PYCS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4405
•25 November 2021
PYCS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4405 (25 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6459
Re:PYCS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member J Rau SC
Date:25 November 2021
Place:Adelaide
The decision under review is affirmed.
...........................[Sgnd].............................
Senior Member J Rau SCCATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501CA(4) - where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – domestic violence – international non-refoulement obligations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIAL
Department of Foreign Affairs and Trade Country Information Report Afghanistan, 27 June 2019
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 J Rau SC
25 November 2021
INTRODUCTION
On 22 December 2020, a delegate of the Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) made a decision (the Original Decision) under section 501(3A) of the Migration Act 1958 (Cth) (the Act) to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the Visa).
The Applicant sought the revocation of the original decision.
On 7 September 2021, a delegate of the Minister made a decision pursuant to section 501CA(4) not to revoke the original decision (the Decision).
On 10 September 2021, the Applicant lodged an application with this Tribunal, seeking a review of the Decision, pursuant to section 500(1)(ba) of the Act.
There is no dispute that the Applicant does not pass the “character test” as set out in section 501(6) due to him having a “substantial criminal record” as defined in section 501(7). Pursuant to section 501(3A), this results in the mandatory cancellation of the Visa.
The question before the Tribunal is whether there is “another reason” why the Visa cancellation should be revoked pursuant to section 501CA(4).
In determining this question, the Tribunal “must comply with a direction”[1] given by the Minister under section 499. The relevant Direction for these purposes is Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[2]
[1] Section 499(2A), Migration Act.
[2] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
The hearing was held on 17 & 18 November 2021. Dev Bhutani of Maurice Byers Chambers appeared on behalf of the Applicant, and Tim Reilly of Seven Windeyer Chambers on behalf of the Respondent, both by video-link via Microsoft Teams. The Applicant appeared by video-link via Microsoft Teams from Christmas Island Immigration Detention Centre.
The Applicant gave evidence through a Farsi interpreter, as did his sister, ZH. The Applicant also called his friend and extended family member, MH, and psychologist Mr Tim Watson- Munro to give oral evidence at the hearing.
The Applicant was a poor historian and appeared to reconstruct past events to present himself in a more positive light. I will provide some examples of this in due course. This raises a question about how much insight he has into the consequences of his offending, what responsibility he accepts for his past actions, and how sincere his expressions of contrition may be. This in turn goes to the most important underlying question in this case – can the Tribunal have any confidence in the Applicant’s declaration that he has now “changed” and that he can be trusted not to return to the use of drugs, in particular, methamphetamine (ice). That said, I accept that the Applicant is genuine in his desire not to resume his drug addiction. His mind has been focused by the current reality of him facing deportation.
FACTUAL BACKGROUND
The Applicant was born in Mashhad, Iran and is currently 29 years of age. He is an Afghan Citizen. His parents, who were from Mazar Sharif, fled Afghanistan to Iran to escape the Soviet invasion of their country. As refugees, the Applicant’s family were poorly treated in Iran. The Applicant was bullied at school. His father died when he was 11 years old. The Applicant was close to his father and was very distressed by this loss.[3]
[3] Exhibit 6, Statement of Applicant, 12 October 2021.
After his father’s death, the family struggled to survive. They experienced homelessness. They were often short of food. The Applicant left school and started working to assist with supporting his family. He was mistreated by his employers. The Applicant was exposed to some tough experiences in his youth.
After some time, the Applicant’s family came to live in an area near Mashhad run by the United Nations, where they were housed and fed and went to classes. They resided here for a couple of years.
In 2008, the Applicant, his mother, his sisters ZH and FH, his nephew, and his niece, came to Australia. The Applicant was 15 years of age at the time.
The Applicant found settlement difficult due to the very different conditions in Australia. His mother had health problems, she suffered from rheumatism, heart problems, and was diagnosed with breast cancer in 2014,[4] passing away in June 2021 as a result of her illness.[5] He attended Blacktown High School, completing years 6-8. He did years 1-5 in Iran. He was bullied at school and got into fights.
[4] Ibid, Statement of ZH, 12 October 2021, p 11.
[5] Ibid, Statement of Applicant, 12 October 2021, p 6.
In 2010, the Applicant’s brother IH, who had remained in Iran when the other family members came to Australia, died.[6] The Applicant was about 18 years old. This was very distressing for the Applicant, who was close to his brother. The Applicant gave evidence that he started using drugs when his brother died in 2014-2015. This is an example of the Applicant being a poor historian and, also attempting to justify his drug use as a coping mechanism to deal with the contemporaneous loss of his brother. This is both inaccurate and self-serving. The Applicant agreed that his statements of 12 October 2021 and 12 November 2021 were accurate. These state that his brother died in 2010 and that he started drug use in 2012.[7]
[6] Ibid, Statement of ZH, 12 October 2021.
[7] Ibid, pp 3-9 & Exhibit 7, pp 2-3.
Also, in 2010, the Applicant left school and got work as a tiler with the family of a friend, MH. He enjoyed the tiling work.
On 3 March 2010, police records report an incident in which the Applicant is alleged to have produced a pocketknife in an argument in Liverpool, Sydney.[8] This allegation was not tested.
[8] Exhibit 8, p 245.
On 6 September 2010, police records indicate that the Applicant was again involved in fighting. On this occasion he was searched by police and found to be in possession of a small pocketknife 3 cm long and a sharp 10cm kitchen knife in his right pants leg pocket. He was cautioned and issued with an infringement notice for custody of a knife.[9]
[9] Ibid, p 244.
On 13 September 2011, police records contain details of in incident in which the Applicant was stabbed in the abdomen by an associate.[10] He suffered quite serious injuries.
[10] Ibid, pp 238-239.
Police records of 6 June 2012 indicate that police stopped and searched a car in which the Applicant was traveling and recovered a 20 cm knife wedged in the back seat. Warnings were issued.[11]
[11] Ibid, p 236.
Police records of 2 February 2013, police report searching the Applicant and him producing a 15 cm knife with a 5 cm blade from his back pocket.[12]
[12] Ibid, p 228.
In about 2012, the Applicant reports having started gambling and using drugs. Initially, he was using cannabis and alcohol, but by 2013 he had started using ice. It was at this point that the Applicant started to get into more serious trouble. In his evidence the Applicant says that he was not actually addicted to ice until 2016. His behaviour, especially from 2014 onwards, suggests otherwise. This is another example of the Applicant putting a self-serving gloss on his past conduct. Between 2010 and 2020, the Applicant agreed that he had been in jail four times. He also agreed that 2017 was the only full year during this period that he was not in jail. The Applicant’s sister gave evidence that he was associating with a bad group of people, an observation supported by the evidence of MH.
The Applicant associates his criminal behaviour with the use of ice. The evidence supports this assessment to a significant degree. ZH’s evidence was that she associated his use of ice with him carrying a knife and being violent. She did not feel that she, or her young son, would be safe around the Applicant if he continued to use ice. Her preparedness to assist and support him is clearly predicated on him being drug free.
At about this same time, the Applicant had a brief relationship with a woman (Ms J). She fell pregnant to him, but then left before the child was born. She severed all contact with the Applicant for about four years. She sent him a photo of his son, Child A. She asked him for money. The Applicant did send some money, but he has never met Child A who is now nine or ten years of age.
On 7 March 2013, the Applicant was convicted in the Local Court of New South Wales of breaking and entering. He was sentenced to seven months imprisonment, with a non-parole period of four months. On appeal, the District Court of New South Wales varied his sentence to six months and one week imprisonment with a non-parole period of three months. This was however, wholly suspended, and the Applicant was placed on a good behaviour bond.
On 14 March 2013, the Applicant was convicted for the offense of being in custody of a knife in a public place. This is one of many offences relating to the Applicant carrying or being involved in the use of knives. He has twice been the victim of a knife attack.
On 29 May 2014, the Applicant was back in court having breached the conditions of his suspended sentence. He was ordered to serve six months and one-week imprisonment.
In October 2013, police reports suggest a sexual relationship between the Applicant and a female “child”. No details are provided, not even the alleged victim’s age, and there was no prosecution. I give this report no weight.[13]
[13] Ibid, pp 220-223.
On 23 January 2014, there is a police report of a complaint of an assault involving the brandishing of a kitchen knife in which it seems that the Applicant was assaulting his nephew, the child of his now deceased brother IH, (Applicant’s first nephew – AN1). Nothing came of this. I give this no weight other than to note the mention of a knife.[14]
[14] Ibid, pp 218-219.
On 12 March 2014, police records note a complaint by the Applicant’s mother. She was at home with the Applicant. The report continues:
“The victim, …… is the mother of the accused, [Applicant], and reside at the victim’s daughter’s unit at …… On Monday the 10th March 2014 the victim and the accused were at home at the unit. About 3pm while the victim was standing in the lounge room, the accused approached her and said “give me three hundred dollars” the victim said “……”. At this time the accused grabbed hold of the victim by the throat with one hand and choked her, whilst grabbing her right hand and twisting it hard, this caused the victim to feel pain to both her throat and hand. The fifty dollars that the victim was holding fell to the ground… The accused walked into the kitchen and picked up a knife and walked to the bedroom of the victim. The accused held out the knife to the victim and said “hit me with this and kill me, then I will kill you”. The victim grabbed the knife handle and threw it to the ground. The victim handed the accused a further one hundred dollars, the accused took the money and left the unit. The accused returned a short time later and went inside his bedroom. The following day on Tuesday the 11th March 2014 bth the victim and the accused were home at the Woodville Road unit. About 2:30pm the accused approached the victim and said “give me money for cigarettes”, the victim feared for her safety and left the unit, walking to a nearby park to call her daughter. The victim spoke with her daughter and returned home several hours later. The victim attended Parramatta Police station the following day on Wednesday the 12th March 2014 to report the incident with the assistance of her daughter. Police obtained a statement from the victim by way of a Persian speaking interpreter service, and the victim’s daughter, …… who also provided Police with a key and gave permission to Police to gain access to her unit… The accused is now charged with the matter before the court …… Yellow DV card offered, declined, refused to sign. At the conclusion of obtaining statements from the informant and victim, both stated that they would not be attending court and that they did not want the accused to [be] arrested and charged. Police explained in detail that Police would be taking action in this matter regardless… That the accused will continue to assault the victim and demand money from her. FEARS HELD BY POLICE: That without the protection of an AVO and relevant bail conditions the accused will continue to assault, harass and demand money from the victim. Police fear the accused will return to the location if granted bail.”[15]
[15] Ibid, p 215.
In cross-examination, the Applicant admitted to this conduct. He was not prosecuted for it, as his mother understandably did not wish to proceed against him. She died in 2021.
On 27 July 2014, the Applicant again became involved in a domestic dispute with members of his family with whom he lived. The Applicant became particularly violent towards AN1, pushed him onto a couch then punched him several times of the clenched fist. He then placed his hands around his nephew’s neck in an attempt to choke him. Other family members intervened to prevent this going further. The Applicant then went to the kitchen, picked up a 40 cm knife and made three attempts to stab his nephew. It was only a matter of luck that his nephew was not severely injured in this attack. In the District Court, of New South Wales in the course of an appeal against the sentence, the Court made the following observations.:
“[PYCS] has appealed from the sentences imposed upon him in the Local Court at Parramatta on 12 October 2015. On that occasion he was sentenced for four offences, all of which occurred on 27 July 2014.
The first offence was that of assault occasioning actual bodily harm, domestic violence related. The maximum penalty for that offences in the Local Court is two years, or on indictment in this court, five years in prison.
The second offence was the offence of being armed with intent to commit an indictable offence. The maximum penalty for that offence in the Local Court is two years and upon indictment in this court, seven years imprisonment.
The third offence was that of assault. The maximum penalty in both the Local Court and this court is two years in prison.
The final offence is that of contravening an apprehended domestic violence order. The maximum penalty for that offence is two years in prison.
As I have said, all of the offences occurred on the 17 July 2014 and effectively involved the same victim, namely the nephew of the appellant.
The facts surrounding the offence can be very briefly stated.
As at 27 July 2014 the appellant, his nephew, and other family members loved together at premises in Merrylands. A domestic dispute arose between the appellant and other members of the house, not initially involving the nephew.
As the dispute developed through the evening, there was a substantial conflict between the appellant and his nephew. It initially involved the appellant pushing his nephew onto a sofa. There was then a scuffle. The appellant then sought to punch the nephew a number of occasions with a closed fist. Next the appellant managed to get his hands around his nephew’s neck (both hands) and was, in effect, trying to choke him.
As a result of intervention of other members of the family, the appellant went to the kitchen where he armed himself with a forty centimetre serrated knife. He then returned to the room where the victim and the other members of the family were and, on three separate occasions, sought to stab his nephew. His intent was serious and on the third occasion the victim was very fortunate to have moved his head at the last minute, thereby avoiding the blade.
The offence of being armed with intent to commit a serious indictable offence, and the related offence of assault in attempting to stab are very serious offences indeed.
These offences occurred in a context of the appellant having prior criminal offences. Somewhat disturbingly one of those prior offences involved having a knife in a public place. There are also other offences involving violence and a break and enter.
There is contained in the pre-sentence report a reaction of the appellant to the involvement of the police: i.e., is that the fight was a fight with his own blood/family. The appellant must realise that the rules in Australia are not the rules of Iran. He is not entitled to take the law into his own hands. He is not entitled to administer discipline, or to commit criminal offences, against members of his own family. That is against the law of this country and he has got to understand that. And he has got to understand that knives are not to be thought of as objects o be used in normal social behaviour. I do not know why he was found in a public place with a knife. There is no place for any person in this country thinking that knives are an appropriate way to defend themselves or to effect discipline in their family.
[PYCS] ought to know what it is to be the victim of a knife attack because he himself is a victim of it. And he is also the victim of a serious physical assault. He has not been treated for the post traumatic stress disorder which he sustained as a result of those attacks.
But I am not persuaded on the balance of probabilities that, whatever the incident was that occurred in that house on 27 July, it was causally connected to the post traumatic stress disorder. That being said, his untreated psychiatric condition is a basis for a finding of special circumstances notwithstanding that he has served a previous period of imprisonment.
In the result the appeal will be allowed.
The totally concurrent sentences of twelve months imprisonment dating from 12 October 2015 are confirmed. I vary the non-parole period from nine months to six months. The non-parole period will therefore expire on 11 April 2016. I fix a balance of six months to commence 12 April and expire 11 October 2016.”[16]
[16] Exhibit 5, pp 45-48.
……
“[PYCS] these are two counts of quite serious assault occasioning actual bodily harm being armed with intent to commit an indictable offence, common assault and breach of an AVO. They are all aggravated by the circumstances which involves the use of a knife to the point where it appears you were on a point of stabbing [Applicant’s mother](?) and later [Applicant’s niece](?) and clearly you were out of control with a serious weapon and threatened the lives of these people for what does not appear to be any apparently rational reason.
Clearly you are a danger to yourself and to others and in my view a full time custodial sentence is unavoidable. The only positive side is that the injuries that amounted to actual bodily harm were in fact relatively minor and nobody was stabbed or killed but that appears to be more by good lick, intervention by the two victims in protection of each other than anything you did. It seems to be appropriate, because these all flow out of the same event, to roll the sentence up into a single set of concurrent terms.
ON ALL COUNTS, 1, 2, 3 AND 5 – COUNT 4 BEING A BREACH OF BAIL WHICH IS NOT AN OFFENCE – YOU ARE CONVICTED.
I give the full discount from the 15 months appropriate to these offences.
YOU ARE SENTENCED TO BE IN PRISON FOR A TERM OF 12 MONTHS CONSISTING OF A NON-PAROLE PERIOD OF NINE MONTHS, A BALANCE OF TERM OF THREE MONTHS. SENTENCE COMMENCING TODAY, 12 OCTOBER 2015. MAKING YOUR EARLIEST RELEASE DATE, 11 JULY 2016.”[17]
[17] Ibid, pp 49-50.
The Applicant was sentenced to 12 months imprisonment with a non-parole period of nine months.
It was after these incidents that the Applicant first saw a psychologist in Liverpool. He was told that he suffered from depression and anxiety because of the trauma that he had suffered during his life.
In the middle of 2017, the Applicant and his mother went to Iran to visit his older sister. His mother arranged for him to be married there to ZM. This had been arranged with ZM’s father. ZM is an Iranian national living as a refugee in Qom, Iran. The plan was that she would come to Australia. During this trip the Applicant was involved in a very serious bus accident. The Applicant managed to get his mother, his sister and her five children out of the bus. One of his nephews was, however, very badly injured. The Applicant sought assistance, but none was forthcoming, and his nephew died in front of him. When the Applicant returned to Australia, his wife, ZM, told him over the phone that she was not going to come to Australia because she was scared and didn’t want to be in this country without her family. The Applicant was upset about this turn of events.
On 30 July 2019, the Applicant was again before the courts, this time charged with knowingly taking part in the supply of a prohibited drug, namely ice. He was sentenced to a term of eighteen months imprisonment with a non-parole period of 13 and a half months dating from 19 July 2018, and to expire on 2 September 2020:
“The offender [PYCS] comes before the Court for sentence on one count of knowingly take part in the supply of a prohibited drug, namely 13.79 grams of methyl amphetamine. That charge is laid pursuant to s 25(1) of the Drugs Misuse and Trafficking Act and carries a maximum penalty of 15 years imprisonment. There is no standard non-parole period. Of course the maximum penalty reflects the range of objective gravity referrable to an offence that might include the supply of a commercial or large commercial quantity of a drug. In the offender’s case we are dealing with an amount which is slightly more than double the indictable quantity and that is far below the commercial quantity stipulated by the schedule to the Act. The offender pleaded guilty at the first available opportunity and is entitled to a 25% discount on the sentence otherwise to be imposed.
The facts referrable to the offence are within a fairly short compass, the police had targeted a known supplier of methyl amphetamine and had lawfully intercepted a number of conversations between that supplier and the offender between 6 and 27 February 2018. Shortly before 10am on 27 February 2018 the offender was heard to converse with that supplier in terms which carry the unmistakable meaning that the offender was in the process of distributing methyl amphetamine to a purchaser and was waiting for the supplier to provide him with the requisite amount of the drug. At 10 o’clock police attended the premises of the supplier for the purposes of conducting a search warrant and saw the offender immediately outside the supplier’s apartment. He was stopped and searched by police whereupon the 13.7 grams of methyl amphetamine were found in his pocket together with a driver’s licence in the name of another person.
The offender is presently 27 years of age, he has a moderate criminal history commencing in 2012 principally for property offences, one contravene AVO and a possess prohibited drug. He has served terms of imprisonment, the longest being one of 12 months with a six months non-parole period. More relevantly for the purposes of this exercise the offender was given the benefit of a suspended sentence in relation to a break enter and steal offence in 2013 but breached the terms of that suspended sentence and was called up in 2014. A condition of the suspended sentence was that the offender obey all reasonable directions relating to his drug rehabilitation. It is apparent from the commission of the instant offence that the offender did not benefit from that period of supervision.
The offender’s subjective circumstances are not atypical of persons coming to this country from the Middle East and experiencing family dislocation and hardship. The offender gave evidence and described a poor family background, the early death of his father and the onset of an illness in his mother. The offender is very close to his mother and has spent a considerable amount of time with her in order to alleviate her illness. He has family support which us evidenced by an affidavit from his sister and he has a positive employment background as evidenced by a letter from a former employer who is apparently prepared to re-engage the offender. All of that bodes well for his prospects of rehabilitation subject to this, that he has yet to demonstrate that he can remain determinedly free of drugs, notwithstanding some minor infringements within the custodial setting. He has in fact gained 20 kilograms in weight since coming into custody and that would suggest that he has had a relatively drug-free life at least whilst in custody. Whether that remains the case upon his release is a matter of conjecture. Ultimately it is within the hands of the offender as to what rehabilitation he undertakes.
I accept the submissions from the offender’s counsel that he comes within the classification of user/dealer, that he has tried to address his drug use and that those efforts are continuing and that he has by way of explanation for his drug abuse a history of trauma and a notional disturbance. The report of Dr Rodriguez dated 28 July 2019 refers to the possibility that the offender has experienced attention deficits due to trauma, that his education has been significantly affected and that his abuse of substances at a very early age and disruption of his education was no doubt a precursor to his drug abuse. Of course as I said that may be an explanation, not a justification for his offending. The Crown’s submission that the drug methyl amphetamine causes significant social harm is of course a cogent one. In my view the offender’s offending can only be reflected in the imposition of a full time custodial sentence.
I propose to deal with the matter as follows, [PYCS] would you please stand. On the offence to which you have pleaded guilty you are convicted. I sentence you to a term of imprisonment of 18 months to date from 19 July 2019, to expire on 18 January 2020. I impose a non-parole period of 13 and a half months to date from 19 July 2018 and to expire on 2 September 2019. You are subject to release on 2 September 2019. Do you understand that [PYCS], we are now 30 July so you will have approximately one more month to spend in prison. The relevant date 19 July 2018 is my reckoning of 12 months and 12 days counting back from today.
The possess prohibited drug charge is withdrawn and dismissed and I make an order that the drug being the subject of the offence is destroyed.”[18]
[18] Ibid, pp 41-44.
On 30 December 2019, police records report a complaint. Police responded to a triple zero call claiming that a male was threatening a female with a 30 cm kitchen knife. The Applicant was at the unit at the time that the police arrived, but no knife was found.[19]
[19] Exhibit 8, p 202.
On 8 February 2020, police records indicate that police stopped a vehicle driven by the Applicant. The vehicle was searched and two knives (one being a prohibited flick-knife) were found in the rear seat. The Applicant denied any knowledge of the knives.[20]
[20] Ibid, p 200.
On 11 December 2020, the Applicant was again before the courts charged with multiple offences including making threats towards the victim with a knife. He was sentenced to twelve months imprisonment with a seven-month non-parole period, dating from 27 June 2020, when he first went into custody.[21]
[21] Exhibit 5, pp 33-40.
The Applicant’s full criminal history is set out in “Annexure B” as noted in the check results report from the Australian Criminal Intelligence Commission.[22]
[22] Ibid, G2, pp 28-32.
The Applicant reports that he has not used amphetamines since he last went to prison in June 2020.
Witness – Tim Watson-Munro, Psychologist
The Applicant obtained a report from consultant psychologist Mr Tim Watson-Munro dated 13 October 2021.
In his report, Mr Watson-Munro says:
“Compounding the situation, [PYCS]’s family is Shia Muslim, which will inevitably lead to considerable danger for him should he be deported to Afghanistan rather than Iran.
[PYCS] has four sisters, one of whom, [ZH], lives in Australia and is a close support to him…. Significantly, by his account, she had been ill for many years, which served as a source of considerable distress for him…
……
[PYCS] reported that he was struggling with his emotional state… He described ongoing issues referable to adjusting to life I Australia, and in addition, to coping with considerable loss within the family unit.
……
…he developed additional symptoms reflective of some aspects of a diagnosis of Post Traumatic Stress Disorder (PTSD), including hypervigilance to danger, an escalation of his depression and ongoing anxiety, coupled to a diminution of his self-esteem… He has now seen a psychiatrist and a psychologist, and in addition, has been prescribed psychotropic medication… particularly in the context of the strong nexus between his fragile mood state in the past…
……
Galvanising his motivation to remain free of criminal activity, is his appreciation of what potentially awaits him, should he be deported.
……
It is clear that he requires continuing treatment both whilst in detention and upon his release to the Australian community should this occur. Given the intensity of his symptoms, he would benefit from accommodation, ongoing medication, couple to Dialectical Behaviour Therapy (DBT), which has been demonstrated to be effective in dealing with Mood and Substance Use Disorders. His treatment team should include a psychiatrist and an appropriately qualified psychologist.
……
….he has three other siblings, including two who are domiciled in Germany and one in Iran. He last saw his 48 year old sister, who lives in Iran, about four years ago. Prior to his current travails, [PYCS] claims that he travelled between Australia and Iran on occasions to visit his sister.
……
[PYCS] stated that upon his arrival in Australia with his mother, sister and four nephews, he found it difficult to adjust to a divergent language and culture.
……
…there is reference to [PYCS] having a son, [Child A], now aged 9 years.
……
This continued with him then escalating to using ice at about the age of 24 years.
……
…[PYCS] would abuse alcohol.
……
He is on psychotropic medication for sleep, although significantly, it does not appear that he has been prescribed medication for his mood referable to severe depression and anxiety.
……
It would appear that although his impulse control has improved, he has nonetheless had some difficulties in detention, in the context of his claim that he is picked on by other inmates with him on one occasion being involved in a fight.
……
He fears persecution and possibly being killed by the Taliban. These anxieties have been compounded by his faith as a Shia Muslim, with a recognisably Shia name. The Taliban views Shia Muslim’s as infidels.
……
Because of their Afghani heritage, they were precluded from normal rights I Iran and shut out from bettering themselves in terms of education and employment.
……
…stating “I know I have a drug problem, I want to fix it… I need support”.
……
[PYCS] recognises that he needs to remain drug free and to avoid peer groups who are involved with drug use. He stated that he is now on medication, which has stabilised his mood to an extent. In addition, he talks through his problems with a “cellie”…
……
…ongoing symptoms that he continues to suffer a Depressive Disorder (severe & recurring)…
……
…date 12 October 2015… prison sentence of 12 months, with a non-parole period of 9 months.
…dated 9 February 2016… District Court Appeal…12 October 2015…
…dated 30 July 2019…
……
…with the caveat that [PYCS] has yet to demonstrate that he can remain free of drugs.
…“that he has a relatively drug-free life at least whilst in custody”.
The report of Dr Rodriguez… “has experienced attention deficits due to trauma, that his education has been significantly affected and that his abuse of substances at a very early age and disruption of his education was no doubt a precursor to his drug abuse”. I respectfully concur with that opinion.
Arising from his offending, [PYCS] received a custodial sentence involving an 18 month term of imprisonment, with a non-parole period of 13 ½ months to expire on 2 September 2019.
…dated 11 December 2020… His Honour notes that they are serious offences involving weapons and threats to other people and attendant to this, opines there needs to be “a strong element of general deterrence to deter other people from using weapons”.
Arising from his offending, [PYCS] received a term of imprisonment.
……
He is suffering a range of psychological conditions, including features of Post Traumatic Stress Disorder, a severe and recurring Depressive Disorder, a Generalised Anxiety Disorder and ongoing symptoms of an Adjustment Disorder. As an overarching consideration, he has also suffered a Substance Use Disorder, although this is now in Partial Remission in the context of him detoxifying whilst in custody.
[PYCS] is also experiencing ongoing grief referable to the death of his mother in June 2021…
……
His depression and general symptomatology indicate that he requires psychotropic medication, in addition to his psychological treatment, which in my view should involve Dialectical Behaviour Therapy.
……
It is clear that his depression and anxiety are escalating, in the context of the uncertainty regarding his capacity to remain in Australia… These issues are relevant to the question concerning his prospects of rehabilitation.
……
It is apparent that [PYCS] has a troubling clinical and forensic history… In my view, there is a strong nexus between his untreated symptomatology, his drug use, his poor impulse control, lack of consequential thinking and susceptibility to peer group dynamics, all of which are relevant to him offending.
……
In this regard, I believe that he is trending from high risk of reoffending to moderate. His ultimate prognosis in this regard will depend upon his sustained motivation for treatment and maintaining a drug free existence.
……
…[PYCS] requires ongoing structure in his daily life in Australia. To this end, there are a number of protective factors, including the support of his family, an ongoing offer of employment and in addition, anticipated improvement in his mood, arising from consistent treatment.
……
What effect (if any) could prolonged immigration detention be expected to have on [PYCS]’s condition(s)?
[PYCS] will become institutionalised and inevitably there will be a serious escalation in his depression and anxiety… Protracted detention will create a situation where treatment of his symptoms will become increasingly problematic with the effluxion of time.
……
As a compounding variable, his Shia Muslim faith will inevitably lead to him being a target. He has a long history of persecution in Iran…”[23]
[23] Exhibit 6, Psychologist Report Tim Watson-Munro, pp 20-33.
In his evidence, Mr Watson-Munro said that the Applicant was “trending” from high risk to moderate risk of reoffending. He accepted that the Applicant’s oral evidence, in which his explanation of his conduct towards AN1 on 27 July 2014 was that he was trying to instruct him not to take drugs, shows a lack of insight into his behaviour (it was actually an argument about an i-Pad or a similar device.) He also said that to have any reasonable prospect of overcoming his addiction and other issues, the Applicant needs to enter a residential rehabilitation programme for six to twelve months. He accepted that the Applicant’s abstinence in custody is not an indication of his capacity to remain drug free in the community. He was clear that the Applicant should not be released straight back into the community. He accepted that the relapse rate for ice addicts, even those who have been through rehabilitation programmes, is high.
Mr Watson-Munro also explained in his evidence that the Applicant suffers from symptomology consistent with a diagnosis of Post-Traumatic Stress Disorder including a hypervigilance to danger. His oral evidence was that such a hypervigilance to danger manifests itself in a way that the Applicant is in a constant state of arousal and is constantly sensing danger, people who experience such symptomology often find it very difficult to relax. This, perhaps, to an extent, explains some of the past behaviours of the Applicant, in particular the possession of knives on his person.
The Applicant has made recent enquiries about accessing residential rehabilitation programmes, but as yet, has not secured any place in one. If he were released now, he would have nowhere pre-arranged to live, no money and no place in a suitable rehabilitation programme. He would, however, probably have access to employment with MH.
LEGISLATIVE FRAMEWORK
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.”
There are two issues presently before the Tribunal:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;
·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
There is no dispute that the Applicant does not pass the character test.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.
In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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 measurable 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 non-citizens 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 non- citizens 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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
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.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[24]
“…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.”[25]
[24] [2018] FCA 594.
[25] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant’s criminal history commenced in 2010. In March 2014, he violently assaulted his mother, demanding money, though no charges were pursued. His mother was approximately sixty years of age at the time and suffered from various ailments. Up to this time, his offending included drug offences, possession of a knife, and other relatively minor offending for which he was mostly fined.
His offending on 27 July 2014 involved what must have been a frightening episode of domestic violence directed at AN1 during the course of which he attempted to attack him with a large, serrated knife. He was charged and convicted of this offence. This is obviously very serious offending. The fact that there was not a severe injury or even a fatality was a matter of luck. In addition to this, he has breached court orders when he has been shown lenience by the courts.
The Applicant has been detected carrying a knife on many occasions. On occasions, this has been concealed on his person. He has used a knife as a weapon and has been the victim of stabbings. The fact that he has not so far seriously injured anyone when in a rage, must be a matter of good luck. He has engaged in domestic violence against his mother, who at the time was approximately sixty years old and his nephew, AN1. He has been a drug dealer.
Having regard to all these matters, the Applicant’s offending must be regarded as very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
There is evidence of offending relevant to this subparagraph. The Applicant has admitted assaulting his mother in 2014. At the time, she was suffering from various health ailments and was approximately sixty years of age. This is, by any measure, serious conduct committed against a vulnerable member of the community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant has been sentenced to various terms of imprisonment. This is a reflection of both his serious offending and his disregard for court orders. This consideration again weighs heavily against the Applicant. He conceded in his evidence that between 2010 and 2020, it was only in 2017 that he spent a full year out of prison. For some of this time, he was overseas.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As can be seen from “Annexure B”, the Applicant has a lengthy criminal record. His offending in relation to domestic violence involves two episodes on 10 March 2014 and on 27 July 2014. Only one was prosecuted, but he admitted to the other. There is no evidence that the Applicant’s offending with respect to domestic violence has continued beyond these two occasions. His other offending, particularly in relation to drugs, however, has continued and has become more serious.
This consideration also weighs heavily against the Applicant
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
As can be seen from “Annexure B”, the Applicant has been a habitual offender for the best part of a decade. The cumulative effect of his offending has been very serious to both his immediate victims, who include his close family, and to the Australian community generally.
This consideration weighs heavily against the Applicant.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant has made two false declarations on incoming passenger cards regarding his criminal record.[26] His explanation that he didn’t understand the written question is self-serving and lacks credibility. He volunteered that if he had been asked in person he could have understood. This consideration also weighs against the Applicant.
[26] Exhibit 5, G2K & G2L, pp 93-94.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence to suggest the Applicant has actually been provided with a formal warning and therefore this consideration is neutral.
I do not consider factor (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s Visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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) provides that in assessing the risk that may be posted by the non-citizen 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;
(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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
As is often the case in matters such as this, there is a strong connection between the Applicant’s mental health issues, his substance abuse, and his criminal behaviour. Unless the Applicant is able to properly address his mental health issues and to avoid the use of drugs, it seems inevitable that he will continue to offend.
Likelihood of engaging in further criminal or other serious conduct
Having regard to all of the evidence it is impossible to disentangle the question of the Applicant’s likelihood of reoffending and his successful rehabilitation from drug use. There is nothing in the evidence so far to inspire any confidence that the Applicant has the capacity or the necessary supports to be able to avoid drug use and reoffending in the future. Mr Watson-Munro, who was called for the Applicant, was very pessimistic about the Applicant’s prospects of staying drug free unless he was prepared and able, to enter into a six-to-twelve-month intensive residential rehabilitation programme. The Applicant has made some enquiries about accessing such a programme in the last few weeks. He has not secured a place. If released now, he may be homeless, his only plan is to obtain employment through his friend, MH, in MH’s two family tiling businesses. The Applicant has non-specific plans to rent a room in a house in Sydney which he believes he would be able to do for approximately $150 a week. When asked what kind of support he would be prepared to give the Applicant, MH noted that he would help him financially to get on his feet and motivate him to get back to work.
The Tribunal cannot issue conditional orders, or impose parole like conditions. The Applicant would at present, be released without the essential rehabilitation program in place. His living arrangements and immediate means of support are unclear. It would be totally up to him to persevere and secure a residential rehabilitation place. If he does try, he may have to wait some time to secure a place, due to the high demand for these services. There is also a question of cost or securing a place in a suitable programme at little or no cost. Even his own expert witness was pessimistic about the outcome if he was not placed straight into an appropriate residential programme. The Applicant must, on the facts as they presently stand, (as distinct from what they may be), present a very high risk of reoffending.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against the Applicant.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant’s history of family violence has been set out in detail above. The two instances in 2014 involve a cowardly attack, to extract money from an unwell, elderly woman (his mother), and an attack on his nephew, AN1. This second attack involved a weapon, namely a knife. Witness statements from AN1 suggests that the Applicant had stabbed his nephew in the past, although this remains untested.[27] His sister (ZH), expressed fear of him and said, “if he continues using drugs it won’t only affect his life, it will be a risk to me and my family”.
[27] Exhibit 8, R4, p 59.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs very heavily against the Applicant.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· 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);
· 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;
· 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;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children in Australia are:
(a)Child A – the Applicant’s biological son;
(b)Child B – the Applicant’s nephew: son of sister ZH;
(c)Chid C – the Applicant’s niece’s son; and
(d)Child D – the Applicant’s niece: daughter of sister FH.
Child A
The Applicant believes Child A to be his biological son. Child A is approximately nine or ten years old. The Applicant has had no contact with him at all. He is only aware of his existence and his name because some years ago, the child’s mother contacted him asking for money. The Applicant would like to have a relationship with Child A, however, given that he has had no relationship with him up to the present time, and that he has no relationship with the child’s mother, the prospect of any relationship between the two developing would seem to be quite remote. Whatever might be said about Child A, he is totally supported by people other than the Applicant. If the Applicant were to rehabilitate himself, and to find out where Child A was, and to obtain the co-operation of the child’s mother in having contact with him, there may be some prospect of him making a positive contribution to Child A’s life.
There would be some potential benefit to Child A, if the Applicant remained in Australia and did not resume drug use. This would depend on the child’s mother being prepared to co-operate. There is nothing to suggest that she would.
Child B
Child B is the Applicant’s nephew. He is four and a half years old. During the time that the Applicant has not been in prison, he had regular contact with his sister ZH and Child B. The evidence is that the Applicant has a good relationship with Child B. Since he has been in prison, contact has been maintained on a regular basis electronically when he has contacted his sister. ZH explained Child B enjoys talking to the Applicant, one on one over phone or video call, after ZH and the Applicant have finished talking. The Applicant is present in Child B’s life, but he has never been a primary care giver or financial contributor. ZH gave evidence that the Applicant would look after Child B if she was out of the house caring for their mother and that she would be happy to see the Applicant have a continuing relationship with Child B if he were returned to the community, provided that he was not using drugs. If he was using drugs, she would not feel that Child B or herself would be safe around the Applicant.
Child C
Child C is 18 months old. The Applicant has not met Child C in person but has seen the child on a video call. The Applicant can’t recall the child’s name. The Applicant has had no meaningful contact with Child C.
Child D
Child D is 3 years of age and is the daughter of the Applicant’s sister FH. The Applicant can’t recall her name. He has met her a few times, but again has had no real presence in her life. Child D’s mother was not called to give evidence in support of the Applicant. The Applicant said very little about his sister FH, referring almost entirely to sister ZH. It is reasonable to conclude that the Applicant is not as close to sister FH as he is to sister ZH, and by extension the same can be said about their respective children.
Conclusion: Primary Consideration 3
The Applicant has had some presence in the life of Child B and virtually no presence in the lives of the other three. If he were returned to the community and he did not resume taking drugs, his presence may be of some benefit to Child B and possibly the other three.
Having regard to all of the above, and assuming in the Applicant’s favour that he did not resume taking drugs, Primary Consideration 3 weighs slightly in favour of revocation. If he did resume drug taking, he would have probably no contact with any of the children and to the extent that he did, he would, according to ZH, be a risk to them.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a 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 are 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)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[28]
[28] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant’s criminal record as set out in “Annexure B”.
(b)The Applicant has been involved in criminal activity almost continuously since 2010. He has committed serious offences of domestic violence, including against his aged and unwell mother. He has been involved in the supply of illegal drugs, he appears to have a propensity to carry and use knives as a weapon, he has breached various court orders, he has been imprisoned on multiple occasions. He has made false declarations on entry documents.
(c)The Applicant has been involved in violent behaviour and admitted to drug taking (cannabis) while in prison or detention. He was involved in a violent incident in detention in September 2021.[29] He spat on detention officers. He sought to explain this incident away by saying that the whole incident was “not his fault” and that he had gotten dust in his throat when held to the ground and was “cleaning his throat of dust” when accidently he spat on an officer. This is another example of self-serving and reconstructed evidence.
(d)Notwithstanding the Applicant’s mental health issues, any realistic assessment of the Applicant’s history indicates that in the absence of a dramatic change in his attitude, he is likely to continue to offend. He has made no concrete plans to enter a suitable residential rehabilitation facility. All the Tribunal has to balance this, is the Applicant’s subjective assertion that he has “changed” and this subjective assertion being echoed by his witnesses. According to his own expert witness (Mr Watson-Munro) his present risk of re-offending is high, trending (subject to appropriate residential rehabilitation) to medium. The Applicant is at serious risk of reoffending and of being a serious and continuing burden on the Australian community and criminal justice system.
Conclusion: Primary Consideration 4
[29] Exhibit 8, R16, pp 538-549.
Primary Consideration 4 weighs heavily against cancelling the revocation of the Applicant’s Visa
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
a) International non-refoulement obligations
In making the assessment for weight to be allocated to international non-refoulement obligations, paragraph 9.1 of the Direction directs as follows:
“(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 nonrefoulement 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 noncitizen 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 nonrefoulement obligations.”
The Applicant and his family are Shi’a Muslims. The Applicant asserts that he has a genuine fear of persecution if he is returned to Afghanistan that he may be killed or harmed by the Taliban because of their dislike for Shi’a Muslims. He also has fears of being harmed by the radical Islamic State in Khorasan Province (ISKP) group. According to the Department of Foreign Affairs and Trade Country Information Report Afghanistan (the DFAT Report)[30], ISKP maintains a presence in 30 districts across Afghanistan and it is estimated the overall size of the group as being 1,500 and 6,000. Its specific targets are the Shi’a community. In 2018, there were 1,871 civilian casualties as a result of attacks by ISKP deliberately targeting civilians. Such attacks were mainly “suicide and complex attacks, including sectarian-motivated attacks against Shi’a”[31]. The DFAT Report notes various other attacks by ISKP on Shi’a since 2015, resulting in significant civilian casualties.
[30] Exhibit 6, pp 40-92.
[31] Exhibit 6, DFAT Report, p 59.
I note that the DFAT report indicates that the Taliban and ISKP are in opposition, and while there is not any specific mention of the ISKP’s activities being suppressed by the Taliban, this could indeed be a necessary inference due to their opposition to one another and the fact that the Taliban is in control of much of the country. As noted above, the ISKP in recent years, and indeed currently, conducts significant attacks on civilians which result in a significant number of deaths and kidnappings. With respect to the Applicant’s Shi’a faith, the DFAT Report notes the following:
“DFAT assesses that Shi’a face a high risk of being targeted by ISKP and other militant groups for attack based on their religious affiliation when assembling in large and identifiable groups, such as during demonstrations or when attending mosques during major religious festivals. This risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat”.[32]
[32] Ibid, p 68.
The Applicant’s family is originally from Mazar-i-Sharif, this being one of the major urban areas in Afghanistan.[33] It is likely that the Applicant may choose to live here, or indeed in another major urban centre, if he is returned to Afghanistan. Consequently, given the above information, the Applicant may be at a greater risk given his Shi’a identity and the probability that he will return to live in a larger urban centre.
[33] Ibid, 48.
Any assessment of such a claim the present time is complicated by the dynamic nature of recent events in Afghanistan. The Tribunal is not in a position to make a conclusive finding about whether non-refoulement obligations are in fact owed to the Applicant. That said, it is possible that the Applicant may suffer harm or persecution at the hands of the Taliban or some other group, because of his religion. His name alone is sufficient to identify him as a Shi’a. It is possible that his removal to Afghanistan would therefore breach these obligations.
This of course is not necessarily the end of the matter, if the decision to cancel the Applicant’s Visa is not revoked, he could still seek to obtain a different visa, for example a Protection Visa. A Protection Visa is specifically intended to apply in circumstances where an Applicant might face persecution. This Tribunal is not in possession of the detailed specific information that might be available in consideration of an application for a Protection Visa.
There is also the question as to whether the Applicant would be able to go somewhere other than Afghanistan. There is presently no evidence before the Tribunal to suggest that he can.
There were questions raised prior to the hearing as to whether it was an open possibility for the Applicant to be returned to Iran, pending the ascertainment of whether he is eligible to hold Iranian citizenship. It is agreed by the Applicant and the Respondent that the Applicant has no right to return to Iran, or to obtain Iranian citizenship. It is agreed that the only relevant country for the purposes of this other consideration is Afghanistan.
I am particularly mindful of Paragraph 9.1(6) of the Direction. Having regard to all of the above, and the dynamic and unpredictable course of events that may unfold over the weeks, months, and years ahead in Afghanistan, I am of the view that this Other Consideration (a), although not clearly established, may be assumed. This weighs in favour of revocation of the cancellation of the Visa.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is twenty-nine years of age. He has had a limited education. Although his physical health appears satisfactory, he does have significant mental health issues. These mental health issues in turn, play into his drug abuse problems and his criminal behaviour. If the Applicant is to improve his behaviour, he will require intensive, ongoing mental health services. It is almost impossible to imagine that any services of this kind available to him in Afghanistan, would in any way compare with those available to him in Australia. This is of particular concern in circumstances where the Tribunal has heard evidence from Mr Watson-Munro in which concerns were raised about the Applicant being returned directly to the community and not directly into an intensive drug rehabilitation centre for a period of six to 12 months. Such a service would certainly not be available to the Applicant in Afghanistan and if he were to relapse into drug use, a possibility which was assessed as being somewhat high by Mr Watson-Munro, as is the case for many former ice users, the Applicant would not be afforded the opportunity to actively rehabilitate himself.
The question of language and cultural barriers is also complex in this case. Even though the Applicant is a citizen of Afghanistan he has never lived there, and he has no close family there. He does have relatives, but he does not know them. It was argued by the Applicant that his language is a minority one and so he would be disadvantaged. There are many languages spoken in Afghanistan. If he were to return to the area of Mazar-i-Sharif, from which his father came and where his relatives live, this would not be so much the case. It would be very difficult for him to be returned to a place with which he is completely unfamiliar and in circumstances where he is without any support. Living conditions would be much poorer than in Australia. Medical services, employment opportunities, and even basic utilities and food may be scarce. Afghanistan is a war ravaged, third world country.
This Other Consideration (b) weighs heavily in favour of the Visa cancellation being revoked
(c) Impact on victims
This Other Consideration (c) requires that 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.
The only known victims of the Applicant are his nephew and his mother. His mother passed away after a long illness in 2021. His nephew has returned to live in Iran. There is no evidence, therefore, of any victim in Australia who may be impacted.
This Other Consideration (c) is neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has two sisters, their children, a niece and her child, and a son in Australia. He has friends in Australia. It would seem that he is valued as a good worker in the tiling job that he has previously held. The evidence from MH suggests that job would be available to him should he be returned to the community. The Applicant has lived in Australia for approximately half his life and has made some contribution through productive work and paying taxes, although he has also wasted a lot of public resources through his extensive interactions with the criminal justice system and multiple terms of imprisonment.
This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs in favour of revoking the cancellation of the Applicant’s Visa
Impact on Australian business interests
This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: weighs in favour of revocation;
(b)extent of impediments if removed: weighs heavily in favour of revocation;
(c)impact on victims: is neutral;
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: weighs in favour of revocation.; and
(e)the impact on Australian business interests: is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary Consideration 1 weighs very heavily against revocation.
Primary Consideration 2 weighs very heavily against revocation.
Primary Consideration 3 weighs slightly in favour of revocation.
Primary Consideration 4 weighs against revocation.
Other Considerations (a) and (d), paragraph 9.4.1 of the Direction, weigh in favour of revocation.
Other Consideration (b) weighs heavily in favour of revocation.
Other Considerations (c) and (d), paragraph 9.4.2 of the Direction, are neutral.
In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do not find that there is “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.
...........................[Sgnd]..............................Legal Administrative Assistant
Dated: 25 November 2021
Date of hearing: 17 & 18 November 2021 Advocate for the Applicant:
Dev Bhutani,
Maurice Byers Chambers
Advocate for the Respondent: Tim Reilly,
Seven Windeyer Chambers
Annexure A – List of Exhibits
Exhibit no.
Lodged by
Document
1
Applicant
Statement of Facts, Issues, and Contentions
2
Respondent
Statement of Facts, Issues, and Contentions
3
Applicant
Submissions in Reply
4
Respondent
Submissions on Non-Refoulement Obligations
5
Respondent
G-Documents
6
Applicant
Applicant’s Evidence Bundle
7
Applicant
Corresponding Evidence Bundle to Applicant’s Submissions in Reply
8
Respondent
Tender Bundle
9
Respondent
Report on Citizenship Law: Iran – European University Institute – September 2020
Annexure B – Applicant’s Offending History
Court
Court Date
Offence
Court Result
Campbelltown Local Court
08/11/2012
Possess prohibited drug
Fine - $350
Campbelltown Local Court
07/03/2013
Break & Enter house etc steal value <= $60,000
Imprisonment – 7 months
Non-parole period – 4 months
Campbelltown Local Court
14/03/2013
Custody of knife in public place – first offence
Fine - $900
Possess prohibited drug
Fine - $600
Liverpool Local Court
04/06/2013
Destroy or damage property <= $2000
Fine - $450
Campbelltown District Court
13/09/2013
Break & Enter house etc steal value <= $60,000
Conviction confirmed
Campbelltown District Court
27/09/2013
Break & Enter house etc steal value <= $60,000
Conviction confirmed – in lieu imprisonment: 6 months and 1 week suspended on enter bond
Supervision NSW probation service – obey all reasonable directions in particular to mental health issues and drug rehabilitation for as long as deemed necessary
Liverpool Local Court
18/02/2014
Deposit litter
Fine - $300
Downing Centre District Court
29/05/2014
Break & Enter house etc steal value <= $60,000
(Call up) Imprisonment – 6 months 1 week
Non-parole period with conditions – 3 months
Parramatta Local Court
15/08/2014
Use offensive language in/near public place/school
Fine - $600
Parramatta Local Court
12/10/2015
Assault occasioning actual bodily harm (DV)
Imprisonment – 12 months
Non-parole period – 9 months
Armed w/I commit indictable offence
Contravene prohibition/restriction in AVO (Domestic)
Paramatta District Court
09/02/2016
Assault occasioning actual bodily harm (DV)
Order varied:
Imprisonment 12 months
Non-parole period – 6 months
Armed w/I commit indictable offence
Contravene prohibition/restriction in AVO (Domestic)
Fairfield Local Court
12/04/2017
Possess prohibited drug
Fine - $300
Paramatta District Court
30/07/2019
Supply prohibited drug > indictable quantity (not cannabis)
Imprisonment – 18 months
Non-parole period – 13 months and 2 weeks
Paramatta Local Court
12/02/2020
Possess prohibited drug
Fine - $350
Goods in personal custody suspected being stolen (not m/v)
Fine $250
Paramatta Local Court
11/12/2020
Possess prohibited drug
Imprisonment (aggregate) – 12 months
Non-parole period – 7 months
Destroy or damage property <= $2000
Taken into account on Form 1
Possess prohibited drug
Enter inclosed land not presc premises w/o lawful excuse
Conviction – no penalty
Goods in personal custody suspected being stolen (not m/v)
Taken into account on Form 1
Stalk/intimidate intend ear physical etc harm (personal)
Stalk/intimidate intend fear physical etc harm (personal)
Imprisonment (aggregate) – 12 months
Non-parole period – 7 months
Possess prohibited drug
Larceny value <= $2000
Custody of knife in public place – first offence
Taken into account on Form 1
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0
6
0