PJSH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 273

PJSH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 273 (19 February 2021)
Division:GENERAL DIVISION
File Number:2020/8033
Re:PJSH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:19 February 2021
Place:Melbourne

The Tribunal affirms the decision under review.
........................[sgd]................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – applicant is stateless – consequence of non-revocation – whether removal would not be reasonably practicable – indefinite detention – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
CWGF v Minister for Home Affairs [2019] FCA 1802
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
19 February 2021

This is an application for review of a decision of a delegate of the Respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 5 April 2019, the applicant’s Class XA Subclass 866 Protection visa (the protection visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 3 May 2019, the applicant made representations seeking revocation of the cancellation decision. Further representations were made on 25 August 2020.
On 26 November 2020, a delegate of the respondent decided not to revoke the cancellation decision under s 501CA(4) of the Act.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: PJSH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 273
Case: [2021] AATA 273
Decision Date: 19 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, PJSH, against the mandatory cancellation of his visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant possessed a substantial criminal record, leading to the cancellation of his visa. The central dispute revolved around whether the Minister's discretion to revoke this mandatory cancellation should have been exercised in the applicant's favour. The case was heard by Deputy Britten-Jones P.

The legal issues before the court were whether the discretion to revoke the mandatory visa cancellation should be exercised, considering the primary considerations outlined in Direction No. 79, including the protection of the Australian community and the expectations of the Australian community. The court was also required to consider other relevant factors, such as the applicant's status as a stateless refugee from Myanmar, his non-refoulement obligations, and the practical consequences of his removal from Australia, including indefinite detention.

Deputy Britten-Jones P reasoned that the applicant's serious criminal offending, which had devastating consequences for the victim, weighed heavily against revoking the cancellation. The court found a real risk of reoffending due to the applicant's lack of insight and failure to demonstrate rehabilitation, particularly in the absence of a completed rehabilitative course addressing his sexual misconduct. While acknowledging the applicant's refugee status, statelessness, and Australia's non-refoulement obligations, the court determined that these considerations did not outweigh the paramount need to protect the Australian community. The court affirmed that the expectations of the Australian community, as interpreted in previous case law, were inextricably linked to the protection of the community and supported the decision not to revoke the cancellation.

The court concluded that the applicant had not been law-abiding and had committed a serious crime, leading to the expectation within the Australian community that he should not hold a visa. Consequently, the court found that the serious nature of the offending and the risk of reoffending strongly favoured non-revocation of the cancellation decision. The decision of the Minister to cancel the visa was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I conclude that there is a real risk that the applicant will re-offend because of his lack of insight and his failure to satisfy me of his rehabilitation. I accept that he has expressed remorse and that this was an isolated event. However, the crime of rape is so serious and his stated good intentions have not been tested in the community, such that, in the absence of satisfactory completion of a rehabilitative course addressing his sexual misconduct, I consider that there is an unacceptable risk to the Australian community of him re-offending. Conclusion as to protection of the Australian community The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[6] The applicant has committed a most serious crime of a sexual and violent nature against an unsuspecting woman who was merely doing her job and who was entitled to feel safe doing so. He caused the victim physical harm and extreme psychological harm. The protection of the Australian community is a factor that weighs most heavily in favour of not revoking the cancellation decision.[6] Direction 79 at 13.1(1). Best interests of minor children – 13.2 of Direction 79 The applicant has no children or any other relatives in Australia. Consequently, this is a factor that neither weighs for nor against revocation of the cancellation decision. Expectations of the Australian community – 13.3 of Direction 79 In YNQY v Minister for Immigration and Border Protection,[7] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court of Australia (the Full Court) in FYBRv Minister for Home Affairs.[8][7] [2017] FCA 1466.[8] [2019] FCAFC 185. In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that: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. The applicant has not been law abiding and has engaged in a most serious crime with devastating consequences on the victim. The nature of the offending is so serious that the Australian community would expect that the applicant should not hold a visa. Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision. Other considerations In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[9][9] SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 [5].

Ratio Decidendi

Legal Principle Established

The applicant has not been law abiding and has engaged in a most serious crime with devastating consequences on the victim. The nature of the offending is so serious that the Australian community would expect that the applicant should not hold a visa. Taking into account the serious nature of the offending and risk of reoffending, I find that the expectations of the Australian community weigh strongly in favour of non-revocation of the cancellation decision. Other considerations In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[9][9] SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 [5]. I take into account that the applicant was granted a protection visa in 2013 and was found to be a refugee who engaged Australia’s protection obligations because of his profile as a Rohingyan Muslim seeking protection from persecution in his country of origin, Myanmar. I note that the applicant is stateless because Myanmar does not recognise his statehood or his being a citizen of that state. The applicant left that country following both personal and family persecution by the Myanmarese military. His parents, brothers and his wife remain as refugees in Bangladesh and the applicant has been sending money to them. I take into account that if his visa remains revoked then he will not be able to support them as before. In addressing these considerations I must properly understand and consider the legal consequences of the decision being made (in particular detention and removal). What the legal consequences are is a question of fact. International non-refoulement obligations 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.[10] [10] Direction 79 at 14.1(1). The question before the Tribunal in considering any non-refoulement claims is a state of satisfaction as to whether there was “another reason” why the original decision should be revoked.[11] In this case, the respondent accepts that the applicant is a stateless Rohingyan refugee whose country of origin is Myanmar; and that he is a person to whom Australia owes non-refoulement obligations. This is supported by the findings in the International Treaties Obligation Assessment dated 8 September 2020, which I accept. The Department of Home Affairs wrote to the applicant advising that these findings would be taken into account when considering the applicant’s revocation request. The Department also advised that:‘…you will not be asked to leave Australia while you continue to engage non-refoulement obligations. The Department will not make arrangements to remove you from Australia while you continue to engage non-refoulement obligations.’Consequences of a decision to not revoke[11] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].