NRVC was not the offender who wielded the barbell, Eaton DCJ noted that NRVC had telephoned the men and threatened them on the day of the attack and then armed himself with a knife with the intention of causing harm to the men.
The nature and seriousness of NRVC’s offending (in relation to the “grievous bodily harm” and “unlawful wounding” offences) are reflected in the following Sentencing Remarks of Eaton DCJ:
…the two complainants, Mr X and Mr T, lived in August of 2011 at Avenue in Shelley. They did so with a number of others all, as I understand it, Sri Lankan men.
…
While at the front of the house [Mr T] got a call. The caller spoke to him in Tamil and said, “It’s NRVC speaking. Where are you? I’m going to come and hit you”. Mr T knew who NRVC was, recognizing the voice. That was NRVC.
…not long after, a small white sedan car appeared in xx Avenue and drove past their home…
…
…both Mr M and Mr SS came from the car…While…Mr X was looking at the road, he was hit on the head with a metal bar he said wielded by Mr M. He was knocked to the ground. Mr SS joined in once he was on the ground, kicking him in the lower vertebrae. The metal bar referred to was part of gymnasium equipment at the house.
…
NRVC and Mr G came from the car, the former carrying a knife…
All four men gathered around Mr T who’d gone to the assistance of Mr X lying on the footpath bleeding from his head. Mr M hit Mr T with the gym bar, the gymnasium bar to the back left-hand side of his head, knocking him down. He was momentarily unconscious. He tried to get up but couldn’t do so, feeling pain in his leg.
…in due course, an ambulance or ambulances were called to the house in xx Avenue and the two men, Mr T and Mr X were admitted that evening to Royal Perth Hospital. Mr T was found to have a comminuted compound depressed skull fracture, a subdural haematoma, two scalp lacerations down to the bone and an open compound fracture of his right tibia.
The skull injury was debrided, washed and raised in surgery. The right tibia fracture was fixed internally. He was given antibiotics and analgesia. Following a week in hospital, he walked without the aid of crutches for several months. Mr X was found to have a head wound which was repaired, he said, with sutures or stiches. He was only in hospital for a day or two.
…
All four men were involved in both counts to one degree or another, but it does seem clear that the significant injury to Mr X, being the head wound, was caused by Mr M with the gymnasium bar.
…
I accept that although [NRVC] was armed with a knife, there’s no direct evidence to support the proposition that he used it to inflict any injury on either of the complainants, with it. To my way of thinking, the medical evidence is equivocal, in the sense that, although there may be some injuries consistent with the use of a sharp object such as a blade, no firm conclusion can be drawn as to how it was and by whom those injuries, said to be inflicted with something like a blade, were inflicted.
He was not the principal offender in the unlawful wounding. He was, of course, an aggressor and acted in concert with others in terms of the overall incident. He does have prior convictions, in that he was convicted in this court following a trial by jury of two serious financial or property offences, for which he was imprisoned for 18 months, with a direction that he serve 12 months before being released on a recognisance.
…
Both complainants suffered serious injuries. Those suffered by Mr T were the more serious. Neither suffered a permanent injury, in that each has fully recovered. Neither is left with a permanent disability.
In each case however the blow to the head could have led to far more serious, even tragic, consequences for the victims.
Apart from the fact that a weapon was employed and that the attacks were on that afternoon completely unprovoked, it does seem to me that the fact that all four acted in concert adds to the seriousness of what happened.
I agree with the contention that attacks such as these must be dealt with by the imposition of terms of imprisonment...
…
One factor which stands out is that NRVC telephoned Mr T in advance threatening violence. He perhaps and an axe to grind, in that he had been an alleged victim of violence at the hands of Mr T. In addition, I am satisfied beyond reasonable doubt that he was carrying a knife when he stepped from the car and approached the house.
In his evidence at the hearing, NRVC said that on the night of the attack on 19 August 2011 he was just “dropping friends off” at the home of the two victims, that he got out of his car and entered the home of the two victims in order to stop a fight, he was not carrying a knife, he did not hit anyone and he did not telephone the victims earlier that day to threaten them. This evidence is inconsistent with the factual findings of Eaton DCJ, as set out above (in paragraph 29). It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based: Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 234; 103 ALR 19.
The “Statement of Facts, Issues and Contentions of the Applicant”, dated 23 December 2016 (NRVC’s SFIC), states:
Nature and Seriousness of the Conduct
6.NRVC accepts that he committed four serious crimes consisting of credit card fraud, conspiracy to commit an offence, unlawful wounding and grievous bodily harm…
Similarly, in both opening and closing, NRVC’s representative stated that NRVC accepts that he has engaged in “serious” offending of the kind identified in Direction 65. However, as stated above (in paragraph 30 above), in his evidence at the hearing NRVC presented the Tribunal with a different version of the facts, as regards the “grievous bodily harm” and “unlawful wounding” offences, to the facts set out in the Sentencing Remarks of Eaton DCJ. In the Tribunal’s mind, this suggests that NRVC has not yet accepted full responsibility for this offending, despite any submissions made by NRVC or on his behalf to the contrary and his numerous expressions of remorse. Rather, it seems that NRVC seeks to minimise his involvement in the offending.
NRVC’s SFIC further states:
Mitigating factors
7.We submit that the following factors be considered as mitigating circumstances to NRVC’s serious offending:
Circumstances surrounding the offences
8.With regards to the GBH and unlawful wounding convictions, it was noted by Eaton DCJ that NRVC was not the principal offender but had acted in concert with the other offenders. His Honour went on to remark it was NRVC's co-offender, Manantheran who actually committed the violence against the victim. Whilst this alone does not reduce his guilt, it can be made out that it was not NRVC who committed the act of wounding or GBH. In Western Australia, the maximum penalty for unlawful wounding and GBH is 5 years and 10 years imprisonment respectively. However, the actual sentence given by the sentencing judge was two years - with an eligibility for parole after 1 year. This is at the lowest end of the sentencing spectrum given the scope of sentencing available to the judge.
Supporting evidence: Sentencing remarks of Eaton DCJ (G-Docs pg. 321 and 325)
Sentencing remarks of Eaton DCJ (G-Docs pg. 315 para. 6)
9.With regards to the credit card fraud convictions, NRVC admits by his own words that this was a stupid mistake and that he was caught up with criminals he thought were friends. He has expressed remorse for his actions.
Supporting evidence: Statement of NRVC (Pages 348-350 of G-Docs).
Age
10.NRVC was only 20 years old at the time of his first offence and 23 years of age when sentenced to his latest jail term. The Australian community tolerates young people making stupid mistakes. NRVC's mistakes were indeed stupid and grave. He was easily influenced by older peers and succumbed to pressure from them to join into criminal enterprise using credit cards.
Supporting evidence: Statement of NRVC (Pages 348-350 of G-Docs).
Personal Circumstances
11.NRVC's personal circumstances leading up to the credit card fraud, unlawful wounding and GBH are significant in terms of what motivated him to behave as he did. These are dealt with in turn below:
Arrival as a refugee
12.NRVC arrived to Australia in 2008 as an unauthorised air arrival. He later applied for a protection visa which was granted to him on the basis that he was found to have protection obligations owing to him. It is submitted that NRVC suffered a number of traumatic experiences as a teenager and young adult. These include kidnapping on three occasions, detention by the EPDP, beatings with a rod and attempted conscription into a rebel army. It is submitted that some weight ought to be placed on the fact that he endured these traumatic experiences in his formative years.
Supporting evidence: Statement of NRVC (Pages 348-350 of G-Docs).
(emphasis added)
Whilst the Tribunal acknowledges that:
·NRVC was a young man at the time of his offending;
·his personal circumstances preceding his offending were challenging; and
·his formative years in Sri Lanka, prior to moving to Australia, were traumatic;
as set out in the “Principles” in paragraph 6.3 of Direction 65 (refer to paragraph 22 above), Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia and the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia and that a non-citizen (like NRVC) who has committed a serious crimes of a violent nature (such as “grievous bodily harm” and “unlawful wounding”) should generally expect to forfeit the privilege of staying in Australia.
The sentence imposed by the Court – paragraph 13.1.1(1)(c) of Direction 65
The seriousness of NRVC’s EFTPOS skimming, grievous bodily harm and unlawful wounding offences is reflected in the sentences imposed by Eaton DCJ in respect of those offences. NRVC was sentenced to 18 months imprisonment for EFTPOS skimming offences and terms of two years and nine months for the “grievous bodily harm” and “unlawful wounding” offences, respectively (to be served concurrently). A term of imprisonment is a sentence of last resort and is usually only reserved for offending that is viewed as serious: Passells and Minister for Immigration and Border Protection [2016] AATA 1033 at [38]. That is, where a court sentences an offender to a term of custodial imprisonment (as was the case here), such a sentence must be viewed as a reflection of the objective seriousness of the offence involved.
Section 501(7A) of the Migration Act states:
Concurrent sentences
501(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example:A person sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of these terms is 6 months.
Applying s 501(7A) of the Migration Act to NRVC’s 2 year and 9 month concurrent sentences for his “grievous bodily harm” and “unlawful wounding” offences, NRVC was effectively sentenced to a total term of 5 years and 6 months. This is not an insignificant sentence and is a clear reflection of the seriousness of NRVC’s offending.
The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; The cumulative effect of the repeated offending – paragraph 13.1.1(d) and (e) of Direction 65
NRVC has demonstrated a significant disregard for Australian law, in circumstances where, within approximately two years of being granted a visa, he committed serious crimes and his offending has increased in seriousness. NRVC’s first crime was a serious financial crime (i.e. EFTPOS skimming) and his later crimes (i.e. “grievous bodily harm” and “unlawful wounding”) were serious and violent crimes.
(b) Risk to the Australian community
Paragraph 13.1.2 of Direction 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serous conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken.
NRVC’s SFIC states that, for the following reasons, should his visa be reinstated, he poses no further risk to the Australian community and that the risk of recidivism is low:
Evidence of Reform
14.NRVC submits that he has shown strong signs of reform and rehabilitation and has taken positive steps to stay that way permanently. For example:
a)The successful completion of a number of voluntary programs in prison. These include a Food Safety and Hygiene Training program, Life Skills Intervention Program, Career Development Workshop, Life Skills Re-Entry Program, Think First Cognitive Skills Program, Workshop for Training in Non-Violence Program, and Medium Intensity Violence Program (14 weeks).
Supporting evidence: G-Docs pages 352-362
b)Remorse. The letter to the Prisoner's Review Board dated 17 October 2014, NRVC, states that he is 'extremely remorseful for this behaviour' and, further, that he understands the reasons for his past offending and how to employ newly learned strategies to prevent relapses and future offending. The Prisoner's Review Board accept NRVC's reform, rehabilitation and remorse and he was subsequently released from prison on parole on time (being after one year).
Supporting evidence: Letter to 'Prisoners Review Board' dated 17 October 2014 (G-Docs 362-370)
c)Employment Prospects - NRVC has indicated that he wishes to continue working and shows an ambition to improve his position in life and 'get somewhere.' This is consistent with normal aspirations of the Australian community and further demonstrates a significant - and positive - pathway to rehabilitation. It is further noted that he has worked previously and in steady employment as a forklift operator, general hand and as a storeman. Good references to his work ethic are also made. Should NRVC's visa be re-instated he has a job to go to at EKS Car Repairs.
Supporting evidence: Personal Statement of NRVC (Pg.346 of G-Docs)
Work reference from Frankland River Olive Company (Pg. 380 of G-Docs) Letter from EKS Car Repairs (Pg. 378 of G-docs)
Letter from Paramoharan Thangarajah (Pg. 383 of G-Docs)
d)Behaviour in prison/immigration detention. NRVC has behaved well in prison and in immigration detention with no known incidents being reported.
Supporting evidence: Immigration Report (Pg. 438-440 G-Docs).
e)Having somewhere to go - Should NRVC's visa be reinstated, he has somewhere to go in terms of accommodation and being off the streets being his uncle's place in Sydney.
Supporting evidence: Letter from Mr S (pg 390 of G-Docs).
(emphasis added)
The Tribunal acknowledges that the evidence establishes that NRVC:
·he was young when he committed the relevant offences and he is now more mature;
·has successfully completed numerous rehabilitation courses whilst in prison which have, among other things, taught him how to manage his feelings, how to handle problematic situations, how to say “no” to people and the importance of a balanced lifestyle and of both mental and physical health;
·he has the support of family (namely his uncle (Mr S), aunt and cousins) in Sydney, New South Wales if his visa is reinstated and he is released into the community;
·has the support of his current girlfriend (Ms D) and her family if his visa is reinstated and he is released into the community;
·has the support of his friend (Mr A) and his partner if his visa is reinstated and he is released into the community;
·has the support of the Tamil community and various church groups if his visa is reinstated and he is released into the community, noting that a significant number of statements in support of NRVC were provided from members of the Tamil community and various church groups in these proceedings;
·has demonstrated good behaviour in both prison and detention;
·has expressed remorse for his offending on numerous occasions; and
·he no longer associates with the people that were a “bad influence” on him at the time of his offending (i.e. some members and the Captain of his former cricket team).
However, based on the following evidence, the Tribunal considers that there is a real and unacceptable risk that NRVC will likely reoffend or be involved in further criminal or other serious conduct if he is permitted to remain in Australia:
·the fact that NRVC began offending shortly (some 18 months) after arriving in Australia;
·NRVC’s extensive criminal history in Australia;
·the increasing seriousness of NRVC’s offending;
·the fact that throughout his time in Australia (i.e. nine years) NRVC has been supported by community and church groups but these networks have failed to prevent NRVC from offending; and
·although NRVC has expressed remorse, his oral evidence at the hearing reveals that he has not yet accepted full responsibility for his “grievous bodily harm” and “unlawful wounding” offences for the reason that he presented the Tribunal with a different version of facts to the facts as found by the Sentencing Judge. It would appear that he seeks to minimise his involvement in the crimes committed. The Tribunal considers that his casts doubt on his expressions of remorse: refer to paragraph 32 above.
NRVC’s involvement in two serious and violent crimes (i.e. “grievous bodily harm” and “unlawful wounding”) causes the Tribunal considerable disquiet. The Tribunal considers that the Australian community should not be expected to tolerate any risk of future harm and that any risk that such serious conduct may be repeated by NRVC is, in the Tribunal’s view, unacceptable: paragraph 13.1.2(1) of Direction 65.
For the above reasons, the Tribunal finds that the first primary consideration (i.e. the “Protection of the Australian community”) weighs strongly in favour of non-revocation of the mandatory cancellation of NRVC’s visa.
(ii) Best interest of minor children in Australia
The second primary consideration listed in Direction 65 is the “Best interests of minor children in Australia affected by the decision” and paragraph 13.2(1) of Direction 65 states:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
It is common ground that the second primary consideration (i.e. “Best interests of minor children in Australia”) is irrelevant in NRVC’s case.
(iii) Expectations of the Australian Community
The third primary consideration listed in paragraph 13(2) of Direction 65 is the “expectations of the Australian Community”. Paragraph 13.3 of Direction 65 provides:
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
NRVC’s SFIC states the following in relation to the expectations of the Australian community:
Expectations of the Australian Community
16.NRVC's past behaviour criminal behaviour was serious and involved the violation of Australian law. However, based on the mitigating factors listed above being NRVC's age, good prospects of reform and rehabilitation, work prospects and family ties (below), we submit that the Australian community would afford a person in NRVC's case a second chance and, further that NRVC has proven that he can be trusted and released back into the Australian community.
The Tribunal refers to the stated principles in paragraph 6.3 of Direction 65 (refer to paragraph 22 above) and, in particular, the principle that the Australian community expects the Australian Government to cancel the visas of non-citizens, like NRVC, who commit serious (and, in particular, violent) crimes and such persons should generally expect to forfeit the privilege of staying in Australia.
Given NRVC’s serious criminal history in Australia, the most recent and serious involving an unprovoked violent attack with a weapon, the Tribunal considers that the Australian community would expect that he should not hold a visa and that his visa should be cancelled. In this regard, the Tribunal refers, with approval, to paragraph 45 of DP McDermott’s decision in Wills and Minister for Immigration and Border Protection (Migration) [2016] AATA 794 (Wills), as follows:
45.Paragraph 11.3(1) of the Direction provides that visa refusal may be appropriate because the nature of the offences committed are such that the Australian community would expect that the person should not be granted a visa. I consider that the Australian community would expect that someone who has committed the offence of assault occasioning bodily harm in circumstances where that person was unprovoked would have their visa application refused.
Although DP McDermott’s above comments in Wills were made in the context of a refusal by the Minister to grant a non-citizen a visa, the Tribunal considers that they equally apply in the context of considering whether the mandatory cancellation of a visa should be revoked. That is, the Tribunal considers that the Australian community would expect someone (like NRVC) who has committed a violent offence, like grievous bodily harm and unlawful wounding, in circumstances where that person was unprovoked, should have their visa cancelled and not expect to have it reinstated.
For the above reasons, the Tribunal finds that the third primary consideration (i.e. the “Expectations of the Australian community”) weighs strongly in favour of non-revocation of the mandatory cancellation of NRVC’s visa.
Other considerations
Paragraph 14(1) of Direction No 65 states:
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant, including. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australia business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
(a) International non-refoulement obligations
Paragraph 14.1(1) of Direction 65 states:
14.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcible return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the OCCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision makers should follow the tests enunciates in the Act.
(emphasis added)
On 11 December 2015, an International Treaty Obligations Assessment (ITOA) of NRVC was conducted which found that Australia did not have non-refoulement obligations in respect of NRVC (2015 ITOA). The 2015 ITOA states:
Finding on Non-Refoulement Obligations Under CAT and ICCPR
I find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the claimant being removed from Australia to Sri Lanka, there is a real risk that the non-citizen will suffer significant harm.
Therefore, I find that the claimant, NRVC, is not a person in respect of whom Australia has non-refoulement obligations under the CAT or ICCPR.
The Department later sought comment from NRVC about the findings in the December 2015 ITOA.
Following receipt of comments from NRVC (dated 16 February 2016) the Department carried out a further ITOA, on 29 September 2016, taking into consideration the additional information provided by NRVC (2016 ITOA). The 2016 ITOA again found that Australia did not have non-refoulement obligations in respect of NRVC. The September 2016 ITOA states:
Australia’s non-refoulement obligations under the CAT and ICCPR arise where there are substantial grounds for believing that, as a necessary and forseeable consequence of a person being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm.
A person will suffer significant harm if:
(a)the person will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on the person; or
(c)the person will be subjected to torture; or
(d)the person will be subjected to cruel or inhuman treatment or punishment; or
(e)the person will be subjected to degrading treatment or punishment.
…
DOES THE HARM AMOUNT TO SIGNIFICANT HARM?
Evidence and Reasons
NRVC fears being killed and/or being subject to arbitrary arrest and detention if he returns to Sri Lanka. I am satisfied that these fall within the above definition of significant harm.
Finding
I find that the harm claimed by the claimant is significant harm pursuant to subsection 36(2A) of the Act.
ARE THER SUBSTANTIAL GROUNDS FOR BELIEVING THAT THERE IS A REAL RISK OF SIGNIFICANT HARM?
Evidence and Reason
…
For reasons set out above under the “Refugee Assessment” component of the assessment, I have found that NRVC does not face a real chance of serious harm if he were to return to Sri Lanka. NRVC has not presented any other claims aside from those already discussed in this assessment. Based on the same reasoning, and with regard to the threshold for real risk being equal to that of real chance, I am not satisfied there are substantial grounds for believing that, as a necessary and forseeable consequence of NRVC being removed from Australia to Sri Lanka that there is a real risk that NRVC will face significant harm.
ASSESSMENT FINDING OF NON-REFOULEMENT OBLIGATIONS UNDER CAT AND ICCPR
In the present case, I am not satisfied that the claimant has a real chance of being subject to significant harm should they be returned to Sri Lanka.
(emphasis added)
As contended by the Minister, it is unnecessary for the Tribunal to determine whether non-refoulement obligations are owed to NRVC having regard to the paragraph 14.1(4) and (5) of Direction 65, which provide:
(4)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 purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determined that section 48A does not apply to them – sections 48A and 48B of the Act refer).
Although NRVC was originally granted a Class XA Subclass 785 (Temporary Protection) visa (on 20 March 2008), this ceased to have effect on 25 October 2008 when he was granted a Class CD Subclass 851 (Resolution of Status)) pursuant to s 82(2) of the Migration Act (being the visa relevant to this application).
Therefore, despite the fact that NRVC previously had a temporary protection visa, he is not subject to a bar under s 48A of the Migration Act because that temporary protection visa was never “cancelled” and he has never been refused a protection visa. Rather, NRVC’s temporary protection visa ceased to have effect by operation of s 82(2) of the Migration Act, which provides that a substantive visa ceases to be in effect if another substantive visa comes into effect. That is, the “cessation” of NRVC’s temporary protection visa on 25 October 2008 (as a result of him being granted a Class CD Subclass 851 (Resolution of Status) visa) does not enliven a bar under s 48A of the Migration Act.
Even if the Tribunal were to find that NRVC was barred from making an application for another protection visa in the future, the Tribunal notes paragraph 14.1(2) of Direction 65, which provides:
(2)The existence of a non-refoulement obligation does not preclude no-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(b) Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 65 provides:
14.2Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens who have a right to remain in Australia indefinitely).
NRVC’s SFIC provides that considerable weight should be given to his ties to Australia for the following reasons:
19.At time of writing, NRVC has been in Australia for eight years. He is now 27 years old. Many of NRVC's extended family live in Australia including four uncles and aunts, one nephew and niece and seven cousins.
20.It is submitted that the effect of non-revocation would cause emotion hardship to his family in Australia, particularly his partner [Ms D], uncle [Mr S] and 'little brother' [Mr A].
21.NRVC has also built other social ties in Australia and contributed positively to the community. For example, he is an avid cricketer, and has assisted new migrants with their integration and settlement to Australia. NRVC also assumed the role of an older brother for Mr A ensuring that he attended school and received an education.
Supporting evidence: Letter from Mr K (pg 390 of G-Docs) and attached Personal Statement of NRVC (Pg.346 of G-Docs)
Personal Statement of Mr S (attached)
Letter from Mr J (Pg. 376 of G0Docs)
Personal Statement of Ms D All other supporting statements
NRVC arrived in Australia in 2008. He was arrested and charged and detained in approximately 2012 in relation to offences that were committed by him within two years of arriving in Australia in early 2010. Applying paragraph 14.2(1)(a) of Direction 65 (refer to paragraph 62 above), less weight should be given to the strength, nature and duration of a non-citizen’s ties with Australia in circumstances where, as is the case here, the non-citizen started offending soon after arriving in Australia.
NRVC has been incarcerated in Australia since 2012, first in prison and later in immigration detention. It follows that NRVC has spent the majority of his time in Australia, and his adult life, incarcerated. In such circumstances, it cannot be said that NRVC has spent a considerable time in the Australian community or that he has demonstrated any real positive contribution to Australian society: refer to paragraph 14.2(1)(b) of Direction 65 in paragraph 62 above.
Whilst the Tribunal acknowledges that a significant number statements in support of NRVC have been provided by members of the Tamil community and various church groups, indicating that NRVC has strong and enduring ties to the community, the Tribunal places little weight on this evidence in circumstances where such support failed, in the past, to curtail NRVC’s serious and violent offending.
At the hearing, evidence was given by NRVC’s girlfriend of approximately 12 months, Ms D. Ms D is an Australian citizen and student. In summary, Ms D’s evidence before the Tribunal was as follows:
·she had heard of NRVC about five years ago through a school friend (before NRVC went to prison) but she never really knew him well until they commenced dating, about 12 months ago, whilst NRVC has been in detention;
·in the past year, since they commenced dating, she has visited NRVC in detention four times and she telephones him every day;
·if NRVC is able to remain in Australia, they plan to move in together, get engaged within a year and married within two years;
·if, however, NRVC is unable to remain in Australia, and must return to Sri Lanka, she will not join him in Sri Lanka as she does not want to leave her family in Australia and live in country with safety concerns; and
·in her view, NRVC no longer associated with the “wrong people” who got him into trouble and he is a changed man who has learnt his lesson.
The Tribunal places little weight on the evidence concerning NRVC’s relationship with Ms D since he has been in detention. Whilst the Tribunal acknowledges that NRVC’s removal from Australia may result in some emotional hardship for Ms D, it cannot be said, based on the evidence before the Tribunal, that the relationship between them is sufficiently strong and enduring to outweigh the first and third primary considerations in Direction 65 discussed above.
At the hearing, evidence was also given by NRVC’s uncle, Mr S, who lives in Sydney, New South Wales. Both NRVC and Mr S explained in their evidence that after NRVC first arrived in Australia on 2 January 2008 he moved from Perth to Sydney and lived with his uncle, aunt and cousins for approximately two years. NRVC said that during this period he worked and studied and did not get into any trouble with the law. NRVC also said that his uncle and a cousin had visited him in prison and that his aunt and uncle had visited him in detention. Mr S said that he had been in contact with NRVC at least once a week while he was in prison and detention. Mr S said that, in his view, NRVC had changed and that he now understood that, in the past, he had been moving in the “wrong crowd” and was used by them. Mr S further said that he and his wife and children presently had no plans to relocate from Sydney to Perth.
Whilst the Tribunal acknowledges that NRVC’s removal from Australia may cause some emotional hardship for NRVC’s uncle (Mr S), aunt and cousins, that consideration does not outweigh the first and third primary considerations in Direction 65 discussed above.
The Tribunal places little weight on the evidence of NRVC’s uncle, Mr S, particularly in circumstances where they have no intention of relocating from Sydney to Perth to support NRVC if he is able to remain in Australia and where NRVC’s immediate family (i.e. his parents and three sisters) live in Sri Lanka. Presumably, NRVC would have the support of his immediate family if he was unable to remain in Australia and was returned to Sri Lanka.
NRVC’s friend, Mr A, also gave evidence at the hearing. Mr A is an Australian citizen who was born in Sri Lanka. Mr A said that he has known NRVC for about 14 years and that he lived with NRVC for about one and a half years before NRVC went to prison. Mr A described the way in which NRVC cared for him like an older brother during that period. Mr A said that if NRVC was able to remain in Australia he is welcome to stay with him and his partner for as long as necessary and that he would give him a job.
On balance, the Tribunal finds that the strength, nature and duration of NRVC’s ties to Australia are strongly outweighed by the first and third primary considerations in Direction 65 discussed above.
(c) Impact on Australia business interests
Paragraph 14.3(1) of Direction 65 states “an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
It is common ground that there would be no known impact on Australian business interests should the mandatory cancellation of NRVC’s visa not be revoked.
(d) Impact on victims
It is common ground that there would be no known impact on any victims should the mandatory cancellation of NRVC’s visa not be revoked.
(e) The extent of any impediments
Paragraph 14.5(1) of Direction No 65 provides:
14.5 Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintain basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
NRVC’s SFIC states the following in relation to the extent of impediments if removed from Australia:
25.NRVC submits that removal to his home country of Sri Lanka would place him into significant danger. Despite the findings of the International Treaties Obligation Assessment, he maintains that his father's past affiliation with the Tamil National Alliance political party continues to put his life in danger. NRVC claims that his father continues to receive threats and further fears that his removal will put him in danger of kidnap, torture and imprisonment.
Supporting evidence: All supporting statements especially at 373-431 of the G-Docs.
(emphasis added)
As stated above, the 2015 ITOA and the 2016 ITOA both found that there is no real risk that NRVC will suffer significant harm if he is removed from Australia and that Australia does not owe any non-refoulement obligations to NRVC. Further, NRVC is not barred from applying for a protection visa in the future: refer to paragraphs 54 to 61 above.
As stated above, all of NRVC’s immediate family (parents and three sisters) live in Sri Lanka and presumably he would have their support in Sri Lanka if he is unable to remain in Australia.
As a citizen of Sri Lanka, NRVC will have access to the same services as any other citizen of Sri Lanka. Further, NRVC would not face any language impediments if removed from Australia to Sri Lanka.
Accordingly, the Tribunal finds that there are no impediments to NRVC’s removal that weigh in favour of revoking the mandatory cancellation of his visa.
CONCLUSION
NRVC’s SFIC states the following in conclusion:
26.The crimes NRVC has committed were serious but, in line with Government and community expectations, NRVC has proven that he deserves a second chance in this country. NRVC has shown strong evidence of reform and has demonstrated that he is rehabilitated himself. Given his age and having now paid his debt to society, he deserves a second chance.
27.Moreover, the risk to the Australian community is low because his successful rehabilitation means that he is unlikely to re-offend following his release. All supporting statements confirm that NRVC has shown remorse, is a different person to the one who went into prison and that a strong support network exists for him outside of prison. For example he already has the opportunity to return to his old job and somewhere to be accommodated.
28.NRVC has resided in Australia for almost 9 years which is all of his adult life. His family and social ties are clearly strong to this country.
29.There is also evidence to suggest that NRVC faces the prospect of harm if he is removed back to Sri Lanka. By his own words and those of a number of witnesses (including witnesses who have provided signed statements in the G-Docs) suggest that the threat of harm may be present.
30.On this basis, it is submitted that on the weight of the evidence the Tribunal exercise its discretion to set aside the decision under review and re-instate NRVC's Class CD Subclass 851 Resolution of Status visa.
Having regard to NRVC’s extensive criminal history and, in particular, the seriousness and violent nature of the offences for which he was most recently convicted, the Tribunal finds that there is a real and substantial risk that NRVC will reoffend and the protection of the Australian community and the expectations of the Australian community weigh strongly in favour of the non-revocation of the mandatory cancellation of NRVC’s visa. That is, the first and third primary considerations in Direction 65 strongly outweigh the other considerations in favour of the cancellation decision being revoked.
DECISION
For the above reasons, the Tribunal affirms the Reviewable Decision.
I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
.........[Sgd]...............................................................
Administrative Assistant
Dated: 3 March 2017
Date of hearing: 27 February 2017 Representative for the
Applicant:Mr M Udall Solicitors for the Applicant:
Martin Udall & Associates
Representative for the
Respondent:Mr A Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Statutory Construction
-
Natural Justice
-
Remedies
0
6
0