PJSH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

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 does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[2]
[2] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Further, the applicant’s situation is affected by s 197C and s 198(2B) of the Act. Those provisions state:
197C Australia’s non‑refoulement obligations irrelevant 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.
…
198 Removal from Australia of unlawful non‑citizens
(2B)    An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:
(a)       a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and
(b)       since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and
(c)       in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:
(i)        the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or
(ii)       the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.
Note:    The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act. Therefore, the applicant cannot rely on s 501CA(4)(b)(i) of the Act in order to have the mandatory visa cancellation revoked.
The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]
[3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[4]
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), 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) at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia; bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
(b)The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
(c)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
(d)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(e)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
(a)Primary considerations:
(i)Protection of the Australian community
(ii)The best interests of minor children in Australia
(iii)Expectations of the Australian community
(b)Other considerations include (but are not limited to):
(i)International non-refoulement obligations
(ii)Strength, nature and duration of ties
(iii)Impact on Australian business interests
(iv)Impact on victims
(v)Extent of impediments if removed
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
The offence of rape is a most serious crime. On 20 April 2018 the applicant was convicted, having pleaded guilty, of two counts of rape and one count of sexual assault. The offending took place on 16 February 2017. The victim was a young woman working in a shop. She was unknown to the applicant. The sentencing Judge in the District Court of Queensland described the offending and its consequences on the victim as follows:
The conduct which constitutes the offence is extremely serious and very distressing conduct to the woman concerned. The complainant, <redacted>, was a <redacted> woman working in an <redacted> in the <redacted> and she did not know you. At 4 pm on a work day, you came in looking at <redacted>, and <redacted> asked you if you needed assistance. You asked about tablets to make women happy, and you stared at her breasts. You asked <redacted> to show you a DVD in an area of the store that was not monitored by CCTV. I accept you may not have known this, but it was an area that was not able to be viewed by the public from outside.
While she was getting the DVD, you pushed your groin into her and she felt an erection. Although she moved out of the DVD area to an area seen by the CCTV, you asked her to go back with more questions about DVDs. As she reached for a DVD, you grabbed her by the neck with one hand, pinned her to the wall, and put your other forearm against her chest. Her head hit the wall, and she felt dizzy. Holding her by the throat, you used your legs to force her legs apart, and you tried to insert two fingers in her vagina. You actually inserted one finger, which constituted the offence of rape. You removed your finger and sniffed it, then kissed the top of her breasts, which is count 2, sexual assault. You then undid your pants, pushed your penis against her vagina, and penetrated her vagina with the tip of your penis, which is count 3, rape.
After this brief penetration, a customer entered the store, and you released the complainant. She went to the counter, and you followed and left eventually after repeatedly being told to leave. <redacted> phoned her employer and her personal partner and called police, and she was taken to hospital and examined for signs of sexual assault. Although she had no visible injuries, an examination compared against a test taken from you later showed that your DNA was in a low vaginal swab taken from her body. There was no spermatozoa found, so I can infer that there was no ejaculation. But you did not use a condom, and, of course, there was a risk of passing on disease and at least some risk of pregnancy.
…
Taking into account all of the decisions that I have been taken to and taking into account the various aggravating and mitigating factors that have been outlined, I wish to say the following. <redacted> was a happy and productive young woman, enjoying her life working for an employer who ran an <redacted>. She was entitled to feel safe working in that shop at 4 pm on a week – on a working day when you came into the shop. You took advantage of the fact that she was alone and you manoeuvred her into a part of the shop where you were able to sexually attack her without being seen from outside. Although you only used the degree of violence necessary to force her cooperation or compliance, you raped her twice, once with your finger and once with your penis, as well as sexually assaulting her by kissing her breast. You have left her with a lifetime of emotional and psychiatric pain. I understand the difficulties that you have struggled with in your life, but you have passed that pain onto an innocent person who now has to carry the awful effects of being raped for the rest of her life. Rape is an appalling and despicable offence, particularly in these circumstances. A young woman such as <redacted>, working in a shop, was entitled to feel safe and should not have to fear a customer coming in and sexually assaulting her, as happened when you walked in that day.
It was a violent and sexual crime against a vulnerable working woman, which is viewed very seriously. The custodial sentence of seven and half years reflects the seriousness of the offending. The applicant has no previous convictions, but I give that limited weight given the serious nature of this crime.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b)the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are, as well as the likelihood of the person engaging in that conduct in the future.
[5] (2014) 225 FCR 424.
If the applicant were to engage in further similar offending, then the nature of the harm would be extremely serious. The consequence of further offending would be another victim, as the sentencing Judge said, ‘with a lifetime of emotional and psychiatric pain’.
The applicant has been in prison for almost three years but he has not completed a course addressing his violent and sexual conduct. I accept that this is not entirely the fault of the applicant because he was enrolled to commence a suitable course but that was postponed due to the COVID-19 pandemic. The applicant said that he was accepted into the course and that he remains willing to complete it. The applicant has expressed appropriate remorse. There is a report from Consultant Psychologist Professor James Freeman dated 22 January 2021, which says the applicant has a low risk of re-offending which could be further addressed by participation in a structured intervention program. It is to the applicant’s credit that he intends completing such a program, but I am unable to conclude that he has undertaken appropriate rehabilitative measures so as to address the underlying issues that led to his offending. I note that Professor Freeman accepted that ‘the applicant’s limited capacity to speak English made it difficult to identify (with a high level of psychological certainty) the origins of the offences.’ I also note that Professor Freeman was not made available for cross-examination despite a request from the respondent. In these circumstances I give less weight to his opinion of a low risk of recidivism.
Further, there were indications from the applicant himself that he did not have appropriate insight into his offending. In cross-examination, he denied the finding of the sentencing Judge that he had asked the victim ‘about tablets to make women happy’. Further, whilst accepting that he committed the crimes, he said he did so ‘unintentionally’ and ‘unknowingly’ and that ‘my brain was not functioning’. He said he prays every day and asks for understanding as to how he could stay away from committing further crime. He promises to himself every day that he will never commit such crimes again. I accept that these are genuine expressions of good intentions, but I am not satisfied that he has a genuine insight into why he offended and I am not satisfied that he has addressed the underlying causes of his offending through participation in an appropriate course of rehabilitation.
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].
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].
I now have regard to the legal consequences of a decision to not revoke the cancellation decision, bearing in mind that the applicant is a person in respect of whom non-refoulement obligations are owed.
The respondent contended that the legal consequences would be that the applicant would be barred under s 48A of the Act from making another application for a protection visa. In light of this and given his statelessness, the applicant will be detained unless or until such time as it is reasonably practicable to remove him; that is until:
(a)the Minister exercises his personal discretion to grant the applicant a visa under s 195A or s 417 of the Act;
(b)the Minister exercises his personal discretion under s 48B to remove the statutory bar under s 48A of the Act; or
(c)the applicant is successfully resettled to third country.
The respondent also contends that there is a possibility that the applicant could be returned to Myanmar in the future but concedes that it is presently not reasonably practicable for him to be removed. Nevertheless, as a result of s 197C and s 198(2B) of the Act, the legal consequence of refusing to revoke the cancellation of the applicant’s visa is that the applicant is required to be removed from Australia as soon as reasonably practicable.[12] In the meantime, as Gleeson J found in CWGF v Minister for Home Affairs [2019] FCA 1802:
…the applicant will be subject to “indefinite detention” in the sense that detention would be limited only by the time taken for the Minister to consider “alternative management options” or until removal is “reasonably practicable”…
[12] see CWGF v Minister for Home Affairs [2019] FCA 1802 at [10] and the cases cited therein.
As to whether the applicant could be resettled in a third country, the respondent said that no country had been identified.
In Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, the Full Court considered the exercise of the Minister’s power in s 501(1) and s 501(2) of the Act. What the Full Court said at [61] is apposite to this case:
[61] All these factors have a bearing upon the issue whether Australia’s non-refoulement obligations and the prospect of indefinite detention are mandatory considerations at the time when consideration is being given to the exercise of the powers in s 501(1) or (2). Given the inherent complexity of the matter, it would be unwise to be overly prescriptive in summarising the relevant legal principles, however, the Full Court decisions referred to above support the following non-exhaustive summary of some of the relevant principles:
(a) in determining whether or not to exercise the powers in s 501(1) or (2) of the Migration Act, the decision-maker must take into account the legal consequences of the decision made under either of those provisions;
(b) those legal consequences may include the prospect of the affected person being held in indefinite detention because of the operation of ss 189, 196 and 198 of the Migration Act;
(c) the test is whether, on the basis of all the material which is before the decision-maker at the time of considering whether or not to exercise the powers in s 501(1) or (2), there is at least a real possibility that the person’s removal from Australia would not be reasonably practicable with the consequence that the person faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Migration Act; (emphasis added)
(d) the factual circumstances which can give rise to the prospect of indefinite detention can vary considerably — for example, that real possibility may exist because Australia owes the person protection obligations and there is no other country to which the person can be removed consistently with Australia’s non-refoulement obligations. Or there may be some other reason which is personal to the individual concerned as to why that real possibility exists, such as the state of the person’s health, which affects the duty under s 198(6) to remove the person as soon as reasonably practicable;
…
(f) this position is generally unaffected by the presence in the Migration Act of various provisions which confer personal powers on the Minister to “lift the bar” (such as s 48B) or to grant a visa to a detainee which would have the effect of changing the detainee’s status from being an unlawful non-citizen (such as s 195A). There is no legal duty on the Minister to consider whether to exercise such a personal power, whether he or she is requested to do so by any person or in any other circumstances (see, for example, ss 48B(6) and 195A(4)). Hence there is no assurance that the Minister will even consider whether or not to exercise such a personal power, with the consequence that there is no assurance that any consideration will subsequently be given in a relevant case to Australia’s non-refoulement obligations or the prospect of indefinite detention. This difficulty may be overcome in a case where, at the time consideration is being given to the exercise of the powers under s 501(1) or (2), there is some material which indicates the real possibility of the Minister exercising his or her personal powers in favour of the affected person; and
(g) the position is also different where, in a case such as NBMZ or NBNB, the person whose visa application has been refused or whose visa has been cancelled under s 501(1) or (2) respectively is prevented by the Migration Act from applying in Australia for a protection visa. In such a case, the Minister’s obligation to consider the legal consequences of a decision in the circumstances under either of those provisions will include consideration of Australia’s non-refoulement obligations and the prospect of indefinite detention, where those matters are relevant to the person’s particular circumstances…
In the absence of any evidence as to the prospects of resettlement, I am not satisfied on the material before me that resettlement to a third country is, or will become, reasonably practicable. There is in these circumstances at least the real possibility that the applicant’s removal would not be reasonably practicable.
Given my finding regarding resettlement in a third country, and that it is not currently reasonably practicable to return him to Myanmar, the applicant is left in the position of being detained until the Minister exercises his personal discretion to either grant a visa or lift the bar under s 48A of the Act. These “alternative management options” require the Minister to exercise a discretion which would result in the applicant obtaining a visa.
I note that a delegate of the Minister refused to exercise his discretion to revoke the cancellation decision and gave reasons dated 26 November 2020. Those reasons included findings that there is an ongoing risk that the applicant will reoffend, and that the Australian community should not have to accept any risk of further harm.
The delegate of the Minister further concluded that the Australian community would expect that the applicant’s visa would remain cancelled. I also note that the respondent gave no evidence that the Minister was considering exercising a discretion and there is no material before me that suggests he would exercise that discretion in favour of the applicant. In the absence of evidence with respect to the Minister, I consider that the delegate’s findings would be indicative of whether the Minister will exercise a discretion.
In light of my findings with respect to the Minister exercising his discretion in favour of the applicant, and with respect to resettlement in a third country or removal to Myanmar, I am not satisfied that it is, or will become, reasonably practicable to remove the applicant from detention. I find there is at least a real possibility that the applicant’s removal would not be reasonably practicable, with the consequence that the applicant faces the prospect of indefinite detention by operation of ss 189, 196 and 198 of the Act. Indefinite detention is likely to have an adverse impact on the applicant’s mental and physical health, which would likely further deteriorate if he is held in detention for a long time.
Given that the applicant faces indefinite detention and is owed non-refoulement obligations, these are factors that weigh very heavily in favour of revocation of the cancellation decision.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
(a)how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
(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.
The applicant arrived in Australia as a refugee in June 2012 aged 25 years. He had experienced persecution in Myanmar and fled to Bangladesh in June 2010. He is married to a woman who remains in Bangladesh. He was in Australia for nearly five years before he offended in February 2017. When he arrived, he undertook 12 months of English lessons at TAFE. He contributed positively to the Australian community by working at a car wash café from 2015. His employer has provided a very positive reference. He has been in contact with his wife and family in Bangladesh and has been sending them money. He has some links with members of the Rohingyan community in Australia and a particular friend who could assist him financially and socially to reintegrate into the Australian community, were he released. He has behaved whilst in prison and has undertaken courses with good references from the prison officers.
The applicant has no family in Australia and I do not consider that non-revocation would have any significant impact on those with whom he has ties in Australia. The evidence of these ties was limited. I note that Professor Freeman stated in his report that “he has no close friends or affiliation with the Myanmarese/Rohingyan group in Brisbane.” Professor Freeman referred later in his report that he has a “small group of close friends.”
I do not consider that the applicant has established strong ties with members of the Australian community outside of his employer and his one particular friend. His period of employment was not substantial being approximately two years before he offended and a further period up until he was incarcerated in April 2018. Nevertheless, I consider that through his studies and his work the applicant has made a positive contribution to the Australian community and therefore I give this factor more weight. I conclude that this is a factor that weighs in favour of revoking the cancellation decision.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Impact on victims
There was no evidence in relation to the impact on the victim of a decision to not revoke. Consequently, this consideration neither weighs for nor against revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to his home country of Myanmar in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The applicant is 34 years old and in good physical health, but he does have an ongoing adjustment disorder with mixed anxiety and depressed mood. He has no family or social networks in Myanmar and, as a Rohingya, he would be unable to access social, medical and other essential services if he were returned to Myanmar. He would also face further persecution and harm because Myanmar is unsafe for Rohingya people. The Department of Foreign Affairs country information (as at April 2019) indicates that the Rohingya population in Myanmar face high, endemic and severe official and societal discrimination on the basis of ethnicity. The respondent acknowledges that the applicant would face impediments if returned to Myanmar. The risk of harm is likely to have been exacerbated given the current military coup in Myanmar.
I conclude if the applicant were returned to Myanmar that the extent of impediments for him would be extremely high, including a lack of any support and a risk of death. This factor weighs heavily in favour of revoking the cancellation decision.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations so as to determine whether there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision. The other considerations of non-refoulement obligations, strength, nature and duration of ties and the extent of impediments if removed weigh in favour of revocation.
Further, there is the very real prospect that the applicant will be indefinitely detained if the cancellation decision is not revoked. This is a very serious and significant consequence, which weighs heavily in favour of revocation.
I do not consider that the applicant has developed an appropriate level of insight into the seriousness of his offending because he has not participated in the necessary rehabilitative courses. There is a real and substantial risk that the applicant will reoffend. I note that the Australian community may be more tolerant of his criminal activity because he has lived in Australia for eight years, but the nature of the offending is such that the risk of further offending is unacceptable to the Australian community who, in these circumstances, would expect the applicant to forfeit the privilege of staying in Australia.
There are countervailing considerations, but they do not outweigh the primary considerations of the protection and expectations of the Australian community.
The most significant, in terms of weight, of the other considerations, are the likely prospect of indefinite detention, the international non-refoulement obligations and the extent of impediments if removed. These considerations favour revocation of the cancellation decision. If not revoked, the applicant will face the very real prospect of spending a significant amount of time in detention which will cause his mental and physical health to deteriorate. Whilst it seems unlikely that he would be returned to Myanmar, if he were, he would face most significant challenges including persecution and even death.
In terms of weighing up the considerations both for and against revocation, I am minded to place more weight on the primary considerations of the protection and expectations of the Australian community than on the other countervailing considerations. The impact of indefinite detention or the dangers and difficulties that the applicant would meet upon his return to Myanmar are real and serious, but they do not outweigh the very real risk of harm to the Australian community if the applicant is not removed. The applicant has committed very serious crimes and has not shown that he is rehabilitated. By cancelling the applicant’s visa, the Government is exercising its commitment to protect the Australian community from harm. Given the seriousness of the offending by the applicant and the very real risk that he will reoffend, the primary considerations of protection and expectations of the Australian community outweigh any claims with respect to the other considerations including the prospect of indefinite detention, non-refoulement and the extent of impediments if removed. The countervailing factors referred to above do not outweigh the factors in favour of non-revocation. In this regard, I note that primary considerations should generally be given greater weight than the other considerations.[13] I see no reason not to apply that approach in this case.
[13] Direction 79 at 8(4).

This conclusion is reached by applying the principles in paragraph 6.3 of Direction No. 79 to the specific circumstances of the applicant who has committed serious crimes of a sexual and violent nature:
(a)Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is 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. By committing rape and sexual assault, the applicant has not been law-abiding, he has shown disregard for Australia’s law enforcement network and he has threatened and caused harm to a woman.[14]
(b)The Australian community expects that the Australian government should cancel the visas of non-citizens who commit such serious crimes in Australia.[15]
(c)The applicant, as a non-citizen who has committed a serious crime of a sexual and violent nature against women, should generally expect to forfeit the privilege of staying in Australia.[16]
(d)In this circumstance, the criminal offending, and the harm that would be caused if it were repeated, is so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations are insufficient to justify not cancelling the visa.[17]
[14] Ibid at 6.3(1).
[15] Ibid at 6.3(2).
[16] Ibid at 6.3(3).
[17] Ibid at 6.3(4).
It follows from the application of these guiding principles that I am not satisfied that there is another reason why the cancellation decision should be revoked.
Decision of the Tribunal
The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

.....................[sgd]...................................................
Associate
Dated: 19 February 2021

Dates of hearing: 10 & 11 February 2021

Advocate for the Applicant: Mr Ehsan Azadi

Migration Agent for the Applicant: ARC Migration

Advocate for the Respondent: Ms Isla Tobin

Solicitors for the Respondent: Clayton Utz

[2021] AATA 273

19 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice

Dates of hearing:	10 & 11 February 2021
Advocate for the Applicant:	Mr Ehsan Azadi
Migration Agent for the Applicant:	ARC Migration
Advocate for the Respondent:	Ms Isla Tobin
Solicitors for the Respondent:	Clayton Utz