PRHR v Minister for Immigration and Border Protection

Case [2017] AATA 2782


PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782 (22 December 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2017/6059
GENERAL DIVISION  )

Re: PRHR
Applicant

And: Minister for Immigration and Border Protection
Respondent

CORRIGENDUM TO DECISION [2017] AATA 2782

The Tribunal amends its decision of 22 December 2017 by:

  1. at [11] in the second line deleting ‘and’ and inserting ‘an’;
  2. at [13] in the second line inserting ‘call’ after ‘will’;
  3. at [17] in the third line adding ‘y’ to ‘Count’;
  4. at [19] in the eighth line after ‘Constable’ inserting ‘(DLSC)’;
  5. at [42] in the fifth line, delete a zero so that the year reads ‘2012’;
  6. at [48] in the fourth line, delete ‘‘the’ and insert ‘he’;
  7. at [60] in the second line of paragraph (b) of the excerpt insert ‘not’ after ‘would’;
  8. at [61] in the second line of paragraph (b)(ii) of the excerpt insert ‘(including a crime’ before ‘that’;
  9. at [65] in the last line of the paragraph following the first excerpt of text insert ‘it’ after ‘cancel’;
  10. at [69] in the fifth line delete the ellipsis and insert ‘107’;
  11. at [76] in the first sentence insert ‘power’ after ‘”officer”’;
  12. at [77] in the sixth line insert ‘in’ before ‘detention’;
  13. at subheading A.1 which precedes [84] delete ‘PHRH’ and insert ‘PRHR’;
  14.  at [86] in the ninth line add ‘d’ to ‘concede’;
  15. at [86] in the tenth line delete ‘and’ and insert ‘an’;
  16. at [92] in the fourth line delete ‘or’ and insert ‘of’;
  17. at [107] in the second paragraph of the excerpted text at the beginning of the paragraph after the quotation mark and before the quoted text insert ‘(6)’ and then indent the excerpted paragraph so it aligns with that prior to it;
  18. at [117] in the third line of the excerpted text insert an ellipsis after ‘Punishment’ and insert an ellipsis followed by a closing parenthesis after ‘1984’;
  19. at footnote 85 inserting ‘[2017]’ after the name of the case;
  20. at [118] in the sixth line delete ‘doe’ and insert ‘do’;
  21. at footnote 87 delete from and including the first bracketed ellipsis to and including the second bracketed ellipsis;
  22. at [125] in the third line delete the ellipsis and insert ‘64’;
  23. at [139] in the second line delete ‘is’ and insert ‘as’;
  24. at [145] in the seventh line italicise ‘Commission’;
  25. at [156] in the fifth line insert ‘as’ after ‘acted’;
  26. at [159] in the first line insert ‘the’ after ‘Given that’;
  27. at [164] in the first line insert…

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AGLC
PRHR v Minister for Immigration and Border Protection [2017] AATA 2782
Case
[2017] AATA 2782
Decision Date

CaseChat Overview and Summary

The applicant, PRHR, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse to grant a protection visa. The core of the dispute concerned the weight to be given to certain considerations in the decision-making process, particularly in light of legislative changes.

The court was required to determine whether the legal consequences of refusing a protection visa were a relevant consideration for the Minister. Additionally, the court considered the consistency of Direction 65 with the law, specifically in relation to section 197C of the *Migration Act 1958* (Cth), and whether any inconsistency could be severed.

The Deputy President, S A Forgie, reasoned that section 197C of the *Migration Act* is relevant when non-refoulement obligations arise, clarifying that the duty to remove an unlawful non-citizen under section 198 is irrespective of whether Australia's non-refoulement obligations have been assessed. The court examined the primary considerations outlined in Direction 65, including the protection of the Australian community from criminal conduct. It noted that the nature and seriousness of an applicant's conduct, the risk to the community, the sentence imposed, the frequency of offending, and whether the conduct would be an offence in Australia are all factors to be considered. In PRHR's case, the court found that while the offences committed in Australia were the first of their kind, they were likely preceded by others in Sri Lanka, for which PRHR had served a significant period of imprisonment. The court concluded that PRHR's behaviour, even in the context of politically motivated violence in Sri Lanka, was within his control, and he had made choices that led to violent encounters and harm to others.

The decision affirmed the Minister's refusal to grant the protection visa.

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

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Ratio Decidendi

Legal Principle Established

Section 197C is relevant when non-refoulement obligations arise:“(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.”CONSIDERATIONPrimary considerations Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11. The first primary consideration relating to the protection of the Australian community begins with the general statement:“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”[71][71] Direction No. 65; [11.1(1)] Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;c)…d)…e)The sentence imposed by the courts for a crime or crimes;f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;g)The cumulative effect of repeated offending;h)…i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.” The offences committed on 5 February 2016 in Australia were the first offences of that sort committed by PRHR but they were probably preceded by others that were committed in Sri Lanka. I say “probably” because the status of the charges in Sri Lanka is somewhat obscure. What is clear is that PRHR has spent some 15 months in prison in respect of some or all of five charges and then a further two months in prison for a reason that is not clear. I am satisfied that they arose out of events associated with his support of a political candidate. Even if I accept his evidence to the effect that political campaigns in Sri Lanka lead to violence amongst the various candidates and their supporters, I find that his behaviour was in his control. On the last occasion, for example, when he wielded a sword and cut and was cut, it was PRHR’s choice to put himself in the position where he came to do that. The same is true of the earlier offences which arose out of the political rallies. As he said in relation to events arising from the 2005 elections in Sri Lanka, on each occasion on which he attended a political rally, he was spotted by supporters of opposing politicians and attacked. He speculated that he might have fought back on one or two occasions and, on one, he might have fought back with a metal rod. In relation to the incident with the sword, he has hurt others. His memory is not clear but it is clear from his evidence that he has chosen to put himself in the situation in which violence occurs.