PBPZ and Minister for Home Affairs (Migration)
[2019] AATA 18
•14 January 2019
PBPZ and Minister for Home Affairs (Migration) [2019] AATA 18 (14 January 2019)
Division:GENERAL DIVISION
File Number: 2018/6321
Re:PBPZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member R. Cameron
Date:14 January 2019
Place:Melbourne
The Tribunal sets aside the reviewable decision of 19 October 2018 and substitutes a decision that the mandatory cancellation of the Applicant’s visa on 22 August 2017 is revoked.
...................[sgd].....................................................
Senior Member R. Cameron
Catchwords
MIGRATION – Mandatory cancellation of visa – Whether the mandatory cancellation should be revoked – Consideration of Ministerial Direction no. 65 – Decision set aside and remitted
Legislation
Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Sex Offenders Registration Act 2004 (Vic)Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
R v Verdins (2007) 16 VR 269
Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Senior Member R. Cameron
14 January 2019
INTRODUCTION
The Applicant is a citizen of Myanmar. He arrived in Australia in August 2008 when he was 42 years of age. He has resided in Australia ever since.
On 22 August 2017, the Applicant’s Class XB Subclass 200 Refugee visa was cancelled pursuant to the provisions of section 501(3A) of the Migration Act 1958 ("the Act").
A delegate of the Minister for Home Affairs (“the Respondent”) on 19 October 2018 decided not to revoke the decision to cancel the Applicant’s visa ("the reviewable decision"). He has applied to this Tribunal for review of that decision.
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(e) of the Act provides that a person does not pass the character test if a court in Australia or a foreign country has convicted such person of one or more sexually based offences involving a child.[1]
[1] The language of section 501(6)(e) is referred to in its entirety. It also provides that such a person does not pass the character test if a court in Australia or a foreign country has found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 31 October 2018.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499 (“the Direction”).
Direction No. 65
It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of the 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.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained 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.
…
(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.
Part C of the Direction provides guidance for revocation decision-making and contains a number of primary and other considerations. Finally, paragraph 8(4) of the Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
The Applicant has conceded that he does not pass the character test.[2]
[2] This concession is made in paragraph 3 of the Applicant's Statement of Issues, Facts and Contentions. The concession was also made on his behalf in a letter of 31 January 2018 in support of his application for revocation of the mandatory cancellation of his visa. This concession in that letter is to be found at page 65 of the G documents.
Therefore, under section 501CA(4)(b) of the Act, the issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.[3]
[3] Section 501CA(4)(b)(ii) of the Act.
THE PROCEDURE BEFORE THE TRIBUNAL
The parties to this application, by consent, agreed to dispense with the hearing and have the matter determined on the papers pursuant to section 34J of the Administrative Appeals Tribunal Act 1975. The agreement of the parties to this course was due to the fact that the Applicant suffers from several medical conditions, the effect of which were to preclude him from giving evidence orally at a hearing. More will be considered later in these reasons about the Applicant’s medical conditions.
THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL
The following documentary evidence was tendered before the Tribunal:
(a)The “G” documents;
(b)Annexures A to F[4] to the Applicant’s Statement of Issues, Facts and Contentions; and
(c)Annexures A to C to the Applicant’s further Statement of Issues, Facts and Contentions-“Additional Information”.[5]
[4] These annexures were as follows:
A.A report from Consultant Psychiatrist Dr Peter Wigg dated 22 December 2017;
B.A bundle of emails passing between the Asylum Seeker Resource Centre and a Case Officer of the Respondent;
C.A Neuropsychology Assessment Report of the Applicant prepared by Dr Judy Tang dated 17 June 2018;
D.A document entitled "Country Information-The Treatment of the Chin and other Ethnic Minorities in Burma";
E.A letter from Dr Christopher Higgins concerning the Applicant dated 25 January 2018 with attached pathology requests; and
F.Several references in support of the Applicant.
[5] These Annexures were as follows:
A.Several certificates headed "Notice of Order Made" from the Magistrates’ Court of Victoria;
B.Several emails passing between the Applicant's representatives in the Court Coordinators Office of the Ringwood Magistrates’ Court concerning access to transcript, sentencing remarks and criminal files.
C.A letter from Olivia Nichols, Clinical Consultant Odyssey House Victoria concerning assessment and treatment options for the Applicant
The Respondent also filed and served a Statement of Facts, Issues and Contentions.
It should be observed that in the G documents there were, amongst other documents;
(a)The extensive submissions made on the Applicant’s behalf to the Respondent dated 31 January 2018;
(b)A statutory declaration made by the Applicant dated 31 January 2018;
(c)The psychiatric report of Dr Peter Wigg dated 22 December 2017, referred to earlier;
(d)A medical report of Dr Christopher Higgins dated 21 January 2018;
(e)A further letter from Dr Christopher Higgins dated 30 January 2018;
(f)A medical report of Dr Jon Cook dated 3 April 2018; and
(g)Several other documents relevant to the Applicant’s application for revocation of the mandatory cancellation of his visa.
THE APPLICANT’S BACKGROUND IN MYANMAR
The Applicant is an ethnic Chin and practising Christian from Myanmar[6]. He has had little formal education, having completed only five years of primary school in Myanmar. He speaks the Haka Chin language, minimal Burmese and no English.
[6] In some of the material this nation is referred to by its previous name of “Burma”.
He and his family had opposed the military regime in Myanmar for many years. From a comparatively early age, he was forced into labouring for the Myanmar military, initially as a porter, later moving into night-time guard duties.
Subsequently, he supported the Chin National Army (“CNA”). The military regime apparently suspected that the Applicant was supporting the CNA. In 1999 he was arrested by soldiers, taken to a local military base and severely beaten in the face and then subsequently beaten all over his body.
Further acts of brutality were committed against him by the ruling Myanmar military as follows:
(a)Being hung upside down and forced to inhale the fumes of burnt chillies;
(b)Hung up by handcuffs to a cross;
(c)Stabbed slowly in the chest;
(d)Burnt with cigarettes;
(e)Subjected to water drop torture for the purpose of depriving him of sleep;
(f)Suffered electrocution to his ears;
(g)Had his shins burnt with hot iron rods;
(h)His feet were bound in timber locks at night;
(i)Hung upside down;
(j)Forced into rock breaking.
The medical report of Dr Christopher Higgins of 21 January 2018[7] identifies a number of scars on the Applicant’s body from where he was tortured and provides details of those scars. The observations made by Dr Higgins are worthy of repetition in these reasons, they were:
(a)Centre of chest. A round scar of 1-2 cm in diameter consistent with a knife injury. Dr Higgins opines that apparently a knife was slowly introduced through the skin and twisted around in order to inflict maximum pain.
(b)Front of Left Thigh. There is a large linear broad scar present consistent with a metal object being used to abrade the skin.
(c)Front of both shins. Dr Higgins observed ragged scars centrally on both sides where metal objects were “rolled” over the skin. His legs were apparently held apart with a piece of wood which was tied around both lower legs. On the right side he required an operation to relieve the swelling resulting from such torture and the operation scars contribute to the scarring from the trauma.
(d)Back of heels. There are faint scars on the back of both heels apparently caused when the Applicant was tied with rope and hung upside down.
[7] Page 89 of the G documents; Dr Higgins is a vastly experienced and reputable general practitioner.
Dr Higgins described the degree of physical torture sustained by the Applicant as reflected in the scars that he observed on him.
He was held in custody for five years and three months. He was only released from custody after the intervention of the International Red Cross.
Following his release from custody, he was in a very weak state from the torture and deprivation that he had suffered during that time in custody. Further, he stated he did not feel safe remaining in Myanmar and made a decision to flee the country because he believed he was in danger of being arrested again by the Myanmar military.
The Applicant made his way firstly to Thailand and then Malaysia. He remained in Malaysia for approximately two and a half years before a Chin friend connected him with the United Nations High Commissioner for Refugees (“the UNHCR”). Eventually, he was accepted for resettlement in Australia.
THE APPLICANT’S HISTORY OF OFFENDING
As observed earlier the Applicant arrived in Australia in August 2008. His first recorded offence (as noted in the National Police Certificate which was included in the G documents) was on 23 May 2012 for being drunk in a public place.
The Applicant’s last recorded convictions contained in the National Police Certificate are dated 12 October 2017 which were for being drunk in a public place, drunk and disorderly in a public place and contravening a condition of bail. He was convicted and discharged for these offences.
Each offence recorded on the National Police Certificate will not be repeated in these reasons. However, several things do emerge.
Approximately 26 offences are recorded involving drunkenness. It is apparent from the material that the Applicant has a significant problem with his alcohol dependency. This will be considered later particularly in the context of the several medical reports that were tendered in evidence in this matter. Indeed, it is apparent that almost all of his offending has been precipitated by excessive consumption of alcohol. More often than not, it has been his public displays of drunkenness which are brought to the attention of the police.
The Applicant has also been found to have offended by either failing to answer bail, contravening a condition of his bail or failing to comply with reporting obligations imposed as a condition of such bail. These offences amounted to approximately 16 in total.
There are an additional two convictions recorded in September 2014 and October 2015 against the Applicant for loitering in a public place frequented by children. There is scant evidence concerning this offending. The convictions are recorded in the National Police Certificate. The conviction for loitering in September 2014 was at the Melbourne County Court. That charge was dealt with in addition to two charges of contravening a condition of bail and three charges of being drunk and disorderly in a public place. An aggregate sentence was imposed of 41 days imprisonment. The conviction for loitering in October 2015 was heard at the Ringwood Magistrates’ Court together with one charge of being drunk and disorderly in a public place and for charges of failing to comply with reporting conditions. The charge of being drunk and disorderly was proven and dismissed under section 76 of the Sentencing Act 1991. The convictions for failure to comply with reporting conditions together with the loitering attracted an aggregate sentence of six days imprisonment. No sentencing remarks or other material concerning these matters are before the Tribunal.
The only other evidence before the Tribunal concerning this offending is contained in paragraph 63 of the Applicant’s Statutory Declaration made on 31 January 2018. In that Statutory Declaration, he states that he remembers being forbidden from attending railway stations and “not being allowed to go to places where women and girls are”. He stated that when he had details of his criminal record explained to him he did understand what he had done and opined that he must have been drunk at a place where there were children. He stated: “I don’t remember where or when this happened.” The Applicant’s contention that he must have been drunk when he was apprehended for loitering is consistent with the fact that, at the same time as being charged with loitering, in both cases he was also charged with being drunk and disorderly in a public place.
Finally, and most critically there is one conviction on 25 October 2012 for indecent assault of a child. The circumstances of this offending will be addressed in more detail subsequently. However, it should be noted at this stage that the Magistrates’ Court ordered that the Applicant was released with conviction and the matter adjourned to the Ringwood Magistrates’ Court one year later, upon him giving an undertaking to be of good behaviour during the period of adjournment. He was also required to obey all lawful directions of a nominee of the Salvation Army Eastcare. Additionally, he was placed on the Sex Offenders’ Register for a period of eight years under the provisions of the Sex Offender Registration Act 2004.
The indecent assault for which the Applicant was convicted occurred on 23 March 2012 on a platform at the Box Hill train station. The precise details of the offending are contained in a statement of the victim made on 26 March 2012.[8]
[8] The statement is at pages 59-61 of the G documents.
The victim was 16 years old at the time, dressed in a school uniform travelling to school by catching a train at the Box Hill train station. The Applicant (who it would appear was under the influence of alcohol at the time, although this is not completely certain from the materials before the Tribunal[9]) approached the victim. The Applicant was considerably shorter than the victim who described herself as 176 cm tall and that he stood only to about the middle of her chest in height. He firstly gripped her hand and started stroking it. She tried to pull away and he gripped her right forearm and continued to stroke her hand. He then started kissing her hand. By this time the train arrived and she pulled away, the Applicant responded by more strongly continuing to kiss her hand. At this time he then touched her pubic area over the top of her clothing for a few seconds. She was then able to break the Applicant’s grip and board the train. Upon arrival at school she went straight to class. After that, she discussed the matter with a friend who suggested she raise it with a teacher which she did at lunchtime and the teacher contacted the police.
[9] The victim in her statement described him as having an "unusual gait" and did not believe "he was stumbling or from alcohol". The Applicant at paragraph 61 of his Statutory Declaration stated that he was drunk at the Box Hill train station. He also stated that the police had photographs of him at the station and he was walking when he was drunk. At paragraph 51 of his Statement of Facts, Issues and Contentions it is submitted that at the time of the offending concerned he was suffering from various medical conditions including alcoholism and an acquired brain injury, hepatitis C, Hepatitis B and pneumonia.
The police investigated and the Applicant was subsequently arrested, charged and brought before the Ringwood Magistrates’ Court. Unfortunately, we do not have any details of any submissions made to the court. There have been no reasons for sentence provided to the Tribunal. The Applicant’s representatives have endeavoured to obtain this material and have been advised by the Court Coordinator’s Office of the Ringwood Magistrates’ Court that Magistrates rarely make sentencing remarks and, if they do, this is usually only when a defendant is sentenced to a term of imprisonment. The Court Coordinator also advised that recordings of the hearings are only kept 12 months before they are destroyed. All we know from the Notice of Order Made, which forms part of “Annexure A” of the additional information provided by the Applicant’s representative, is that he pleaded guilty and consented to a summary hearing.
As noted earlier he was immediately released with conviction on an undertaking to be of good behaviour for one year. The material before the Tribunal being a Notice of Order Made on 31 October 2013 reveals that at the expiration of one year the Applicant was discharged as a result of complying with the terms of the undertaking given.
THE APPLICANT’S MEDICAL CONDITIONS
There are several medical reports in evidence before the Tribunal concerning the various conditions and afflictions from which he suffers. It is contended by the Applicant and his representatives that his offending must be viewed in the context of those conditions which include alcoholism, an acquired brain injury Hepatitis C, Hepatitis B and Post Traumatic Stress Disorder or other emotional distress[10].
[10] This contention is advanced by the Applicant in paragraphs 15, 51, 53 and 58 of the Statement of Issues, Facts and Contentions filed and served on his behalf.
Dr Peter Wigg a Consultant Psychiatrist, prepared a report on 22 December 2017[11]. This report was prepared after he conducted a psychiatric assessment interview with the Applicant at the Maribyrnong Immigration Detention Centre on 19 December 2017. The contents of that report are referred to in their entirety.
[11] Pages 87-88 of the G documents.
Dr Wigg concluded following his examination that the Applicant suffers from moderate dementia (chronic organic brain syndrome), indicative of acquired brain damage and characterised by poor short-term memory, decreased new learning ability, and frontal lobe damage likely to impair his judgement in social situations.
Also, Dr Wigg advised that the Applicant describes symptoms of post-traumatic stress disorder (“PTSD”) related to his having been tortured extensively in the past. He expressed the opinion that this explained the Applicant’s drinking as an attempt to allay such suffering. He noted that the Applicant has received no psychiatric treatment for his PTSD or other emotional distress.
Dr Wigg also observed the scarring on his chest referred to earlier as having been observed by Dr Higgins.
Dr Wigg concluded that the Applicant came to Australia as a refugee and is suffering from severe psychological difficulties which have not been adequately treated. Such difficulties were compounded by alcoholism and brain damage, also largely untreated, such that the Applicant is now less well than when he arrived. Dr Wigg observed him to be disoriented and therefore his ability to care for himself is severely compromised.
Dr Christopher Higgins prepared a report on 21 January 2018[12] which has already been touched on in some detail in these reasons. He conducted a medical examination of the Applicant on the day of his report. In addition to the scars that he observed, details of which are recorded above, he made other observations in this report. He recorded that the Applicant was hospitalised for severe pneumonia about two years after his arrival in Australia. Dr Higgins concluded that the Applicant was critically ill at this time as there is a tracheotomy scar on the front of his throat, through which he was presumably artificially ventilated.
[12] Pages 89-90 of the G documents.
Dr Higgins in the report canvassed the Applicant’s alcohol problems. He also postulated whether the Applicant’s drinking and behaviour while drunk could be related to PTSD. He concluded that the degree of physical torture sustained by the applicant as reflected in the scars he observed when conducting the physical examination was suggestive of severe trauma and, in his opinion, it would be surprising if such trauma did not have a profound impact on his mental health. He recommended the matter be investigated further with appropriate psychiatric evaluation.
Dr Higgins provided a further report on 30 January 2018 in which he concluded that it had become evident that the Applicant is suffering from dementia. He recommended investigations be carried out to determine the cause and whether there is treatment available to assist.[13]
[13] This short report of Dr Higgins is to be found at page 91 of the G documents.
Dr Jon Cook, the “Head of Unit Addiction Medicine Western Health/Drug Health Services” prepared a report dated 3 April 2018.[14] The contents of this report are referred to in full.
[14] Pages 93-95 of the G documents.
In his report, Dr Cook recounted the Applicant’s medical history. He noted that Eastern Health records contain a medical history that included pneumonia, hepatitis B, hepatitis C and abnormalities on liver tests consistent with alcohol use. It was also noted in the report by Dr Cook that the significant majority of attendances at Eastern Health emergency Departments by the Applicant related to presentations with alcohol intoxication and homelessness. He observed that on these occasions he sometimes presented also with hypothermia or signs of exposure and was often dishevelled or malodorous. The Applicant’s blood alcohol concentration levels were documented to exceed 0.30 on several occasions. The Tribunal observes that a blood alcohol concentration reading of this magnitude is extraordinarily high by any standards.
Dr Cook’s report also recorded the history of the Applicant’s drinking, particularly following his experience with torture, which escalated then to daily heavy drinking sometime following his arrival in Australia.
Dr Cook conducted a series of diagnostic screening tests which indicated cognitive impairment as a result of which he concluded that his scores were consistent with a likely diagnosis of dementia.
The report from Dr Cook recorded the history of torture suffered by the Applicant with what he described as the clear subsequent trauma related symptoms and likely PTSD. He concluded it was likely that the Applicant’s trauma related symptoms and Alcohol Use Disorder have both been largely untreated. He recommended treatment of these symptoms together with appropriate investigation, diagnostic and management advice related to the development of dementia.
The Tribunal notes that these medical reports referred to above have been prepared by highly qualified and experienced medical practitioners. There is no reason to doubt them as containing an accurate assessment of the Applicant’s medical conditions.
In addition to the reports prepared by medical practitioners referred to in this portion of the reasons there is also a Neuropsychology Assessment Report prepared by Dr Judy Tang, a Clinical Neuropsychologist, dated 17 June 2018[15]. The contents of that report are also referred to in their entirety. The portion of that report under the heading “Summary and Recommendations” provides a useful analysis of Dr Tang’s conclusions. She stated that the Applicant demonstrated reduced performances across all cognitive domains. He had slow information processing speed, poor attentional ability for both visual and verbal information presented to him, reduced comprehension and reasoning for both verbal and visual information, poor learning and rapid forgetting for information that is presented to him.
[15] As noted above this report is Annexure C to the Applicant's Statement of Issues, Facts and Contentions.
Critically, Dr Tang concluded concerning the Applicant’s capacity for informed consent that, in her opinion, he had significantly reduced capacity for same. She concluded he would require significant assistance to help him process and comprehend information relevant to his residency, health and other life factors.
The Tribunal considers that Dr Tang’s report is not inconsistent with the conclusions reached by the medical practitioners whose reports are referred to above.
It was because of the various medical afflictions suffered by the Applicant, principally his dementia and limited capacity in all cognitive domains, articulated in the several reports referred to above that led to the request of the parties for this application to be heard on the papers.
The Tribunal agrees with this approach; it is apparent from the opinions expressed by the healthcare professionals in the reports that the Applicant would not be capable of giving evidence from the witness box.
It also appears to the Tribunal that, on analysis of these reports, that at the time of his offending in each instance the Applicant was either profoundly affected by alcohol or alternatively his mental function was impaired to some extent, probably quite considerably[16]. This is evidenced by the fact that the Applicant’s blood alcohol levels, documented during his attendances at Eastern Health, exceeded 0.30 on several occasions. This is a colossal reading indicative of long-term significant alcohol abuse.
[16] Although, we do not know if a plea was made by way of mitigation of mental impairment and/or the chronic effects of alcohol, in accordance with one of the recognised authorities concerning such pleas.
Although the reports in evidence before the Tribunal do not identify when the Applicant first suffered from dementia, there is no doubt that long-term alcohol abuse was its cause. This, coupled with the PTSD that the healthcare professionals have identified him as suffering from as a result of the repeated torture he endured in Myanmar, must be considered in the context of his offending.
THE PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Paragraph 13.1(2) further states:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 of the Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’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;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
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 repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
In considering the nature and seriousness of the Applicant’s offending, it should be recalled for the purposes of this primary consideration that the offending falls into several categories. Those categories are indecent assault, loitering in a public place frequented by children, breaches of bail and/or its conditions and public drunkenness.
Clause 13.1.1(a) of the Ministerial Direction requires the decision-maker to have regard to the principle that sexual crimes are viewed very seriously.
Clause 13.1.1(1)(b) of the Ministerial Direction provides that the decision-maker should have regard to the fact that crimes committed against vulnerable members of the community such as minors are serious.
The Respondent submits that there should be little dispute that the Applicant’s conviction for the indecent assault of a 16-year-old schoolgirl should be viewed very seriously. In support of this contention, it relies upon the victim’s statement, details of which have been referred to earlier in these reasons.
The Applicant, in his Statement of Issues, Facts and Contentions, readily acknowledges that incidents involving minors should be viewed seriously.[17]
[17] This acknowledgement is made at paragraph 51 of the Applicant's Statement of Issues, Facts and Contentions. At paragraph 60 of that Statement there is also an acceptance by the Applicant's representatives that the Australian community may view an offence of indecent assault against a minor as serious.
The Tribunal finds that the indecent assault committed by the Applicant was very serious offending. The victim was a 16-year-old schoolgirl in uniform travelling to school; she was entitled to travel to school in safety without the threat of or being the victim of predatory behaviour. Although we have limited information about the impact upon her, it is apparent from her statement that she was unsure of what happened and one infers clearly disturbed by it. One may only speculate as to what the long-term impact may have been upon her. It was nonetheless a gross invasion of her rights and thoroughly unacceptable behaviour. It was behaviour that the Applicant knew to be wrong. It must have been apparent to the Applicant at the time of his offending that she was a minor and clearly vulnerable. The Applicant, on reflection, as he has done in his Statutory Declaration that is in evidence before the Tribunal, acknowledged that his offending was wrong and inappropriate.
Concerning the sentence imposed by the court for the indecent assault, a decision-maker is required to have regard to such sentence under clause 13.1.1(1)(c) of the Ministerial Direction. As noted earlier, there are no reasons for sentence of the Magistrate concerned. This is unfortunate.
The Applicant contends that the indecent assault was an isolated incident and that the Magistrates’ Court discharged the Applicant with conviction, but otherwise without a term of imprisonment or any other penalty. All he was required to do was to be of good behaviour for the next year following his sentence, which he apparently was given that he was subsequently discharged due to his compliance with the undertaking given. It is contended therefore, that the sentencing Magistrate did not consider the nature of the offence as being overly serious, nor that the Applicant posed a threat to the Australian community. Indeed, the delegate of the respondent in the Statement of Reasons for Decision Under section 501CA of the Act expressed the view that, because the Applicant did not receive any penalty other than a conviction being recorded, this indicates that the court considered the offence “to be towards the lower end of the range of such offending”. [18]
[18] Paragraph 17 on page 16 of the G documents.
For the reasons articulated above, the Tribunal cannot accept the contention of the Applicant that the sentencing Magistrate did not consider the nature of the offending serious. We do not know what matters were put to the Court by way of plea or in mitigation. However, it is apparent from the comparatively light sentence given to the Applicant that the court did consider the offence to be towards the lower end of the range of seriousness for such offending. It is telling, for instance, that there were no other conditions attached to the undertaking imposed. We do not know why, but for instance there were no conditions relating to treatment of the Applicant’s alcohol problem or even perhaps requiring him to attend for some form of counselling or treatment concerning predatory sexual behaviour. Presumably, if these were these matters considered important by both the prosecution and the sentencing court, they would have been addressed in the conditions imposed in the undertaking.
The Tribunal is required to consider the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. (Clause 13.1.1(1)(d) of the Ministerial Direction.) This factor will be analysed also concerning the Applicant’s other offending. However, it should be recorded that the Applicant has only committed one indecent assault which occurred in March 2012.
The offences of loitering in a public place frequented by children are on their face of a serious nature. It should be noted that the two offences for loitering in a place frequented by children occurred after his conviction in 2012 for the indecent assault. The conviction for an indecent assault had the effect of requiring the Applicant to report to Victoria Police for a period of eight years and being registered as a sex offender under the Sex Offender Registration Act 2004. He should have known better. It appears that when he was sentenced for the indecent assault that he was represented by a competent legal advisor, given that he consented to summary jurisdiction, pleaded guilty and an effective plea was made to the court, which is reflected in his non-custodial sentence. One can infer that he was properly warned by both the court and his legal advisors of the consequences of being registered as a Sex Offender, which includes a prohibition on loitering in places frequented by children. Under the relevant sub paragraphs of this consideration sexual crimes or crimes of a sexual nature are viewed seriously. Crimes against vulnerable members of the community, including children, are viewed seriously.
The Applicant contends that the loitering offences for which he was convicted need to be viewed in the light of the circumstances that he was in at the time. Those circumstances were that he had extended periods of homelessness, chronic alcohol dependency, acquired brain injury (if not dementia) and other illnesses or afflictions. It is submitted in that setting that it is more likely than not that the Applicant was not intentionally loitering in a public place frequented by children. In his statutory declaration the Applicant states that he must have been drunk when he frequented places where children were present. He states that he does not remember where or when this happened. Whilst the Tribunal is unable to reach a concluded view on whether or not this was the case it does seem more probable or not given the excessive alcohol consumption that the Applicant engaged in coupled with his dementia and other mental health problems that have been articulated in the relevant medical reports that this was in fact the case. It does not excuse the behaviour or lessen the gravity of it. However, it does go some way towards explaining how it occurred. Without more evidence as to precisely what happened when the Applicant was loitering in a place frequented by children and given the medical circumstances that he faced it is more likely than not that this offending was at the lower end of the scale.
The Tribunal considers this offending and the indecent assault, collectively are serious in nature. It is difficult in the absence of any reasons for sentence or any other evidence describing the circumstances of the loitering to be able to identify whether there was a trend of increasing seriousness as contemplated by clause 13.1.1(1)(d) of the Ministerial Direction. Similarly, because of the complete absence of any evidence concerning the circumstances surrounding such offending it is not possible for the Tribunal to make an assessment of the cumulative effect of the repeat offences of loitering public places frequented by children as required by clause 13.1.1(1)(e) of the Ministerial Direction.
There is no evidence before the Tribunal concerning the several charges and convictions of the Applicant for bail related offences. Bail laws are imposed for the purpose of releasing people who have been charged (and are presumed by operation of law to be innocent) from custody until such time as those charges have been heard and determined. They are aimed to strike a balance between the presumption of innocence and consequential right to the liberty of the subject and the protection of the community from further offending or other conduct that the legislature may wish to proscribe pending the accused’s trial. When bail is granted and conditions imposed important obligations are cast upon those persons subject to bail to comply with them. It is essential for the good order and management of both the criminal justice and corrections systems (not to mention the protection of the community) that persons subject to bail comply with its terms. As noted earlier there were approximately 16 appearances in court by the Applicant (sometimes for multiple charges) for breaches of the bail laws. Usually, these breaches of the bail laws were accompanied by other charges mostly public drunkenness and like offences.
There have been some occasions where cumulatively upon conviction for each of the offences the Applicant was sentenced to short terms of imprisonment. Without knowing the Applicant’s circumstances it is possible that the court was minded to impose short periods of imprisonment because to fine the Applicant would have been pointless, and more likely than not such fines would not be capable of being recovered. In the National Police Certificate which runs to several pages with numerous offences identified there are only two occasions on which he has been fined. This is surprising particularly given the frequency of some of the offending and as noted earlier, the fact that he has had short periods of imprisonment imposed upon him. It is a further factor that would lead the Tribunal to infer that the sentencing court concluded that fining the Applicant would be a pointless exercise.
The frequency of the Applicant’s offending for breaching bail laws, coupled with its cumulative effect which amongst other things, would include the diversion of police resources is unfortunate. His frequent court appearances inevitably must have resulted in him being advised of his obligations when on bail and the consequences of breaching its terms. Collectively considering the factors that a decision-maker must have regard to is identified in clause 13.1.1 this conduct is serious. However, for the reasons identified earlier concerning the Applicant’s several medical and mental health conditions it is on balance probably once again at the lower end of the scale notwithstanding its frequency. It must be emphasised that these conditions do not excuse his behaviour but do operate by way of mitigation and provide an explanation for it.
The Tribunal should observe that, where a person has been convicted of a crime, serious psychiatric illness may reduce the moral culpability of the offence, as distinct from the offender’s legal responsibility for it. This is where the sentencing discretion of the trial judge is applied. We do not know, with respect to any of the crimes committed by the Applicant for which he was sentenced, how that discretion was exercised by the Judge or Magistrate concerned.
However, it is perhaps useful to observe that there are various binding authorities from appellate courts throughout the Commonwealth which have laid down guidelines or principles to be applied by sentencing courts where the accused is suffering from some form of impaired mental functioning, whether temporary or permanent. Whilst one should not speculate, it is likely that such principles would have been referred to by the Applicant’s legal representatives in making various pleas on his behalf over the years of his offending. It should be borne in mind that he had presented to Eastern Health on numerous occasions from 2011 (the first year of a recorded offence committed by him) to 2017.
By way of example an authority widely relied upon in the Victorian courts when imposing a sentence is R v Verdins[19]. An examination of this case is helpful in understanding how impaired mental functioning at the time of offending may reduce the offender’s moral culpability, which is therefore reflected in the sentence subsequently imposed. Given the effects of chronic alcohol abuse and the other mental conditions that he has suffered, if they were brought to the attention of the sentencing court, it seems highly likely that these principles would have been applied to the Applicant in the exercise of the court’s sentencing discretion.
[19] (2007) 16 VR 269. There were several accused before the court in that case. They suffered from a variety of afflictions including significant substance abuse problems and other psychiatric illnesses ranging from psychosis, anxiety and forms of depression.
At paragraph 26 of the reasons of the Court of Appeal Maxwell P, Buchanan and Vincent JA, concerning an offender’s moral culpability, stated:
“Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b) impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.”
In terms of sentencing principles the Court of Appeal made the following statement that does give some insight into why judges may have imposed the sentences that they did on the Applicant from time to time.
“Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
These principles enunciated by the Court of Appeal are now commonly referred to by practitioners in the criminal law jurisdictions as the “Verdins principles”. They are frequently applied by sentencing judges and magistrates.
As for the charges of drunkenness and drunkenness in a public place once again there is no evidence as to the circumstances concerning any of this offending. It is an obvious manifestation of the chronic alcohol dependency from which the Applicant suffers as has been recorded in the medical reports identified earlier in these reasons. Frequently, offences involving drunkenness are victimless crimes. Indeed in several jurisdictions the offence of public drunkenness has been abolished on social policy grounds. There is no evidence that he has, save for the indecent assault, engaged in any other conduct of that nature whilst drunk. There is no evidence that whilst he was drunk publicly he violated the rights of any other citizens or interfered with them going about their business. The Tribunal, in the light of the medical evidence places little weight on this factor. Nonetheless, it is a matter for which the Applicant should be receiving appropriate medical attention as soon as possible.
Overall, the Tribunal finds the Applicant’s offending serious but at the lower end of the scale because of the history of torture that the Applicant suffered and his alcohol dependency coupled with significant untreated medical conditions from which he has suffered for many years and probably explain such offending. Therefore, this consideration weighs marginally against revoking the mandatory cancellation of his visa.
Risk to the Australian community should the applicant reoffend
Paragraph 13.1.2 of the Direction provides that:
(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).
In a consideration of this Clause of the Ministerial Direction as applicable to the applicant it is necessary to consider his previous offending in its particular categories to assess the harm to individuals or the Australian community where the conduct is serious as required by clause 13.1.2(2)(a).
The Applicant contends in his Statement of Issues, Facts and Contentions that during his 10 years in Australia he has only been convicted of one indecent assault offence. He has not been convicted of any other offences involving minors or harming another person. It is further submitted that the majority of his offences relate to drinking in public places and overall, given the nature of such offending, he does not pose a serious risk to the community. In further support of this contention, he submitted that the penalties imposed were comparatively light, which reflected the belief of the sentencing courts concerned that the risks of where reoffending are comparatively low.
The Respondent approaches the matter by submitting that the Applicant’s conviction for an indecent assault against a minor is of such a serious nature that any risk of repetition is unacceptable. The potential for harm to children, who are very vulnerable members of the community, is significant. Any risk of further offending is therefore unacceptable.
In developing its contention the Respondent has acknowledged that the Applicant’s repeated offending is likely to be heavily driven by his alcohol dependency. It correctly points out that the Applicant had been recorded in the report of Dr Cook[20] as having previously declined offers of support from alcohol and other drug services. However, it should be noted that Dr Cook recorded that it was not documented whether such offers were made with the support of interpreters.
[20] At page 93 of the G documents.
In an Assessment Outcome Report prepared by a Community Corrections Officer on 14 July 2017 the Applicant was assessed as being a “medium risk of reoffending” according to the application of what is described in that report as a “Level of Service Risk Assessment Tool.” Although it is not expressly stated, it would appear that this assessment does not cover the risk of reoffending with respect to committing an indecent assault or loitering in a public place.
Nonetheless, it is apparent that the Applicant has not taken opportunities to seek treatment and rehabilitation over the years. By reason of these considerations, the Respondent asserts that the Tribunal cannot be satisfied that the Applicant will not return to his past behaviour and continue to reoffend should he be released into the community.
This submission as to risk of reoffending, it is submitted by the Respondent, is amplified by the several convictions or charges that the Applicant has faced concerning breaches of the bail laws. This is a point that is fairly made. The Applicant’s propensity to breach bail laws shows either an indifference to, or a lack of understanding of, his obligations when placed on bail. It is unlikely when he was bailed by either the police or a court that steps would not have been taken to have had the terms and conditions of his bail explained to him through an interpreter, and the consequences of any breach of those terms and conditions, being a potential criminal offence, were not explained to him.
It should be noted that there is in evidence an extract from a statement made by Detective Senior Constable Garay on 10 April 2012 concerning events surrounding the arrest of the Applicant for the indecent assault.[21] The Detective Senior Constable provides an account of the conversation he had with the Applicant and stated that he formed the opinion that the Applicant had difficulty in understanding what was being said to him due to his limited English skills. Whilst this does not excuse his behaviour it is probably supportive of the contention that he did not understand precisely his obligations when on bail or the obligation not to loiter in a public place frequented by children. It also goes some way to explaining his inability to understand and seek access to available public health resources to enable him to seek diagnosis and treatment of the several medical conditions that he is now known to suffer from.
[21] Page 70 of the G documents.
It is of concern with respect to his offences of drunkenness that if an appropriate treatment program for all of his medical conditions, including his underlying condition of PTSD, is not undertaken, the risk of reoffending, certainly with respect to offences involving drunkenness, is high.
The Applicant has expressed through his representatives a desire to undertake a program of rehabilitation and treatment as may be necessary. It has been contended on his behalf that he did try, while living in the community, to obtain assistance. However, such attempts did not bear fruit due to his limited knowledge of English, together with his poor mental health. There seems to be little doubt given, the medical evidence that is before the Tribunal, that this contention is probably correct. However, it does highlight the fact that if he is to be released he will have to obtain the appropriate support immediately.
The Applicant in his submissions has contended that whilst he has been detained in immigration detention has not been able to access to specialist services required to aid his recovery. This would appear to be correct, although the consultations with the medical practitioners and Dr Tang have occurred during the period of such detention. However, it does seem that no actual medically supervised treatment programs have been undertaken whilst he has been in immigration detention. He has apparently been in a state of sobriety whilst in detention.
In the most recent submission filed on his behalf, there has been some correspondence furnished from Olivia Nicholls, a clinical consultant at Odyssey House, which indicates that that organisation would be willing to offer the Applicant assistance as it can.
In applying the factors to be taken account as required by clause 13.1.2 of the Ministerial Direction, the Tribunal considers the likelihood of the Applicant committing another indecent assault is reasonably low. There are several reasons for this. The assault occurred over six years ago. The last offence for loitering in a public place frequented by a child was over three years ago. More likely than not it occurred whilst the Applicant was severely affected by alcohol. The offending more likely than not also occurred whilst the Applicant had undiagnosed dementia as well as undiagnosed and untreated PTSD (not to mention other medical conditions). The opinions of medical professionals that have now been obtained make it more likely that these conditions will be addressed, including, if necessary, attendance at a residential rehabilitation facility. (It is of course noted that a decision should not be delayed in order for rehabilitative courses to be undertaken. It is not suggested however that this should be the case.) There is also the fact that, having been in detention for quite some time, the Applicant, during an extended period of sobriety, has had occasion to reflect upon the gravity of his offending. He also has the support of several individuals in his community who have offered assistance.
The Tribunal finds that, similarly, the likelihood of the Applicant committing the offence of loitering in a public place frequented by children is also reasonably low.
Concerning the breaches of the bail laws, it appears that the Applicant has now been apprised of the consequences of adhering to those laws in every respect. It is also to be hoped that if he does not offend in the future there will of course be no need for him to be placed on bail. The nature of the harm to individuals or the Australian community if he were to reoffend by breaching bail is difficult to assess; it is not in the same category as a crime against the person or the loitering offences of which he has been convicted.
Overall the Tribunal considers that the Applicant does not pose an unacceptable risk of harm to individuals, groups or institutions in the Australian Community. The likelihood of the Applicant committing offences against the person is reasonably low, which therefore minimises the harm to individuals or the Australian community. The concern most likely is that the Applicant will continue to reoffend if he resumes drinking upon release. However, taking into account the available information and evidence before the Tribunal, because there is a moderately low risk of the Applicant reoffending, this consideration weighs marginally in favour of revoking the mandatory cancellation of his visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(1) of the Ministerial Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children.
The Applicant has not made any submissions to the Tribunal in relation to the best interests of any minor children. There is no evidence before the Tribunal that there are any minor children who would be affected by a decision not to revoke the mandatory cancellation of the Applicant’s visa.
By reason of the fact that there are no minor children affected by the decision this consideration does not weigh in favour of, or against the revocation of the mandatory cancellation of the Applicants visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 of the Direction relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In applying this paragraph, the Tribunal has to construe the language used. The expectation contained in the first sentence of this paragraph, requiring obedience to Australian laws, is not an unrealistic expectation, nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences, where the Tribunal has to consider what the expectations of the Australian community might be in the circumstances of the case.
The Applicant in his submission refers to several authorities concerning this question.[22] On the other hand, the Respondent makes a series of statements as to what the Australian community might acknowledge in terms of the Applicant’s difficult background, without necessarily referring to any authorities.
[22] The contents of paragraphs 55-60 of the Applicant's Statement of Issues, Facts and Contentions are referred to.
In Re Do and Minister for Immigration and Border Protection[23], McCabe DP provided some guidance:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgement about the individual and what should be done.
[23] [2016] AATA 390 at [23].
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[24] Block DP also helpfully observed:
The expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
[24] [2003] AATA 1336 at [36].
Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[25] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that was the intention of that paragraph.
[25] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
The Applicant in his submissions contented cumulatively that to uphold the cancellation of the Applicant’s visa would be to disproportionately punish the Applicant for what he has done. He contends that the fair-minded, mature and reasonable member of the Australian community would expect that he received no more than just punishment for his offending. Particular emphasis was placed on the fact that the courts who sentenced him (and presumably had the benefit of a carefully detailed plea) did not consider it appropriate to impose a sentence of imprisonment regarding the indecent assault conviction.
Concerning the other offending, the Applicant argues that it is important to consider the torture he had suffered prior to arrival in Australia, his serious health issues which have been amply touched on earlier in these reasons and in particular his alcohol dependency, provide compelling reasons to reach a conclusion that the Australian community would consider it appropriate to revoke the mandatory visa cancellation in the circumstances.
Additionally, it is contended that in circumstances where the Applicant faces a return to a country where he could be placed in a life threatening situation, this factor would significantly affect the expectations of the Australian community in his favour.
These factors, it was submitted on behalf of the Applicant, weighed in favour of revocation of the mandatory cancellation of his visa.
The Respondent contended, in terms similar to those grounds relied upon when addressing the previous considerations, that the Australian community would expect a non-citizen who has committed such a serious offence to forfeit the privilege of staying in Australia.
This contention was also further supported by such grounds as the lengthy history of criminal offending and what was described as his continuous breaches of trust that the Australian community had placed in him. It was also emphasised that his offending commenced after he had been in Australia for a comparatively short time. Reliance was placed on clause 6.3(5) of the Ministerial Direction that Australia has a low tolerance of any criminal or other serious conduct engaged in by people who have been in Australia for a short time.
The Respondent also contended that he had made little or no contribution to the Australian community during his time here.
Therefore, the Respondent submitted that the Tribunal should weigh this primary consideration in favour of non-revocation of the mandatory cancellation of the Applicant’s visa.
This consideration does require the decision-maker to objectively assess all the matters that are before it and exercise the discretion accorded by that clause having done so. The fair-minded and mature observer of the Australian community would have to have significant sympathy for the plight of the Applicant. He had, prior to his arrival in Australia, been subjected to some extremely brutal torture which has been confirmed by medical examination. This traumatic experience did lead to alcohol dependency and undiagnosed PTSD. Excessive alcohol consumption has led to the onset of dementia. Whilst it does not excuse, it does explain his offending. Only one offence was an offence against the person. Some of his offending it would appear now was probably due to his limited English skills or contributed to by those limited English skills. The fact that the courts imposed comparatively light sentences reflects the sentencing court’s assessment that such offending was on the lower end of the scale. It does seem that to make him return to Myanmar is, in effect, punishing him again.
Given what has been established concerning his treatment prior to arrival in Australia and the torture that he suffered, it is reasonable to conclude that if he were to return to Myanmar there would be some risk of harm. This harm would arise from both the risk of torture or further mistreatment in custody, however that may occur, and the likelihood that he would be unable to access adequate healthcare treatment and services to address the several medical conditions from which he suffers.[26]
[26] It is acknowledged that this consideration is also a matter that may be touched on and in fact will be touched on in other considerations including but not limited to that in Clause 14.5 Extended impediments if removed. However, it is considered a matter that can be properly taken into account in terms of the expectations of the Australian community.
The fair-minded and mature Australian in this instance, having considered the matters contended for by the Applicant as against those contended for by the Respondent, would accept that it would be appropriate to revoke the mandatory visa cancellation. The Applicant has had a difficult life which does explain to a large degree the reason for his offending and he should be given some level of sympathy. It is a sympathy that the Australian community has been prepared to extend to people from many nations who have been the victims of torture and mistreatment by various governments or for various reasons such as the ethnic origins or religious beliefs. This consideration weighs in favour of revoking the mandatory visa cancellation.
OTHER CONSIDERATIONS
There are other considerations that must be considered in revocation matters which are identified in paragraph 14(1) of the Direction. It provides that:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 14.1 of the Direction provides as follows in relation to Australia’s non-refoulement obligations:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-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.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(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 determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In addressing this consideration, the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4). Paragraph 14.1 of the Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm, such that it would trigger Australia’s international non-refoulement obligations.
The Applicant submits that as a result of the decision in BCR16 v Minister for Immigration and Border Protection[27] (“BCR16”) the Tribunal must take into account and accord weight to the non-refoulement obligations arising in the Applicant’s case as part of this decision. The fulcrum of this contention is that in BCR16 the Full Court of the Federal Court of Australia determined that non-refoulement obligations would not necessarily be considered on an application for a protection visa. In such a setting, an application for protection could be refused on the basis of other criteria, without a determination on whether non-refoulement obligations were owed at all.
[27] [2017] FCAFC 96.
In addressing this consideration it is appropriate to commence an analysis of it by reference to the initial contention on behalf of the Respondent. The Respondent contends that, as the Applicant arrived in Australia on a Class XB Refugee visa it is, therefore, open to him to make an application for a protection visa. Developing this contention, the Respondent states therefore that, consistent with paragraph 14.1(4) of the Ministerial Direction, the Tribunal is not required to determine whether international non-refoulement obligations are owed to the Applicant. However, by the same token, the Tribunal observes that the language used in clause 14.1(4) does not oblige a decision-maker not to consider non-refoulement obligations, but rather suggests that it is unnecessary to do so.
The Respondent observes that should the Applicant submit an application for a protection visa, decision-makers are bound when considering such applications to apply Ministerial Direction 75 - Refusal of Protection visas Relying on Section 36 (1C) and section 36 (2C) (b) (“Direction 75”). It is further observed that Direction 75 requires such decision-makers to first assess whether the refugee and complimentary protection criteria are met before considering ineligibility criteria, or referral of the application for consideration under section 501 of the Act[28].
[28] The entirety of "Part 2 of Direction No. 75 – Directions” is referred to for the precise language used. It should be noted that the preamble to this section provides that in considering elements of the Protection visa assessment for applicants who raise character or security concerns, decision-makers are to follow the order set out therein. The first matter that the decision-maker must assesses the applicant's refugee claims.
The Respondent further cited extensive passages from the decision of Justice Flick in Ali v Minister for Immigration and Border Protection[29] (“Ali”). In several of those passages Justice Flick observed that Direction 75 was given presumably in order to address the conclusions of the Full Court in BCR16.[30] The effect of Ministerial Direction 75 is to prescribe the sequence in which matters are considered by a decision-maker when an application for a protection visa is made. This is contained in “Part 2 of Direction No. 75 - Directions” and requires the decision-maker to first address the refugee and complimentary protection criteria before considering any character or security concerns.
[29] [2018] FCA 650 at paragraphs [28] – [30] and [33] – [35].
[30] This contention is acknowledged in part by the Applicant in his Statement of Issues, Facts and Contentions at paragraphs 65, 66 and 67.
Ali’s case was an application for review of a decision of the Assistant Minister not to revoke a previous decision of a delegate pursuant to section 501CA(4) cancelling his visa.
The Assistant Minister’s reasons under the heading “International non-refoulement obligations” are reproduced in Justice Flick’s decision. For the reasons explained and relying upon the provisions of Direction 75, he considered that it was unnecessary to determine whether non-refoulement obligations were owed in respect of the Applicant as he was able to make a valid application for a protection visa. In such case, the existence or otherwise of non-refoulement obligations would be considered in the course of processing that application.
Two grounds of appeal were relied upon in the originating motion before the Federal Court.
The first ground was that the Assistant Minister constructively failed to exercise his jurisdiction in failing to consider, on a correct understanding of the law, a “reason” put to him by the Applicant for the purposes of the exercise of his revocation power under section 501CA(4).
The second ground was that the Assistant Minister constructively failed to exercise his discretion, in failing to take into account the effect on the Applicant if his mental health were to deteriorate on return to Afghanistan. (Justice Flick referred to this ground as a failure to consider aspects of his claim.) Such that there was a real chance that the Applicant would suffer serious or significant harm and being harm not within the scope of non-refoulement obligations that would be assessed in the context of a protection visa application.
Justice Flick reproduced several passages from BCR16 which highlighted the jurisdictional error made by the Assistant Minister in that case. The error was revealed as being the linkage between her refusal to consider the reason put to her by the appellant, and the way the Act would operate if a protection visa application was made. This nexus was her incorrect expression of her understanding about the operation of the Act and the consideration of risks of harm to the appellant during the consideration of an application for a protection visa.
Justice Flick alluded that there was no error of the kind identified in BCR16 committed by the Assistant Minister in the application before him.
In considering the first ground of review in Ali’s case, Justice Flick examined the reasons of the Assistant Minister and highlighted that there was no misunderstanding as to the nature and extent of the power being exercised. More particularly, he did not misunderstand the likely course of decision-making or any necessity to consider a non-refoulement obligation if a protection visa application to were to be made. He also did not fail to consider submissions made as to why an adverse decision should not be made pursuant to section 501CA(4).
Justice Flick also observed that the reasons provided by the Assistant Minister demonstrated that he had no misunderstanding as to the sequence in which matters are considered, no misunderstanding as to the sequence in which matters are considered and no misunderstanding as to the future necessity to first address the refugee and complimentary protection criteria, as required by the terms of Direction 75.
In addressing the second ground of review Justice Flick noted that the Applicant had made representations to the Assistant Minister. Those representations concerned Australia’s non-refoulement obligations as they applied to the Applicant and the dangers faced by him should he be forced to return to Afghanistan by reason of his health and mental health conditions.
Justice Flick found that both issues were expressly addressed and considered in the relevant passages of his reasons. It should be noted that His Honour found that the reasons concerning the representations made by the Applicant, concerning Australia’s non-refoulement obligations, were those that reached the conclusion that it was unnecessary to determine whether such obligations were owed in respect of the Applicant for the purposes of that decision because he was able to make a valid application for a protection visa. In that case, the existence or otherwise of such obligations would be considered.
The Applicant has made several submissions concerning Direction 75.
He contends, amongst other things, that although Direction 75 attempts to impose a course of decision-making under the Act,that does not mean that an applicant’s non-refoulement claims would necessarily be considered as part of a future application for a protection visa. This is based upon a contention that the direction is not binding on the Minister or the Assistant Minister acting in their personal capacities.
It is also considered by the Applicant that Direction 75 does not answer the issues highlighted by the court in BCR16. The foundation of this argument is that section 65 of the Act requires that, if the Minister is satisfied that an applicant has met the criteria required for the issue of a protection visa, it must be granted. There is no discretion. If that state of satisfaction is not reached, no protection visa can be granted. The process to be undertaken in an application for the purposes of section 501CA(4)(b)(ii) of the Act requires a state of satisfaction to be formed as to whether “there is another reason why the original decision should be revoked”.
In this setting the Applicant observes again that the language used in clause 14.1(4) of the Ministerial Direction does not oblige a decision-maker not to consider non-refoulement obligations if it is open to an applicant to apply for a protection visa.
The decision of Justice Flick in Ali also did not hold that a decision-maker is not obliged to, or would fall into error if it did, consider non-refoulement obligations, if it were otherwise open to an applicant to apply for a protection visa. The decision should be considered in the light of its facts and the grounds of appeal relied upon by the appellant in that case. Those grounds it should be repeated were that the Minister failed to consider, on a correct understanding of the law, a “reason” put to him by the applicant for the purposes of the exercise of his revocation power under section 501CA(4) of the Act. The second ground was that he failed to take into account in the exercise of his discretion the effect on the applicant if his mental health were to deteriorate on return to Afghanistan. On the first ground, because the Minister demonstrated a proper understanding of the nature and extent of the power being exercised, he was held not to have fallen into error. This was even though he had decided that it was unnecessary to determine whether non- refoulement obligations were owed to the applicant.
Accordingly, for these reasons the Tribunal finds that it is able to consider whether international non-refoulement obligations within the meaning of Clause 14.1.
The Applicant relies upon the following grounds:
(a)The risk of harm on the basis of his Chin ethnicity and support for the CNA;
(b)Risk of harm arising from lack of physical and psychological medical care; and
(c)Legal consequences of the decision.
The level of analysis that the Tribunal can undertake in a proceeding such as this is less than that required in assessing a claim for a Protection visa.[31] The Tribunal is bound to decide this application within an 84 day time limit. It cannot engage in the detailed evidentiary analysis that would be undertaken if a protection visa claim were examined elsewhere by those specifically charged with undertaking such a task. Typically in such a setting the decision-maker has access to an extensive interview with the applicant and other materials before it that are not present here. This means that, in the circumstances, the Tribunal frequently has to assess the matter with limited evidence before it to determine the risk of harm.
[31] Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [28].
It perhaps should be noted here that of course the harm contemplated by non-refoulement obligations do not describe the universe of harm which could be suffered by person on return to his country of nationality. It is possible for harm or the risk of harm to occur to an applicant, not in a treaty sense, but nonetheless it could be a discretionary consideration within the meaning of clause 14.1.[32]
[32] The contents of paragraphs 74 to 76 of the Applicant's Statement of Issues, Facts and contentions are referred to for the Applicant's arguments with respect to "Other harm". The Tribunal accepts the Applicant's contention that the decision-maker should consider all levels and types of harm which the Applicant fears and raises before the Tribunal. It should do so on the grounds that it is possible for the applicant to face a risk of some harm beyond that contemplated by the relevant conventions referred to in Clause 14.1.
Risk of harm on the basis of the Applicants Chin ethnicity & support for the CNA
The Applicant asserts that there is information available to the Tribunal which demonstrates that, were he to be returned to Myanmar, there is a real risk that he would face harm. Several grounds are relied upon. Those grounds are:
(a)Race, being a Chin;
(b)Religion, being a Christian in an overwhelmingly Buddhist majority country;
(c)Membership of a particular social group, being both a Chin and supporter of the CNA;
(d)A member of a particular social group, being failed asylum seekers; and
(e)Political opinion; he has a history of supporting the CNA in their plight against the Burmese government and the Burmese army. Upon his return, he would be seen still as a subversive and possible opponent of the Myanmar government and army.
Therefore, by reason of this persecution where he to be returned to Myanmar, there are substantial grounds for believing that, as a necessary and foreseeable consequence of that return he would suffer significant harm through the following possible actions:
(a)Arbitrary deprivation of his life; or
(b)Being subjected to torture; or
(c)Being subjected to cruel or inhuman treatment or punishment; or
(d)Being subjected to degrading treatment or punishment.
The evidence relied upon by the Applicant in support of these beliefs as to the fate that awaits the Applicant in the event that he would be returned to Myanmar is largely derived from the “Country Information-The Treatment of the Chin and Other Ethnic Minorities in Burma” document in evidence before the Tribunal.[33] The Tribunal has examined this material and if it is accurate as a whole, or even in part, at the very least one would have to conclude there would be a significant risk to the Applicant of being subjected to torture and other cruel, inhuman, or degrading treatment or punishment on his return.
[33] The document is found at pages 103-114 of the G documents. There is a similar document also to be found at "Annexure D" to the Applicant's Statement of Issues, Facts and Contentions.
This conclusion must be looked at from the perspective of course that there is medical evidence before the Tribunal, which is accepted, concerning the evidence of some severe torture that the Applicant has been the victim of in the past. The Applicant in his statutory declaration, which has not been seriously challenged by the Respondent, gave details of the arrest and torture that he suffered whilst in custody.[34]
[34] Lest it needs to be repeated the contents of his statutory declaration at paragraphs 25 to 42 are referred to and repeated. In that account of the torture he suffered he details specific instances of what occurred to him. This account is consistent with the observations made by Dr Higgins in his report of 21 January 2018 concerning the scars on his body which were caused by the torture alleged.
The Respondent asserts that recent reports concerning the Chin State and Chin ethnic group in Myanmar reveal that there is some level of stability. A press report is referred to[35]. However, the Tribunal does not place much weight on a press report. The source for the report is an unidentified spokesman for the UNHCR. One would have expected that there would be a primary source document emanating from the UNHCR (of which it produces many as can be verified by a search of its website for instance) such as an official report, notice or bulletin that would verify the decision and could have been produced. The Respondent also refers to the DFAT Country Information Report for Myanmar of 10 January 2017 which asserts that, in general, most people in Myanmar typically face a low level of official and societal discrimination on the basis of their race or ethnicity other than those who identify as Rohingya. Whilst certainly that comment is contained in the DFAT report, the entire report should be considered. In the section of the report headed “Torture & Other Cruel, Inhuman or Degrading Treatment or Punishment[36]” it indicates that the military and police continue to frequently carry out arbitrary arrests and detention of people for periods of time, without charge, in violation of the law. Whilst in custody, it is suggested that the military in particular continues to use torture against people suspected to be associated with armed ethnic groups. It opines that authorities are rarely brought to account for their actions. It is stated that the police and security services in particular continue to enjoy impunity.
[35] See paragraph 66 of the Respondent’s Statement of Facts, Issues and Contentions.
[36] Page 25 of the DFAT Report paragraphs 4.7 to 4.11.
Similar conclusions were also to be found in the United States Country Reports on Human Rights Practices for 2017 with respect to Burma[37]. That report recounted the police and security services conducting searches and arrests at will without warrants, notwithstanding the legal requirement for same. It also recounts that members of the security forces reportedly tortured, raped, beat and otherwise abused prisoners, detainees, other citizens and stateless persons in incidents not related to armed conflict. It referred to the use of harsh interrogation techniques, designed to intimidate and disorient, including severe beatings and deprivation of food, water and sleep. It observed saliently that human rights groups continued to report incidents of torture in minority areas. It stated that authorities generally took no action to investigate such incidents or punish alleged perpetrators.[38]
[37] United States Department of State - Bureau of Democracy, Human Rights and Labour. The Respondent in paragraph 68 of its Statement of Facts, Issues and Contentions refers to the 2016 version of this document. The Tribunal has also examined the 2017 version of this document and it is material from this document that is referred to in these reasons as it is more recent. The 2016 version makes very similar findings to the 2017 version.
[38] In the Executive Summary of that report the following observations were made:
The Respondent also relies upon the section of the DFAT report “Treatment of Returnees”[39] to show that the risk of harm to the Applicant by reason of his return refugee status is likely to be minimal because, although he is technically subject to up to five years imprisonment for having illegally crossed the border, the evidence available to DFAT is that the provision has not been enforced in recent years. The Tribunal accepts this assessment by DFAT. However, due to the fact that such a law is on the statute books in a nation where the rule of law is at times applied arbitrarily as noted earlier, one cannot eliminate altogether the risk to the Applicant of him facing a further term of custody were he to return to Myanmar, given his history and the matters identified above in both the DFAT and State Department reports.
[39] Page 30 of the DFAT report at paragraphs 5.33 to 5.38.
Given the above considerations the Tribunal concludes that, were the Applicant to be returned to Myanmar, there is a very real risk that he would suffer harm by way of arbitrary arrest, imprisonment and torture. The duration of this treatment is uncertain. Given the range of health conditions that he suffers from and his overall condition, the effect of this treatment upon him is likely to be harsh. This consideration therefore weighs heavily in favour of revocation of the mandatory cancellation of his visa.
Risk of harm arising from lack of physical and psychological medical care
The medical conditions that the Applicant suffers from have been outlined earlier in these reasons. By reason of such conditions, it is contended by the Applicant that he would face serious harm if he returned to Myanmar. The reason for this is that there is inadequate medical care or support services necessary to enable him to obtain treatment and appropriate levels of support for such conditions. The Applicant’s submissions identify various inadequacies with the healthcare system. It is noted that there is a low life expectancy with approximately 69% of men dying before the age of 70. There are poor public hospital and medical facilities usually lacking sufficient medical staff and supplies, including necessary drugs and ancillary material. There are low levels of health worker density, well below the Southeast Asian regional estimate. There are a few mental health facilities in Myanmar. Poverty particularly in Chin State is rampant and estimated to be over 70%. It is contended that general health indicators are much worse in Chin State compared to the rest of the country.[40]
[40] See paragraphs 77-84 of the Applicant’s Statement of Facts, Issues and Contentions.
By reason of these matters, the Applicant contends that Myanmar does not have the necessary health care and support services that would address his needs were he to be forced to return. In such a case, this would amount to harm contrary to Australia’s international non-refoulement obligations. This, therefore, amounts to another reason within the meaning of section 501CA(4)(b)(ii) of the Act why the original decision should be revoked.
The Respondent accepts that the healthcare services in Myanmar will be below the standards of such services available to the Applicant in Australia. It contends, however, that in response to this fact, that there are several reasons why the Tribunal cannot be satisfied on the evidence that this amounts to a specific type of harm or as it refers to it in its contentions “significant harm”, that weighs in favour of revocation of the mandatory cancellation of his visa.
Those reasons are:
(a)The Applicant’s claims relating to the circumstances he would face if returned to Myanmar due to his medical issues do not speak to whether he faces serious or significant harm;
(b)The Applicant would be in the same position as other Myanmar nationals with respect to the level of healthcare and other facilities available to him;
(c)The fact that the condition of the services could be improved does not equate to violence or otherwise harmful conduct specifically directed at the Applicant in a way that would enliven Australia’s non-refoulement obligations; and
(d)The Applicant’s claims relating to the circumstances he would face if returned to Myanmar due to his medical issues, relate to the extent of impediment the Applicant may face, rather than a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Tribunal accepts the Respondent’s contentions that the Applicant’s claim concerning the lack of necessary medical and health support services in Myanmar does not amount to a specific type of harm or significant harm (or however otherwise it may be categorised) so as to enliven Australia’s non-refoulement obligations within the meaning of Clause 14.1 of the Ministerial Direction.
The predominant reason for reaching this conclusion is that the lack of medical and support services is a predicament which the Applicant would face as well as any other citizen of Myanmar and any such citizen suffering from the same medical and other conditions. They would all be in the same position with respect to access to the level of healthcare and other facilities available. At best, this lack of resources would amount to an impediment that the Applicant may face which, if it is to be addressed anywhere, is dealt with by a consideration of Clause 14.5 of the Ministerial Direction (Extent of impediments if removed). It is not harm in the sense contemplated by the language used in clause 14.1 of the Ministerial Direction, which is a specific type of harm directed to the Applicant by reason of various aspects of his background, such as race, religion, nationality, membership of a political or social group. The unfortunate fact is that available healthcare services in Myanmar are not to the equivalent standard of Australia nor readily accessible.
Legal consequences of the decision
The Applicant contends that the Tribunal must take into account the legal consequences of a decision not to revoke the mandatory cancellation of his visa. He refers to the language of clause 14.1(6) of the Ministerial Direction which provides that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations. He then highlights an inconsistency between this clause of the Ministerial Direction and the operation of section 197C of the Act. This section imposes an obligation on officers of the Respondent to remove a non-citizen as soon as reasonably practicable, regardless of whether that person is owed non-refoulement obligations.
Therefore, the legal consequences of a decision not to revoke the mandatory cancellation of the Applicant’s visa is by reason of the operation of section 197C of the Act that it would be incumbent upon the Respondent to remove him as soon as reasonably practicable irrespective of whether there had been an assessment of any non-refoulement obligations. In the event that this were to occur, it would permit his removal before he could make an application for a protection visa. It is also contended that in addition to this consequence there would not necessarily be any assessment of his claims concerning non-refoulement obligations. Additionally, it is submitted that such an application could and would likely be refused on character grounds, even if non-refoulement obligations were found to be owed to him. Also, any “other” types of harm which he fears would not be assessed. The totality of these considerations are that his risk of harm would “avail him naught”. Therefore, the consequence of the decision not to revoke the mandatory cancellation of his visa would be likely refoulement or return to Myanmar in which he faces a real risk of harm.
The Respondent counters these contentions made by the Applicant on three grounds.
Firstly, that he can make an application for a protection visa at any time.
Secondly, as had been previously considered Ministerial Direction 75 requires that an assessment of the Applicant’s refugee claims and complimentary protection claims are made before other in eligibility criteria are considered. Therefore, the Applicant’s non-refoulement claims would be properly assessed in the course of his protection visa application.
Thirdly it is highly speculative to assert, as the Applicant does, that an application for a Protection visa made by him could and would likely be refused on character grounds. Therefore, this contention is without foundation.
Further, the Respondent also contends that in any event such concerns, which are largely of an administrative nature, clearly do not enliven Australia’s non-refoulement obligations.
The Tribunal accepts the Respondent’s contention that there is no reason why the Applicant could not make a valid application for a protection visa immediately. Direction 75 does require the decision-maker to assess complimentary protection claims which would include any non-refoulement claims that the Applicant may have.
Whilst it is true as the Respondent contends that it is speculative for the Applicant to assert that an application for a protection visa by him could and would likely be refused, it does not mean that it is beyond the range of possibility. The key to any decision rejecting an application for a protection visa by the Applicant is whether the Minister considers, on reasonable grounds, that the Applicant has been convicted of a particularly serious crime[41]. The term a particularly serious crime has not been defined in the Act.
[41] The operative provisions of section 36(1C) and (2C) of the Act are referred to for their full force and effect.
Whilst this prospect remains a possible legal consequence of the decision not to revoke the mandatory cancellation of his visa, there is a possibility of refoulement or return to Myanmar, a country in which has the Tribunal has observed earlier the Applicant faces a risk of a specific type of harm, being arbitrary arrest, imprisonment and torture.
For these reasons, this consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia at the age of 42 years. He has resided in here for just over 10 years. His first offence, which was being drunk in a public place, occurred approximately three years after his arrival.
There is no evidence before the Tribunal of any real positive contribution that the Applicant has made to the Australian community, save for some scant evidence that he has had some cash-in-hand work on farms, such as fruit picking.[42] He does not appear to have ever been formally employed during his time in Australia. To an extent this is quite understandable given the range of afflictions from which he suffers and it would appear has suffered probably from the time of his arrival. He has a long history of offending, even if most of the offending arises from drunk and disorderly behaviour or the consequences arising therefrom. Nonetheless, applying the language used in Clauses 14.2(1)(a)(i) and (ii) the Tribunal places little weight on these factors.
[42] This is referred to on page 3 of the report of Dr Tang of 17 June 2018.
In terms of family and social ties, the Tribunal notes that the Applicant does have a cousin who lives in Melbourne with her husband and three children, as well as a clergyman from the Applicant’s church, who have provided letters of support that are in evidence before the Tribunal. No doubt these letters and expressions of support are made with the best of intentions, however to date that support has not produced any results or achieved an improvement in the Applicant’s situation. It is apparent that these people have had limited contact with the Applicant due to his alcohol dependency, long periods of homelessness and overall disconnection from society.
The Tribunal concludes that this consideration does not weigh one way or the other in this application.
IMPACT ON VICTIMS
Paragraph 14.4 of the Direction provides as follows in relation to impact on victims:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact of a decision not to revoke on members of the Australian community, including the Applicant’s victims. The only victim that the Tribunal has any evidence on is the victim of the indecent assault in March 2012. That statement does not provide much, if any, evidence of the impact on the victim concerned. As noted above it was a gross violation of her in a serious crime. However, it was probably at the lower end of the range of such offending.
In the circumstances this consideration weighs marginally against revoking the mandatory cancellation of the Applicant’s visa.
EXTENT OF IMPEDIMENTS IF RETURNED TO MYANMAR
Paragraph 14.5(1) of the Direction requires the Tribunal to consider the extent of any impediments if the Applicant is removed from Australia:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining 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.
The Applicant contends that he will face a number of impediments were he to be returned to Myanmar. These impediments have already been canvassed extensively in these reasons. Both the Applicant and the Respondent acknowledge the range of illnesses and afflictions from which the Applicant suffers. These conditions are well articulated in the medical reports that are in evidence before the Tribunal.
Very little is known about his family members remaining in Myanmar. No reasons have been offered to the Tribunal as to why he does not know much about them, which is unfortunate. He believes that his parents have probably passed away, but cannot confirm this fact. He has two living sisters, one of whom is intellectually disabled.
He contends that he would face serious hardship living in Myanmar due to his serious health problems, lack of support network and having been removed from the country for some time. The likelihood, he contends, is that he will be unable to find employment (in any event it is no doubt true that there are few employment opportunities likely to be available to him) and accommodation. The likelihood is that he will become destitute and homeless, which could further exacerbate his illness. It is contended that in terms of life expectancy in Myanmar, he is relatively old, which would also be a barrier to him accessing whatever healthcare and other support services may be available, which is limited.
The Respondent contends that, notwithstanding these impediments, the Applicant would have the ability to establish himself in Chin State if he were to be returned to Myanmar. Allied to this contention it is asserted that the applicant would have access to facilities in Myanmar, such as they may be, at the same level of other citizens or perhaps within the language used in Clause 14.5 of the Ministerial Direction, the capacity to maintain basic living standards in the context of what is generally available to other citizens of that country.[43]
[43] The contents of Paragraph 93 of the Respondent's Statement of Facts, Issues and Contentions are referred to for the full details of this contention.
The Tribunal acknowledges that, whilst there are some facilities available, they are limited and with respect to the alcohol related health services referred to by the Respondent, the alcohol unit in the Mental Health Hospital of Yangoon’s East Dagon Township only accommodates 186 patients. In 2018 Yangon had a population of approximately 4.5 million people. It is also noted that Yangoon is not an area that is likely to be easy for the Applicant to adapt to, both in ethnic and language terms.
This also needs to be looked at with some degree of realism. Firstly, given the extensive health issues from which the Applicant suffers, his capacity to establish himself and maintain basic living standards even in the context of what is generally available to other citizens of Myanmar is most unlikely. If he cannot give evidence to this Tribunal it is difficult to see how he would be able to fend for himself, wherever he may return to in Myanmar, be it a city like Yangon or a more rural, semirural or remote area in Chin State. He would almost certainly need assistance which is unlikely to be forthcoming.
Another factor that should not be underestimated in an analysis of this consideration is that, even if the Applicant was able to identify the means to re-establish himself, including seeking housing employment and health assistance (which the Tribunal does not accept he would be able to do), the fact that he is at risk of or has a reasonable fear of, arbitrary arrest, imprisonment and torture as identified earlier in these reasons, may make him extremely reluctant to approach sources of assistance. In so far as such approaches may involve contact or dealing with the government or organs of the state, this may also expose him directly or indirectly to such arbitrary arrest, imprisonment and torture.
For these reasons, this factor weighs heavily in favour of revocation of the mandatory cancellation of the Applicant’s visa.
CONCLUSION.
The Applicant arrived in Australia in August 2008. He has been convicted of or charges have been proven against him concerning a number of offences. The most serious of those offences was the indecent assault of a minor, being a schoolgirl, in 2012. He was not given a custodial sentence for this offending. It was at the lower end of the scale. There have been two convictions in September 2014 and October 2015 of loitering in a public place frequented by children. He also has approximately 16 convictions for breaching bail conditions. Finally, there are approximately 26 offences recorded involving drunkenness.
He has been given several short custodial sentences for some of his offending.
There has been only one known victim of his offending. Most of his offending has occurred in the context of chronic alcohol addiction and mental health issues.
The nature and seriousness of the Applicants offending weighs marginally against revoking the mandatory cancellation of his visa.
The Tribunal considers that the risk to the Australian community should the Applicant reoffend in terms of the Applicant committing an indecent assault and loitering in a public place frequented by children are moderately low. The Applicant is more likely to reoffend by breaching bail or committing acts of public drunkenness if his chronic alcohol addiction and mental health problems are not addressed. However, overall, considering the material before the Tribunal, the conclusion must be reached that this consideration weighs marginally in favour of revoking the mandatory cancellation of his visa.
The expectations of the Australian community are always difficult to assess. In terms of the considerations that the Tribunal is obliged to take into account as noted earlier, it has not reached a conclusion that the Applicant poses an unacceptable risk given the circumstances of his background. The Tribunal acknowledges the government’s views concerning this consideration. However, for the reasons given, particularly the history of torture that he suffered prior to his arrival in Australia, this consideration weighs in favour of revoking the mandatory visa cancellation.
Much has been said earlier in these reasons concerning the risk of harm in the relevant sense that the applicant might be exposed to in the event that he were returned to Myanmar. Those matters are referred to and repeated. The Tribunal has found that if he were returned there is a very real risk that he would suffer harm by way of arbitrary arrest, imprisonment and torture. This consideration weighs heavily in favour of revocation of the mandatory cancellation of his visa. The Tribunal is also concerned as to the legal consequences of a decision not to revoke the mandatory cancellation of the Applicant’s visa.
The extent of impediments that the Applicant faces if he is returned to Myanmar have also been discussed. Given the history of torture that he previously experienced there, coupled with the conclusion that he will be unlikely to be able to re-establish himself upon his return as stated above, this consideration weighs heavily in favour of the revocation of the mandatory cancellation of his visa.
In balancing the several primary and other considerations under Ministerial Direction 65 which have been referred to previously, the Tribunal concludes that the weight attached to the comparatively low risk to the Australian community should the Applicant reoffend[44], the expectations of the Australian community[45], international non-refoulement obligations[46] and the extent of impediments if he is returned to Myanmar, outweigh all the other considerations. This is largely because the Applicant’s offending, whilst serious, was acknowledged by the sentencing court to be at the lower end of the scale. Much of his offending, as noted earlier, was caused by or involved his chronic alcohol dependence and probably his undiagnosed dementia and mental health conditions.
[44] Clause 13.1.2.
[45] Clause 13.3.
[46] Clause 14.1.
DECISION
The correct and preferable decision is that the reviewable decision of 19 October 2018 be set aside and substituted with a decision that the mandatory cancellation of the Applicant’s visa on 22 August 2017 be revoked.
I certify that the preceding 203 (two hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Cameron
...........................[sgd].............................................
Associate
Dated: 14 January 2019
Solicitors for the Applicant: Asylum Seeker Resource Centre Solicitors for the Respondent: Clayton Utz
"the most significant human rights issues included: arbitrary or unlawful killings; politically motivated arrests; authorities’ human rights violations against civilians in other ethnic minority areas and conflict zones, particularly in Kachin State and Shan State; continued harsh conditions in prisons and labor camps; restrictions on freedom of speech, assembly, and association, including intimidation and arrest of journalists; restrictions on freedom of religion; continued statelessness for some populations and severe restrictions on freedom of movement; criminalization of same-sex sexual activities, although the law was rarely enforced; and trafficking in persons, including forced labor of adults and children.
Although the government took some limited actions to prosecute or punish officials responsible for abuses, the vast majority of such abuses continued with impunity.
Some nonstate groups committed human rights abuses, including extrajudicial killings, forced labor of adults and children, and failure to protect civilians in conflict zones.”
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Remedies
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