PHMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4144
•20 October 2022
PHMK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4144 (20 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6336
Re:PHMK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Dr Linda Kirk
Date:20 October 2022
Date of written reasons: 23 November 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2022 to refuse the Applicant a Protection (subclass 866) visa on character grounds is set aside; and it is remitted to the Respondent for reconsideration with a direction not to refuse the Applicant’s visa under subsection 501(1) of the Migration Act 1958 (Cth).
................................[SGD]........................................
Senior Member Dr Linda Kirk
Catchwords
MIGRATION – refusal to grant protection visa on character grounds pursuant to s 501(1) of the Migration Act 1958 (Cth) – Applicant has substantial criminal record – whether there is another reason not to exercise discretion – Direction 90 – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – decision set aside and remitted for reconsideration with directions.
Legislation
Migration Act 1958 (Cth)
Cases
Cameron v The Queen (2002) 209 CLR 339
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR and Minister for Home Affairs [2019] FCAFC 185.
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member Dr Linda Kirk
23 November 2022
PHMK (‘the Applicant’) was born in the People’s Republic of China in 1990.[1] He arrived in Australia as the holder of a student visa in June 2007 at the age of 16 years.[2]
[1] Exhibit A1, [1].
[2] Exhibit R1, G26, 264.
The Applicant’s National Criminal History check dated 14 July 2022 records that on 25 August 2016, he was convicted by the District Court of Supply prohibited drug >= large commercial quantity – SI. He was sentenced to nine years’ imprisonment with a non-parole period of six years and three months. A charge of Possess prohibited drug (possession offence) was also taken into account on a Form 1 basis as part of sentencing. On appeal the NSW Court of Criminal Appeal reduced the sentence to six years and nine months with a non-parole period of four years and eight months.[3]
[3] Exhibit R1, G6, 25.
On 12 June 2018, as a result of this sentence, the Applicant’s Partner (Class BS) (Subclass 801) visa was mandatorily cancelled.[4] A delegate of the Minister (‘the Respondent’), and then a differently constituted Tribunal on review, decided not to revoke the mandatory cancellation.[5]
[4] Exhibit R1, G21, 183.
[5] Exhibit R1, G21, 181.
On 5 November 2019, the Applicant applied for a Protection (Class XA) (Subclass 866) visa (‘the protection visa’).[6]
[6] Exhibit R1, G19, 145-177.
On 19 March 2020, a delegate of the Respondent found the Applicant was not a person to whom Australia owes protection obligations.[7]
[7] Exhibit R1, G18, 136.
On review, the Migration and Refugee Division of the Administrative Appeals Tribunal (‘the Tribunal’) found the Applicant satisfied s 36(2)(aa) of the Act, and remitted the application to the delegate on 18 September 2020.[8]
[8] Exhibit R1, G13, 98.
On 14 January 2021, the Applicant was notified that consideration was being given to the refusal of his protection visa application pursuant to s 501(1) of the Act.[9]
[9] Exhibit R1, G10, 78.
On 26 July 2022, a delegate of the Respondent decided to refuse to grant the protection visa under s 501(1) of the Act (‘the Reviewable Decision’).[10]
[10] Exhibit R1, G3, 10.
On 18 July 2022, the Applicant was notified of that decision by way of email to his appointed representative.[11]
[11] Exhibit R1, G2, 7.
On 4 August 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision.[12]
[12] Exhibit R1, G1.
The matter was heard by the Tribunal on 6 and 7 October 2022. The Applicant attended the hearing in person and was represented by counsel. He gave oral evidence and was cross-examined at the hearing.
The following persons also gave oral evidence and were cross-examined at the hearing:
·Dr Emily Kwok
·LC, the Applicant’s wife
·QL
The material before the Tribunal consists of:
·Statement of the Applicant dated 3 September 2022 – Exhibit A1
·Applicant’s Tender Bundle filed on 4 September 2022 – Exhibit A2
·Applicant’s Supplementary Tender Bundle filed on 30 September 2022 – Exhibit A3
·Report of Dr Kwok dated 22 September 2022 – Exhibit A4
·Statement of LC dated 03 September 2022 – Exhibit A5
·Statement of QL dated 30 September 2022 – Exhibit A6
·Section 501G Documents filed on 17 August 2022 – Exhibit R1
·Supplementary Section 501G Documents filed on 21 September 2022 – Exhibit R2
·Respondent’s Tender Bundle filed on 21 September 2022 – Exhibit R3
The Tribunal has reviewed the evidence before it and refers to all relevant materials below.
LEGISLATION
Section 501(1) of the Act provides that:
… The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Subsection 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by subsection 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[13]
[13] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[14]
[14] Direction [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[15] Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as Kenny and Mortimer JJ stated in their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another: ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.[16]
[15] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
[16] (2016) 241 FCR 461 at [57].
ISSUES FOR DETERMINATION
The two issues for determination by the Tribunal are:
1)whether the Applicant can satisfy the Tribunal that he passes the character test; and, if not,
2)whether the Tribunal should exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant.
If the Applicant satisfies the Tribunal that he passes the character test, the weight of authority indicates that the Tribunal must not refuse to grant the visa to the Applicant. If the Applicant does not satisfy the Tribunal that he passes the character test, the Tribunal must consider whether to exercise its discretion to refuse to grant the visa.
EVIDENCE BEFORE THE TRIBUNAL
Migration to Australia and family
The Applicant arrived in Australia in June 2007 at the age of 16 years. He held a student visa and studied English at a language school.[17] After ceasing his studies, he worked at a restaurant and then obtained work as a gyprocker and painter.[18] He was employed by his uncle and worked six days a week.
[17] Transcript, 15.
[18] Ibid.
The Applicant met his girlfriend, LC, also from China, and their first son, TYHH was born in 2009. They married in 2011 and their second son, AH, was born that year.[19]
[19] Exhibit R1, G8, [59].
In 2011, the Applicant was granted permanent residency in Australia,[20] and he worked on and off thereafter as a labourer.[21]
[20] Ibid.
[21] Ibid.
In March 2014 the Applicant became unemployed. He told the Tribunal that this was due to an economic downturn in the gyprock industry that affected a lot of people. His services were no longer required by his uncle as there was not enough work.[22]
[22] Transcript, 16.
At this time, the Applicant was the sole financial provider for his family as his wife was not in paid employment as she was taking care of their children. The Applicant told the Tribunal that he was ‘under a lot of pressure’ because he did not have a source of income but ‘still had to take care of the whole family’ and they ‘had a lot of expenses at that time.’ They only had a limited amount of savings. He tried to find another job through contacting several friends in the industry. They too were unemployed and were unable to assist him find suitable work.[23]
[23] Transcript, 17.
Drug use and gambling addiction
When he became unemployed, the Applicant began to spend time with a friend, Amin, and a co-worker, Mr Huang. They both used drugs and they told the Applicant that if he were to use drugs, it would help him to ‘relieve the pressure’. He was ‘young’ and ‘curious’ and he started using methamphetamine (ice) and became addicted to the drug.[24] He also started playing poker machines and became addicted to gambling and lost a lot of money. During the period March to May 2014, the Applicant was gambling about $1000 to $2000 per week.[25] He borrowed money from Amin and accumulated a debt of around $20,000.[26]
[24] Transcript, 6.
[25] Transcript, 18, 20.
[26] Transcript, 5.
The Applicant’s evidence is that he was unable to repay his loan to Amin and so Amin started asking him to do tasks for him. Amin asked the Applicant and Mr Huang to make calls overseas and place orders and make other transactions on his behalf.[27] Amin then asked the Applicant and Mr Huang to deliver 15kg of ephedrine.[28] Initially they refused, and Amin verbally threatened them, and said that if they did not do what he asked he would harm their families.[29] The Applicant claims that Amin stabbed Mr Huang, after which he was ‘very afraid’ and he did what he was told.[30] Amin promised them that if they made the delivery, they would not have to repay the debt they owed to him.[31] The Applicant confirmed that he was aware that supplying drugs is a crime.[32]
[27] Transcript, 20.
[28] Transcript, 21.
[29] Transcript, 5, 22, 23.
[30] Transcript, 6, 23.
[31] Transcript, 21.
[32] Transcript, 21.
Criminal History
The Applicant has convictions for two drug offences, the first and principal offence being Supply prohibited drug >= large commercial quantity – SI, for which he was initially sentenced to a period of imprisonment of six years and nine months by the NSW Court of Criminal Appeal on 21 May 2018. A charge of Possess prohibited drug (possession offence) was also taken into account on a Form 1 basis as part of sentencing for the principal offence.[33]
[33] Exhibit R1, G6, 25.
The facts surrounding the Applicant’s offending are summarised in Johnson J’s judgment in the NSW Court of Criminal Appeal:
On 12 May 2014, Mr Huang negotiated with an undercover police officer (“UCO”) and agreed to supply 15 kilograms of ephedrine at a price of $80,000.00 per kilogram. The large commercial quantity for ephedrine is five kilograms.
On 20 May 2014, Mr Huang and the UCO met at a carpark in Auburn. The UCO showed Mr Huang the money ($1.2 million in cash). Mr Huang then spoke to [the Applicant] to arrange for the latter to attend with the drugs. A short time later, [the Applicant] and Mr Chen arrived.
[The Applicant] handed Mr Huang a bag containing five kilograms of ephedrine. The drugs were then handed to the UCO. There was then a discussion about the remaining drugs (10 kilograms). Mr Huang said they would arrive in a few minutes.
Meanwhile, Mr Chen spoke to Mr Lin who was either in or near a car that Mr Lin had provided, knowing it was to be used in a drug transaction. Mr Chen removed a backpack containing 10 kilograms of ephedrine from the boot of the vehicle and took it to Mr Huang and the UCO. After the UCO was shown the contents of the bag and Mr Chen was walking away, police swooped and arrested Mr Huang, Mr Chen and [the Applicant].
Mr Huang was arrested next to the UCO’s vehicle. Mr Chen, who was quite some way across the carpark, attempted to flee but was captured and arrested. Mr Chen has been an illegal immigrant since 15 March 2011.
Mr Lin had driven away from the place where he met the Applicants and got into another vehicle. [The Applicant] was then arrested along with other people in the vehicle.
[The Applicant] drove his vehicle out of the carpark. [The Applicant] was blocked by police and reversed violently away from the police vehicle, but was obstructed from behind by the police and arrested.
A Toyota vehicle registered to [the Applicant] was searched and the police located, amongst other property, two foreign exchange records disclosing the exchange of Australian dollars for Chinese currency in sums of about $9,000.00 and $18,500.00, a large number of resealable plastic bags and a bill of lading pertaining to a container used to import illegally 42 kilograms of ephedrine in the name of a Chinese man, Mr Shi Teng Fei, who was said to be residing at an address in Park Road, Auburn. A number of the items were examined and were found to test positive for ephedrine.
Police attended the premises at Park Road, Auburn and discovered they comprised a sparsely furnished unit which was devoid of clothing and personal effects. The premises appeared to be used as a safe house.
Police also searched the premises at Wilmot Road, Auburn where [the Applicant] resided and found multiple documents and two passports in his name, three mobile phones, digital scales and food saver bags including a sealed food saver bag containing 22 grams of ephedrine, the purity of which was assessed at 78.5% (the Form 1 charge with respect to [the Applicant]).
The scales found in [the Applicant’s] premises tested positive for ephedrine and his fingerprint was located on them as well as on a box containing the bags.
Analysis of the two bags showed there was a total of 14.935 kilograms of ephedrine with a purity of 77.5% and 78.5% respectively.
Traces or presumptive evidence of ephedrine was found on a number of items as well as on [the Applicant’s] jeans and singlet and also on the jeans of Mr Chen.
The Applicant admitted before the Court that his involvement extended to packaging the drugs, using his vehicle to deliver the drugs, and completing transactions by way of his mobile phone.[34]
[34] Exhibit R1, G7, 42; Exhibit R1, G8, 66-67.
In resentencing the Applicant, the NSW Court of Criminal Appeal noted that his criminality was less than that of Mr Huang and that the Applicant played a secondary role so that he stood at the “second tier of the known hierarchy involved in this joint criminal enterprise”,[35] and became involved in the enterprise for financial gain.[36] The Applicant contended in sentencing that part of his motivation for having been involved in the supply of ephedrine was that his family was threatened. The sentencing Judge rejected this claim.[37]
[35] Exhibit R1, G7, 58.
[36] Ibid, 58-59.
[37] Ibid, 57.
The sentencing Judge, Judge Lakatos SC, noted that the Applicant began using the drug “ice” several months before the offence, and he claimed to have a gambling addiction spending $500 to $1000 per week on card games and poker machines. He found that the Applicant’s motivation in becoming involved in the offence was to clear his gambling and drug debts with him owing some $20,000.[38] The Applicant has no prior criminal history, and a finding of prior good character was made in his favour. The sentencing Judge reached no firm conclusion on issues of remorse and the Applicant’s prospects of reoffending and rehabilitation.[39] His Honour found there were special circumstances in the Applicant’s case, arising from his need for rehabilitation and issues concerning gambling.[40]
[38] Ibid, 58-59.
[39] Ibid, 46.
[40] Ibid, 60.
On appeal, the Applicant was resentenced to a term of imprisonment for six years and nine months comprising a non-parole period of four years and eight months commencing on 20 May 2014 and expiring on 19 January 2019, with a balance of term of two years and one month commencing on 20 January 2019 and expiring on 19 February 2021.
Remorse and responsibility for offending
In his sentencing remarks dated 25 August 2016, Judge Lakatos SC noted that the Applicant had no criminal history, and he entered a plea of guilty and accepted responsibility for his offending. His Honour referred to a report dated 19 October 2015 by Marlene Headington, psychologist, who reported that the Applicant had expressed his remorse to her.[41]
[41] Exhibit A3, 142.
During his oral evidence at the hearing, the Applicant told the Tribunal that following his offending he felt ashamed of his criminal behaviour. He continued:[42]
I still have the same position. I’m still feel very regretful. I did a horrible thing and what I did, my behaviour, harmed the Australian society and also my families. I feel so sorry and I wish to be given another opportunity to go back to the community and contribute to the community.
[42] Transcript, 11.
Rehabilitation
A case note report from the NSW Department of Corrective Services dated 30 October 2018 reports that due to the Applicant’s low/medium LSI-R he was ineligible to engage in programs whilst he was in prison.[43] In his evidence, the Applicant stated that he requested to participate in programs in prison, but he was advised that as his situation ‘was not very severe’ he was unable to do so. In addition, he has limited English, and this language barrier meant that he was unable to understand the material.[44] The Applicant was asked whether he was aware he could attend Narcotics Anonymous meetings in prison, and he said he did not know this, and he did not receive any notifications. Had he been notified, he ‘would have definitely take (sic) part at (sic) these courses.’[45]
[43] Exhibit R3, 35; Exhibit A3, 71.
[44] Transcript, 9.
[45] Transcript, 25.
The Applicant told the Tribunal that he last consumed drugs on the evening before he was arrested in May 2014.[46] He believes that he no longer has a drug or gambling problem, but he is willing to engage in intervention and rehabilitation programs to address these issues when he returns to the community.[47] He agreed that he has not made any plans to participate in such courses.[48]
[46] Transcript, 7.
[47] Transcript, 10, 13, 24, 25, 38.
[48] Transcript, 26.
Behaviour and work in prison
In his statement dated 3 September 2022, the Applicant described his behaviour and activities while he was in prison:[49]
During my time in prison, I behaved myself. I believe the sentence I received has functioned as a deterrent against me reoffending again in the Australian community. During my time in prison, I connected with the Catholic faith, attended church services, and behaved myself in prison.
I was not able to undertake rehabilitation in prison owing to considerable language barriers. Without having a satisfactory command of the English language, I simply was not able to participate in rehabilitation programs. However, I avoided drugs in prison, kept in close contact with my family and kept my head down.
I undertook work in the prison environment as a packager for earphones. I also worked in the laundry. I attended gym and went to the library.
[49] Exhibit A1, [12]-[14].
Christianity
The Applicant’s evidence is that he is a Christian and follows the teachings of Catholicism. He became a Catholic in around 2016 when he was in prison.[50] He has not been baptised, but he joined a WeChat group and attended online classes on Sundays at Villawood.[51]
[50] Transcript, 39, 44.
[51] Transcript, 40, 41.
Risk of reoffending
In her report, Ms Headington considered that the Applicant was a low risk of re-offending. She noted that the Applicant had a number of protective factors such as his supportive family in China, his uncle in Australia, his attachment to his wife and children and strong work ethic.[52]
[52] Exhibit A3, 142.
In his statement dated 3 September 2022, the Applicant explained why he believes he will not re-offend:[53]
I do not believe I am a material risk of reoffending if released into the Australian community. I was granted parole at the end of my non-parole period. I have an extremely limited criminal history. I successfully served my period of imprisonment. I continue to be in a committed and loving relationship with my wife. Despite my lengthy absence from the Australian community, I have maintained a good relationship with my children in Australia. I have kept out of trouble during my time in prison and immigration detention. I have become a committed member of the Catholic faith. I have cut off old friends that had a negative influence in my life.
I appreciate more so than ever how bad drugs are in the community. I have seen drug users in prison and immigration detention. I have taken some English classes during my time in immigration detention. I have been off drugs for many years. I have not taken drugs during my time in prison and immigration detention. Going to prison was a massive lesson for me. I never want to go back to that place ever again.
[53] Exhibit A1. [17]-[18].
Relationship with wife and children
In his statement dated 3 September 2022, the Applicant described his relationship with his wife and children:[54]
I continue to be in a loving and committed relationship with my wife, Lan Chen. We speak daily on the telephone and on videocalls. We have a good relationship, despite my physical absence at the present time. I love my wife very much and she means the world to me.[55]
I am grateful that my wife has remained loyal to me, despite my lengthy period in prison and immigration detention.[56]
I also continue to have a loving and warm relationship with my two children in Australia, TH (aged 13) and AH (aged 11). As with my wife, I speak to my children on the telephone and through videocalls daily. My children are always happy when they speak with me. Equally, I am always happy when I speak with my children.[57]
…
During my time in immigration detention, I continued to speak to my family daily. Before the COVID-19 pandemic, my family would visit me in the immigration detention facility. Once COVID-19 hit, physical visits were not permitted. As a result, our communications in more recent times have been by telephone and video calls. Thankfully, I have been able to remain close to my family in Australia despite my prolonged time in immigration detention.[58]
…
To see the sadness and struggle my wife and children have faced since I have been arrested has been very confronting. I just want to get out and take care of them to the best of my ability. I value my family more so than ever before. I am obviously an older man now. I am more mature than when I was younger.[59]
[54] Ibid, [7].
[55] Ibid, [8].
[56] Ibid, [9].
[57] Ibid, [16].
[58] Ibid, [16].
[59] Ibid, [19].
Plans for the future
In his statement dated 3 September 2022, the Applicant outlined his plans for the future if he is released into the community:
If I am released into the Australian community, it is my priority to provide my family with strong emotional, financial, and practical support. I have missed being able to provide my immediate family in Australia with proper financial and practical support, given my lengthy period of imprisonment and time in immigration detention.[60]
…
I am absolutely committed to finding employment in the Australian community and supporting my family. That will be my priority if released into the Australian community. I will otherwise attend church services with my wife and children. I will spend valuable time with my family.[61]
…
In the fullness of time, I would also like to open my own construction business and work in that industry. I have relevant experience and skills in decoration and gyprock. With appropriate dedication and determination, I know I can be successful if given a chance in Australia.[62]
[60] Ibid, [10].
[61] Ibid, [20].
[62] Ibid, [22].
In his oral evidence, the Applicant told the Tribunal he has been offered a position as a foreman at his friend’s company and he will be able to commence work immediately. He plans to get a building licence and once he has saved some money, he wants to start his own company. On weekends he will go to church with his family, do some volunteer work and go to the gym and work out.[63]
[63] Transcript, 13.
LC, Applicant’s wife
LC provided a statement dated 3 September 2022,[64] and gave oral evidence at the hearing. In her statement, she wrote that her children ‘love their father very much and would really like him to come home soon.’ Both children are currently ‘showing signs of rebellion’ and do not listen to her. The children ‘desperately need their father more fully in their daily lives’ and she needs him home.[65]
[64] Exhibit A5.
[65] Ibid,[13].
LC told the Tribunal that when the Applicant was in Silverwater prison, she and the children would visit him every weekend and, when he was transferred to Nowra, they visited him once a fortnight. The children really miss their father and they wanted to visit him in gaol.[66] They spoke by telephone three or four times a week during his term of imprisonment. Currently she and her two children are in daily contact with the Applicant via phone calls and videos.[67]
[66] Transcript, 47.
[67] Ibid, 46-47
LC told the Tribunal that her children ‘long for their father’s return and they look forward to their father accompanying them and bringing them out for fun.’ They ask her often ‘when will their father come back and they feel that other kids … have their own father but they don’t.’[68] If the Applicant is able to return to the community, they will ‘be a complete family together.’ The Applicant will be able to help her so that she does not feel tired anymore.[69]
[68] Ibid,, 48.
[69] Ibid.
In her statement, LC described the impact on her of the Applicant’s ongoing absence:[70]
I am currently facing considerable emotional, financial, and practical hardship. I live alone with my two children. I really need my husband to come home and rejoin the family. It will allow me to potentially work less, spend more time with our children and provide more emotional support to my husband.
Our family has already suffered very significantly because of my husband’s lengthy period of imprisonment and prolonged period in immigration detention.
[70] Exhibit A3, [24]-[25].
LC told the Tribunal that she believes that the Applicant is ‘fully remorseful’ and ‘understands that his behaviour has a huge impact on the society and also the community.’[71] She has ‘full confidence’ that he will not commit any criminal offences if he is released into the community.[72]
[71] Transcript, 48.
[72] Ibid.
During cross-examination, LC admitted that in 2014 she did not know that the Applicant was involved in an arrangement to supply a large quantity of illegal drugs. Nor was she aware that he was addicted to methamphetamines, gambling extensively and had a gambling debt of $20,000. She did not believe at the time that he was capable of being involved in any of these activities.[73] However she believes that he has now overcome his addiction to drugs and gambling, and he will ‘definitely not’ relapse. She believes that the Applicant wants to be an ‘example for the kids and to be their role model’ and so she believes that he will not relapse into drug taking. She agreed that if he were to do so it would have a negative effect on the children.[74]
[73] Ibid, 49.
[74] Ibid, 51.
In her statement, LC wrote that if the Applicant is released into the community, he will get a job in the construction industry, and they will attend church as a family on a weekly basis.[75]
[75] Exhibit A3, [22].
QL
QL provided a written statement dated 30 September 2022,[76] and gave oral evidence at the hearing.
[76] Exhibit A6.
In his statement, he wrote that the Applicant is a good friend, and he has known him for about 15 years.[77]
[77] Ibid, [8].
In his oral evidence at the hearing, QL told the Tribunal that he is a manager at LH Construction and is responsible for hiring employees.[78] In addition to being friends with the Applicant, he has previously worked with him at the same construction sites.[79] He has observed the Applicant allocating work to other workers and giving instructions and he thought he did a good job.[80] He can offer the Applicant full-time employment at LH Construction as a foreman for five to six days a week.[81]
[78] Transcript, 53-54.
[79] Ibid, 55.
[80] Ibid, 56.
[81] Exhibit A3, [9].
QL told the Tribunal that workers at his company undergo random drug tests, and if the Applicant was affected by drugs this would be detected and there would be consequences for his employment.[82] He has observed that the Applicant has ‘demonstrated major changes’ and ‘he is fully aware of the drugs impact on him and also the people around him’ and he believes that the Applicant would not touch drugs again.[83]
[82] Transcript, 56-57.
[83] Ibid, 56.
Dr Emily Kwok, Clinical and Forensic Psychologist
Dr Kwok provided a written report dated 22 September 2022,[84] and gave oral evidence at the hearing.
[84] Exhibit A4.
In her opinion, at the time of his offending the Applicant was likely suffering from Adjustment Disorder. Dr Kwok explained this in her report:[85]
Based on [the Applicant’s] description of his symptoms at the time he offended and the period leading up to the offending, he was experiencing severe levels of stress. His symptoms had likely met the criteria of Adjustment Disorder with anxiety as defined by the Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5). Adjustment Disorder is the development of emotional and behavioural symptoms in response to identifiable stressors. The psychological condition can cause impairment in an individual’s social, practical or occupational functioning. In [the Applicant’s] case, the main identifiable stressor was his unemployment at the time and the anxiety about his future ability to provide for his family. The arguments with his wife and his accumulating gambling debt had likely added to his emotional distress.
[85] Ibid, [49].
In Dr Kwok’s opinion, the Applicant does not currently suffer from a mental disorder or illness:[86]
[The Applicant’s] current symptoms do not meet the criteria for a mental disorder or illness. He does, however, present with anxiety that is related to his uncertainty about the outcome of his immigration matter. In particular, he is anxiously distressed about the possibility that he could be subject to prolonged detention and be permanently separated from his family.
[86] Ibid, [52].
In relation to whether the Applicant’s risk of future offending and whether he may pose a risk to the Australian community, Dr Kwok stated:[87]
… it is taken into consideration that he was a law-abiding person and contributing member of the community before the offences in 2014. He does not present as inherently antisocial in attitude or behavioural patterns. His criminal behaviours were specific to his involvement with other offenders through his drug use and gambling, which are no longer risk factors for [the Applicant] … [A]ccording to [the Applicant], he has not contacted the co-offenders nor has he used drugs since 2014. Furthermore, the availability of family support and stable living condition in the community are additional protective factors to reduce his likelihood of future problematic behaviours. Based on these protective factors, it is my opinion that [the Applicant’s] prospects of rehabilitation is positive. His likelihood of recidivism is low and he poses a low risk to the community.
[87] Ibid, [46].
In her oral evidence at the hearing, Dr Kwok told the Tribunal that the risk of offending reduces with age, and the fact the Applicant is eight years older than he was at the time of the offences contributes to his low risk of recidivism.[88]
[88] Transcript, 32.
In her report, Dr Kwok provided her opinion on the impact on the Applicant’s mental health if he were subjected to prolonged immigration detention:[89]
Prolonged immigration detention will be a great burden on [the Applicant] because of his low risk of reoffending and he will not be able to engage the family support which he has in the community. His psychological wellbeing will suffer considerably because prolonged detention will prevent him from establishing a network of social support and accessing employment that are available in the community, and that are necessary for his successful rehabilitation and reintegration. If [the Applicant’s] Adjustment Disorder is not resolved over time, it could develop into a Major Depressive Disorder or Anxiety Disorder.
CONSIDERATION AND REASONS
[89] Exhibit A4, [55].
1) Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal he does not dispute the information in the National Criminal History Check report dated 14 July 2022 recording his criminal convictions and sentences. It records that on 25 August 2016 he was convicted by the District Court of Supply prohibited drug >= large commercial quantity – SI and sentenced to nine years’ imprisonment with a non-parole period of six years and three months. On appeal the NSW Court of Criminal Appeal reduced the sentence to six years and nine months with a non-parole period of four years and eight months.[90]
[90] Exhibit R1, G6, 25.
The Applicant concedes that does not pass the character test by virtue of his “substantial criminal record”,[91] deriving from the imposition of a term of imprisonment upon him of 12 months or more.[92] It follows that the Applicant does not pass the character test, and the discretion to refuse to grant the Applicant a visa in s 501(1) is enlivened.
2) Should the Tribunal exercise its discretion conferred by s 501(1) of the Act to refuse to grant the visa to the Applicant?
[91] Migration Act s 501(6)(a).
[92] Migration Act ss 501(7)(d), 501(7A).
In considering whether the exercise its discretion under s 501(1) of the Act to refuse to grant the protection visa to the Applicant, the Tribunal has had regard to the following Considerations as required by the Direction.
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) …
(ii) ...
(iii) …
(iv) …
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) …
g) …
The Tribunal finds that the Applicant’s offending was very serious. He pleaded guilty to the supply of 14.935kg of ephedrine and possession of 220 grams of ephedrine.[93] Under the Drug Misuse and Trafficking Act 1985 (NSW), a large commercial quantity of ephedrine is defined to be 5kg. The Applicant played a significant role in the supply of almost 15kg of ephedrine which was valued at $1,200,000.[94]
[93] Exhibit R1, G7, 46.
[94] Ibid, 30.
Having regard to paragraph 8.1.1(1)(c) of the Direction, the Tribunal finds that the seriousness of the Applicant’s offending is confirmed by the sentence imposed. The Applicant was sentenced to six years and nine months’ imprisonment, despite not having a criminal record. In sentencing, the District Court found the Applicant’s offending to be “more sophisticated” than a straight supply offence as it was in support of a “planned or organised criminal activity”.[95] The offence Supply prohibited drug >= large commercial quantity – SI is punishable by a maximum of life imprisonment.[96] Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[97]
[95] Ibid, 45.
[96] Ibid, 28.
[97] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]; Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587 at [21].
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is very serious in nature, and this weighs in favour of the exercise of the discretion to refuse to grant the protection visa to the Applicant.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view 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.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
In accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future reoffending of a similar nature by the Applicant would have the potential to cause considerable harm to members of the Australian community. The effects of offending relating to the illicit drug trade includes harm to users, crimes committed by users, and the potential cost to the community of law enforcement, the justice system, and the public health system.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal has considered the information and evidence before it on the risk of the Applicant re-offending, and finds for the reasons that follow, that the Applicant is a low risk of re-offending.
The evidence before the Tribunal demonstrates that the Applicant is genuinely remorseful for his actions and has accepted full responsibility for his offending. The sentencing remarks of Judge Lakatos SC dated 25 August 2016 note that the Applicant entered a plea of guilty at the earliest opportunity and expressed his remorse for his offending to Ms Headington. The Applicant’s plea of guilty is evidence of acceptance of responsibility and a willingness to facilitate the course of justice.[98] His evidence to the Tribunal is that he fully appreciates the wrongfulness of his actions and the deleterious effects of drugs on their users and the community. The Applicant’s evidence was corroborated by his wife, LC and his friend QL, both of whom testified that he is remorseful in relation to his criminal offending, and is aware of the significant harm drugs have in the community.
[98] Cameron v The Queen (2002) 209 CLR 339.
The Applicant has demonstrated insight into the contributors to his offending, particularly his drug and gambling addictions. In her report, Ms Headington concluded that at the time of his offending the Applicant met the criteria for a diagnosis of Substance Abuse Disorder. In Dr Kwok’s opinion the Applicant was suffering from Adjustment Disorder when he committed his offences. The Applicant claims that he is now in full remission in relation to his drug addiction, and in Dr Kwok’s view he is no longer suffering from a diagnosable mental disorder or illness.[99]
[99] Exhibit A4, [52].
The evidence before the Tribunal is that the Applicant did not undertake any rehabilitation programs in prison. A case note report from the NSW Department of Corrective Services dated 30 October 2018 reports that he was ineligible to engage in such programs due to his low/medium LSI-R.[100] Despite not participating in any drug rehabilitation programs, the Applicant has remained abstinent from drugs for a period of more than eight years.
[100] Exhibit R3, 35; Exhibit A3, 71.
The Applicant attributes the financial pressure he was under due to him being unemployed and the sole provider for his family as contributing to his offending. Whereas this does not excuse or mitigate his criminal offending, it does support a finding that the risk of the Applicant committing similar offences in future is decreased in circumstances where the Applicant has paid employment and his wife also is working. The evidence before the Tribunal is that the Applicant has an offer of full-time employment in the construction industry and his wife also works full-time. In making this finding, the Tribunal has had regard to the evidence that, prior to the offending for which he was convicted, the Applicant had not previously been charged or convicted of any other criminal offence.
In her report, Ms Headington concluded that the Applicant was a low risk of re-offending. Dr Kwok reached the same conclusion in her report. As she observed, before committing the offences in 2014 the Applicant was a law-abiding and contributing member of the community. His criminal activity was limited to a short period of time and related to his unemployment, drug use and gambling addiction. These are no longer risk factors for the Applicant, and together with the protective factors, particularly his supportive family and prospects of employment, he has very positive prospects of rehabilitation. The evidence is that there are no reported incidents of misconduct by the Applicant in prison or immigration detention, and that he was reported as having a good work performance and work ethic.[101] The Tribunal further notes that the Applicant was held in minimum security in prison,[102] and was granted parole at the first available opportunity.[103]
[101] Exhibit A3, 17, 21.
[102] Ibid, 2-5.
[103] Ibid, 73.
During his time in prison the Applicant became a Christian, and he has continued to practice his faith since being transferred to immigration detention in January 2019. His evidence is that practising his religion has brought him a sense of ‘calm’,[104] and it has helped him to find the strength to leave behind old habits and move forward in a positive direction. The Applicant’s wife corroborated his evidence that they intend to go to church together as a family.[105]
[104] Transcript, 41.
[105] Ibid, 50.
On the basis of the evidence before it and taking into account available information and evidence of the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is low. Whereas the Tribunal finds that the Applicant is a low risk of re-offending, the extent of harm that would be caused should he re-offend in the same or similar manner would be very significant. Having regard to the nature of this harm, the Tribunal finds that even a low risk of the Applicant re-offending is unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, the Tribunal finds that Primary Consideration 1 weighs in favour of exercising the discretion to refuse to grant the Applicant the protection visa.
Primary Consideration 2 – Family violence committed by the non-citizen
Paragraph 8.2(2) of the Direction provides that this Primary Consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence. As the Applicant has not committed family violence offences, this consideration is not relevant.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct
The relevant minor children are the Applicant’s two biological sons, TYHH born in 2009 aged 13 years and AH born in 2011 aged 11 years. Paragraph 8.3(3) of the Direction requires the Tribunal to consider the interests of each child individually to the extent that their interests may differ.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the relationship between the Applicant and his children is strong, loving, and ongoing. He speaks to the children daily on the telephone and by FaceTime. The Applicant’s relationship with his children has inevitably been impacted by his lengthy period in prison and immigration detention. Despite the Applicant's physical absence from his children, he has maintained steady and committed contact with his children. The evidence is that when the Applicant was in prison, his wife and children would visit him in gaol frequently and regularly, and these visits continued when he was transferred to immigration detention.
Relevant to the factors in paragraph 8.3(4)(b) of the Direction, if the Applicant is released into the Australian community, he is likely to play a positive parental role for his children until they reach adulthood. The Applicant will provide the children with emotional, financial, and practical support needed for their subsistence and advancement in life.[106] As the children are aged 13 and 11 years respectively, collectively there are a number of years during which the Applicant will be able to contribute to their development. The evidence demonstrates that the Applicant's children miss their father and are adversely impacted by his continuing physical absence. The children regularly ask LC when their father is coming home, and do not understand why he does not attend school events and the like. The evidence before the Tribunal is that LC is struggling to take care of and discipline the children by herself, and this is affecting her physical and mental health. Relevant to paragraph 8.3(4)(c), there is no evidence that the Applicant's prior criminality has had a direct negative impact on the children. As the Tribunal has found that there is a low risk of the Applicant reoffending, there is very little likelihood that future conduct will have a negative impact on the children.
[106] Exhibit A1, [10].
In relation to the factors in paragraphs 8.3(4)(e) and 8.3(4)(f) of the Direction, the evidence is that the Applicant's two children currently reside with their biological mother in Sydney. Accordingly, there is another person who already fulfils a parental role in relation to the children. However, the evidence shows that the Applicant’s wife is suffering considerably without the Applicant at home to support her in the care and upbringing of the children. She is working full-time to support the children, and she is struggling physically and emotionally.
Relevantly to the factors in paragraph 8.3(4)(g) and 8.3(4)(h) there is no evidence that the Applicant's children have faced any harm from him in the past. Nor is there evidence that the children would be at risk of harm from the Applicant if he is released and returns home to live with them.
On the basis of the evidence before it, the Tribunal finds that it is clearly in the best interests of the Applicant’s two children for the discretion not to be exercised to refuse the Applicant the protection visa.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) …
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e) …
(f) …
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs, (‘FYBR’).[107] The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[108]
·It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations.[109]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[110]
·It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of ‘appropriateness’.[111]
[107] [2019] FCAFC 185.
[108] Charlesworth J at [66]; Stewart J at [91].
[109] Charlesworth J at [67]; Stewart J at [104].
[110] Charlesworth J at [76].
[111] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of refusal of a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[112] As a normative expression, this consideration indicates the likelihood that community expectations will in most cases lead to refusal of a visa, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[112] Charlesworth J at [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has been convicted of two drug offences in Australia. Having regard to the principles in sub-paragraph 5.2(2)-(5) of the Direction, the Australian community would expect that the Applicant should not be granted a visa on account of the very serious nature of his drug offences and his involvement in a criminal enterprise.
The Applicant arrived in Australia in 2007 at the age of 16 years, and he is now aged 32 years. Having regard to the principles in sub-paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has resided in Australia, the Tribunal finds that the Australian community would likely afford some degree of tolerance for his criminal behaviour as he has lived in Australia for 15 years. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period. However, this tolerance would be mitigated by the fact that the Applicant has been incarcerated in gaol or detention for eight years, being more than half of the time he has resided in Australia.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 weighs in favour of exercising the discretion to refuse to grant the Applicant the protection visa.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection (‘Suleiman’):[113]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[113] (2018) 74 AAR 545 at [23].
In FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[114] Wigney J held that this analysis ‘tends to overcomplicate or over intellectualise the issue’. His Honour held that the use of the word ‘generally’ in clause 8(4) of Direction 79 (the same wording is used in section 7(2) of Direction 90) ‘recognises that there may well be cases where the circumstances are such that one or more “other considerations” may be deserving of more weight than one or more primary considerations’.[115] His Honour also held that the formulation identified in Suleiman ‘is at least potentially problematic because it tends to suggest that a decision-maker cannot give greater weight to one or more of the “other considerations” in any given case unless they consider that the case is somewhat unusual or out of the ordinary’.[116]
[114] [2021] FCA 775 [22].
[115] at [23].
[116] Ibid.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
International non-refoulement obligations
Paragraph 9.1 of the Direction relevantly provides:
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, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa under section 501 of the Act, in a request to revoke under section 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
6)It may not be possible at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non-citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will 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 – see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non refoulement obligations.
The Applicant is a national of China. He has made submissions in his protection visa application as to why his application should not be refused, including claims about the risk of harm he will face if he is returned to China. In particular, the Applicant stated that he is fearful of returning to China due to a risk that he will be prosecuted under Chinese criminal law which allows for individuals who commit crimes outside China to be retried for that crime on return to China (double jeopardy). He states that there is a real risk he would be sentenced to the death penalty.[117]
[117] Exhibit R1, G13, 84-98.
Similar claims have previously been assessed by the Tribunal differently constituted, which on 18 September 2020 remitted his protection visa application for reconsideration by the Respondent with the direction that he satisfies s 36(2)(aa) of the Act. After considering the seriousness of the Applicant’s offences against the country information, the Tribunal found that there is a real risk he could be re-prosecuted for upon his return to China and, as a result, may be sentenced to indefinite periods of imprisonment or the death penalty.[118]
[118] Exhibit R1, G13, 98-119, 115.
Having regard to these findings, the Tribunal accepts that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there is a real risk he would suffer significant harm in China which may include the death penalty. Accordingly, the Tribunal accepts that the Applicant is a person in respect of whom Australia has non-refoulement obligations.
If the Tribunal affirms the Reviewable Decision, the combined operation of ss 501E and 48A of the Act will prevent the Applicant from making any further substantive visa applications whilst he is in the migration zone. Pursuant to s 197C(3) of the Act, an unlawful noncitizen in respect of whom a protection finding has been made in relation to a finally determined application for a protection visa will not be liable for removal pursuant to s 198 of the Act. Accordingly, the protection finding made in relation to the Applicant means that his removal to China is neither required nor authorised by s 198.
Consequences of finding that non-refoulement obligations are owed
Having found that the Applicant engages Australia’s non-refoulement obligations, the Tribunal has considered the consequences of a non-revocation decision in circumstances in which he cannot be involuntarily removed from Australia. As a consequence of the recent amendments to section 197C of the Act,[119] there are four possible outcomes for the Applicant:
·He remains detained for an indefinite period but, at some time in the future, a third country expresses a willingness to accept him;
·He remains detained for an indefinite period but, at some time in the future, the Minister exercises a non-compellable power in section 195A or 197AB to allow the Applicant to remain in Australia otherwise than in detention;
·He remains detained for an indefinite period but, at some time in the future, chooses to voluntarily return to China; or
·He remains detained for as long as can reasonably be foreseen in the future.
[119] Section 197C addresses the relevance of Australia’s non-refoulement obligations to the removal of non-citizens from Australia as required by section 198 of the Act:
In WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(‘WKMZ’),[120] the Full Federal Court referred to the possible outcomes of a non-revocation decision: removal, indefinite detention, and the grant to the non-citizen of a visa.[121] Kenny and Mortimer JJ observed that completion of the steps associated with these outcomes may take considerable time:[122]
The period of a person’s loss of liberty may be very lengthy, and have no chronologically fixed endpoint, being dependent on the completion of various administrative and executive steps and inquiries. The person concerned will have no accurate conception of when her or his detention might end.
[120] [2021] FCAFC 55. This decision was made in the context of Ministerial Direction No. 79, but the principles it outlines in relation to how a decision-maker should consider the legal consequences of a non-revocation decision are also relevant to the Direction.
[121] WKMZ at [97].
[122] WKMZ at [132].
While the Tribunal has found that the Applicant engages Australia’s non-refoulement obligations, it cannot speculate about the duration of any detention to which the Applicant may be subjected. However, it finds that all the possible outcomes of a non-revocation decision outlined in [113] inevitably involve the Applicant remaining in ongoing immigration detention while the various administrative processes are completed. Accordingly, the Applicant’s ‘loss of liberty may be very lengthy, and have no chronologically fixed endpoint.’[123]
[123] WKMZ at [132].
The evidence before the Tribunal is that the Applicant has been held in immigration detention for more than three and a half years,[124] and this has had an adverse impact on his mental health. In his statement dated 3 September 2022, the Applicant stated:[125]
I have already spent several years in immigration detention. This has been exceedingly difficult for me, especially since my future remains uncertain. It is also troubling that there is no fixed end date to my time in immigration detention. It has been very deflating for my mental health.
[124] Released from gaol and entered immigration detention on 19 January 2019,.
[125] Exhibit A1, [15].
In her report, Dr Kwok stated that in her opinion, prolonged immigration detention will likely cause the Applicant’s ‘psychological wellbeing [to] suffer considerably.’
The Tribunal finds that the consequence of not exercising the discretion to grant the Applicant a protection visa is the Applicant’s ongoing immigration detention without a chronologically fixed endpoint, which will cause him psychological harm and may also be in breach of Australia’s international obligations and human rights standards. The Tribunal finds that the consequences for his mental health of the Applicant’s ongoing immigration detention is a factor that weighs very heavily against the exercise of the discretion to refuse the protection visa.
Extent of impediments if removed from Australia
The Direction states at paragraph 9.2:
(1)Decision-makers must consider 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.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is aged 32 years, and he is generally in good physical health, but is experiencing depressive symptoms in immigration detention. If the Applicant is returned to China, his separation from his wife and children will cause him considerable emotional hardship and likely to negatively impact his mental health.
Having regard to the factors in paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language and cultural barriers if he were to return to China. He left there when he was aged 16 years, and he speaks fluent Mandarin. While the Applicant has not resided in China as an adult, the Applicant’s familiarity with the language and culture of China is such that he would not experience significant language and cultural barriers.
Relevantly to the factors in paragraph 9.2(1)(c) of the Direction, as a citizen of China, the Applicant would have the same access to any social, medical and economic support as other citizens. The Direction provides that the extent of any impediments to an Applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. The standard and ease of access to these supports may not be of the same high standard and as widely available as those services are to the Applicant in Australia. The Applicant has previously worked as a gyprocker and painter, and he therefore has skills which will allow him to find paid employment. The Applicant’s parents, sister, uncle, and cousin all reside in China and should be able to assist him to obtain employment.
As noted above, the protection finding made for the Applicant means that s 198 of the Act does not require or authorise his removal to China. In this regard, the limited circumstances in which removal is required, as set out in s 197C(3)(c), do not presently exist for the Applicant. Therefore, even if the Applicant were to face impediments on return to China, those impediments are unlikely to arise in the foreseeable future. Accordingly, the Tribunal has given this consideration neutral weight.
Impact on victims
The Direction states in paragraph 9.3:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal of the views of any victims impacted by the Applicant’s offending. The Tribunal has therefore given this consideration neutral weight.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.
Having regard to paragraph 9.4.1(1) and paragraph 9.4.1(2)(b) of the Direction, the evidence before the Tribunal is that the Applicant’s immediate family members reside in Australia, being his wife and two children, all of whom are Australian citizens. Based on the statement and oral evidence of the Applicant’s wife, the Tribunal finds that she and their two children will experience considerable emotional, financial, and practical hardship if the Applicant’s visa application is refused.
In relation to his other ties, the Applicant has resided in Australia for 15 years having arrived here in 2007 as a 16-year-old. In relation to the factors in paragraph 9.4.1(2)(a)(ii) there is evidence that the Applicant has had regular paid employment since he left school and has therefore made a positive contribution to the Australian economy.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected if his visa application were refused. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly his family members in Australia, the length of time the Applicant has resided in Australia, his positive contributions to the economy, the Tribunal finds that this consideration weighs heavily against the exercise of the discretion to refuse to grant the protection visa
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs in favour of the exercise of the discretion to refuse to grant the protection visa. The Applicant’s criminal offending is serious, particularly as it involved the supply of drugs as part of a criminal enterprise. Despite the low risk of him committing future criminal offences, the nature and seriousness of the harm such offending would cause to the community is such that the protection of the Australian community is best served by the refusal of the protection visa.
Primary Consideration 3 weighs strongly against the exercise of the discretion to refuse the protection visa as it is clearly in the best interests of the Applicant’s two children for him to be permitted to remain in Australia.
Primary Consideration 4 weighs in favour of exercising the discretion to refuse to grant the protection visa as the expectations of the Australian community are that Applicant’s serious drug offences should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by the duration of his residency in Australia.
In regard to the relevant Other Considerations, the potential for the Applicant to be held in immigration detention for a very lengthy period of time with no chronologically fixed endpoint weighs heavily against the refusal of the protection visa. Further, the Applicant’s links to the Australian community, particularly his wife and two children, weigh heavily against exercising the discretion to refuse the visa.
For the reasons stated above, the Tribunal is satisfied that the discretion to refuse the Applicant the protection visa should not be exercised.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 9 May 2022 to refuse the Applicant a Protection (subclass 866) visa on character grounds is set aside; and it is remitted to the Respondent for reconsideration with a direction not to refuse the Applicant’s visa under subsection 501(1) of the Migration Act 1958 (Cth).
I certify that the preceding 137 (one hundred and thirty - seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
.................................[SGD].......................................
Associate
Dated: 23 November 2022
Date(s) of hearing: 6 & 7 October 2022 Counsel for the Applicant: Dr J Donnelly Counsel for the Respondent: Mr G Johnson Solicitors for the Respondent: Sparke Helmore
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
(1)For the purposes of section 198, it is irrelevant whether Australia has non‑refoulement obligations in respect of an unlawful non‑citizen.
(2)An officer’s duty to remove as soon as reasonably practicable an unlawful non‑citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non‑refoulement obligations in respect of the non‑citizen.
(3)Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non‑citizen to a country if:
(a) the non‑citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non‑citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non‑citizen is complete within the meaning of subsection 197D(6);
(iii) the non‑citizen has asked the Minister, in writing, to be removed to the country.
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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Jurisdiction
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