PZZC and Minister for Home Affairs (Migration)

Case [2018] AATA 4125

PZZC and Minister for Home Affairs (Migration) [2018] AATA 4125 (2 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4542

Re:PZZC

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Ms Anna Burke, Member

Date:2 November 2018

Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the applicant should not be refused a Safe Haven Enterprise (CLASS XE) Visa under s 501(1) of the Migration Act 1958 (Cth).

...............[sgd].........................................................

Ms Anna Burke, Member

MIGRATION – visa refusal – applicant is a stateless Palestinian born in Syria – applicant applied for a Safe Haven Enterprise (Class XE) visa – applicant does not pass
character test in s 501(6)(a) – applicant not of good character on account of substantial criminal record – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of re-offending – best interests of minor children in
Australia – international non-refoulement obligations – decision under review set aside

Legislation

Migration Act 1958 (Cth); ss 36(2)(aa) 195A, 197C, 499, 500, 501
Evidence Act 2008 (Vic); s 128

Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
DMH16 v Minister for Immigration and Border Protection (2017) 253 FCR 567
NBMZ v Minister for immigration and Border Protection (2014) 220 FCR 1
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014

REASONS FOR DECISION

Ms Anna Burke, Member

2 November 2018

  1. On 5 June 2018 a delegate of the Minister for Immigration and Border Protection (the Minister) issued a Notice of Intention to Consider Refusal of PZZC’s Safe Haven Enterprise (Class XE) visa application under s 501(1) of the Migration Act 1958 (Cth) (the Act). On 2 July 2018 PZZC’s legal representatives provided a response to the notice and requested that the discretion be exercised not to refuse the application.

  2. On 10 August 2018 a delegate of the Minister made a decision to refuse PZZC’s application for a protection visa under s 501(1) of the Act. Notice of this decision was provided to PZZC on 13 August 2018. The delegate found that PZCC did not pass the character test, as set out in s 501(6) of the Act as he had a substantial criminal record after being convicted and sentenced on 23 December 2016 by the Children’s Court of Victoria to seven criminal offences resulting in  custodial sentences of 26 months. The delegate found that PZZC’s offending was very serious, especially that of intentionally…

Continue reading PZZC and Minister for Home Affairs (Migration)

Sign in free to access the full text

Details
AGLC
PZZC and Minister for Home Affairs (Migration) [2018] AATA 4125
Case
[2018] AATA 4125
Decision Date

CaseChat Overview and Summary

This matter concerned an application by PZZC for review of a decision to refuse to grant him a visa. PZZC, a stateless Palestinian born in Syria, arrived in Australia as an unlawful maritime arrival at the age of 15. He was being held in immigration detention at the time of the Administrative Appeals Tribunal hearing. The Minister for Home Affairs was the respondent.

The primary legal issue before the Tribunal was whether to exercise its discretion to refuse PZZC's visa under s 501(1) of the Migration Act 1958 (Cth), given that he did not pass the character test. This required the Tribunal to consider the primary considerations outlined in Part B of the Direction, specifically the protection of the Australian community from harm and the best interests of any minor children affected by the decision. The Tribunal was also required to give greater weight to primary considerations over other considerations, and to consider whether one or more primary considerations might outweigh other primary considerations.

The Tribunal's reasoning focused on the nature and seriousness of PZZC's criminal offending, which included violent acts against his ex-girlfriend, and the risk he posed to the Australian community. It also considered the best interests of his young son and younger siblings. While acknowledging the tragic circumstances PZZC and his family had endured, the Tribunal found that the primary consideration of protecting the Australian community weighed against the refusal of the visa. Regarding the best interests of his son, the Tribunal noted the limited weight to be given due to PZZC having no contact with the child and the ex-partner's resistance to contact. Similarly, while PZZC had a close relationship with his younger siblings, limited weight was given to their best interests as he was not performing a parental role.

The Tribunal determined that the primary consideration of protecting the Australian community weighed against the cancellation of the delegate's decision to refuse PZZC's visa. The Tribunal's decision was to refuse the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 14 August 2018 PZZC lodged an application with the Administrative Appeals Tribunal under s 500(1)(b) of the Act seeking review of the decision to refuse to grant the visa. At the time, PZZC was being held at Yongah Hill Detention Centre (CIDC), and he was transferred to Melbourne to appear in person at the Tribunal. At the hearing of his application on 22 and 23 October 2018, PZZC was represented by Mr Andrew White of Counsel instructed by Mr Simon Bruck of the Refugee Advice & Casework Service. Mr David Brown, solicitor from Australian Government Solicitor, appeared for the Minister. The Tribunal and the parties were also assisted by interpreters in the Arabic language. The Minister lodged a set of paginated documents (the G-Documents) and a set of supplementary G-Documents. The applicant provided a number of written statements to support oral evidence, as well as several other documents. A full list of the documents tendered into evidence is appended to this decision.BACKGROUND PZZC is a 20-year-old stateless Palestinian born in Syria, who arrived in Australia as an Unlawful Maritime Arrival at Christmas Island in December 2013 aged 15, with his parents and three siblings. The background information has been compiled from statements tendered by PZZC’s representatives, and from information provided by the respondent. The information was not contested during the hearing and was additionally informed by the findings of the delegate in PZZC’s parents’ Safe Haven Visa application where the delegate found: With the conflict in Syria in its fifth year, the humanitarian situation continues to deteriorate rapidly. The total number of people in need of humanitarian assistance and assistance inside Syria has reached 13.5 million up from 12.2 million in February 2015, including approximately 6.5 million internally displaced persons. In 2015, violence continued to escalate inside Syria amid an absence of meaningful efforts to end the war or reduce abuses. The government and its allies carried out deliberate and indiscriminate attacks on civilians. Incommunicado detention and torture remains rampant in detention facilities. Non-state armed groups opposing the government also carried out serious abuses including attacking civilians, kidnapping, and torture. The armed extremist group Islamic State (also known as ISIS) and Al-Syria, Jabhat al-Nusra, were responsible for systematic and widespread violations, including targeting civilians, kidnappings, and executions. According to local Syrian groups, as of October 2015, the death toll in the conflict reached more than 250,000 people including over 100,000 civilians. According to local groups, more than 640,000 people live under long-term siege in Syria. The conflict has led to humanitarian crisis with an estimated 7.6 million internally displaced in 4.2 million refugees in neighbouring countries. Access to food, water and sanitation, housing, health care and education is severely affected by the cumulative effects of armed conflict and the related destruction of infrastructure, disruption of essential services and loss of livelihoods. All parties to the conflict are implicated in targeting vital services resulting in interruptions to the supply of safe drinking water and electricity.UNHCR list Palestinian refugees in Syria as among the most vulnerable of the affected population groups in the country. It states that Palestine refugees in Syria are disproportionately affected by the conflict, due to poverty before the war, displacement along front lines, and a high risk of detention and refoulement when seeking refuge in neighbouring countries. Reports advised that Palestinian refugees in Syria are particularly vulnerable with 95% completely dependent on humanitarian assistance to meet their basic needs. The government reportedly cut off humanitarian aid and access to the predominantly Palestinian neighbourhood of Yarmouk in 2013, leaving 18,000 civilians without medical care at risk of starvation. Following ISIS incursion into the camp, humanitarian access to Yarmouk and environs worsened.…In conclusion, I am satisfied that the applicant is a Palestinian refugee from Syria and a Sunni Muslim. I am satisfied that he is from Yarmouk in Syria. I accept he fled Syria to escape the escalating violence and the growing humanitarian crisis in the country. I also accept he fears his sons being forcibly conscripted by the military in Syria.

Evidence

Evidence Before The Court

Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations. EVIDENCEPZZC’s Criminal Offending The following table has been derived from a Victoria Police Criminal Record dated 15 January 2017: The incidents alleged by his ex-girlfriend occurred over several weeks. At the children’s court in Melbourne PZCC pleaded guilty to all charges arising out of those incidents., In respect of the first offence, Mr Guy Coffey, clinical psychologist, prepared a pre-sentencing report for PZZC’s legal representatives. In it he describes the relationship and the events leading to the conviction of 23 December 2016 in the following terms:[PZZC] and [his ex-girlfriend] met on Facebook. The relationship evolved quickly. Within a few days the couple had declared their love for one another.[She] was 18 years old and living in Sydney; her parents were in Glenroy. After a week of contact through Facebook and phone calls [the ex-girlfriend] decided to come to Melbourne. [PZZC] gave the following account of their meeting. He said [his ex-girlfriend] rang from Melbourne airport and asked to be picked up. [PZZC] said he didn’t have a car. Instead he met her at Flinders Street Station. [PZZC] took [her] to his place. It was about 8pm when they arrive. His parents were surprised and displeased. He said he and his parents argued vociferously while [the ex-girlfriend] waited. His parents said that bringing a girl to the house was grossly disrespectful to his family, that it was presenting a shocking example to his younger brothers and sisters and that she had to leave. He and [his ex-girlfriend] were not persuaded; he said [the ex-girlfriend] had nowhere to go and should be allowed to stay. He threatened to harm himself if she was sent away. The argument went for an hour or more and finally the parents capitulated; he took [his ex-girlfriend] up to his bedroom where she slept. He said this was a novel experience for him – he had never had so much as a passing friendship with a girl and now we had one in his bed.[PZZC] said he immediately formed an intense attachment to [her]. He said he thought she was sent by God to give him a better life after all he had been through. He said he was aware that he was stepping outside his family’s cultural norms. He said in Syria her family would never have allowed it; they would have come and dealt with him.He said they spent all the time together from the moment they met. They passed most the time in his room and they would go for walks. They didn’t meet with other youths; [her] friends were in Sydney and [PZZC] withdrew from his friendships: he said he would have felt jealous and insecure if she had met them.They began to argue within a month of meeting. The accounts of [PZZC] and [his [ex-girlfriend] differ substantially regarding the nature of the conflict.[PZZC] said that [his ex-girlfriend] began demanding unreasonable things, for instance that they buy a house and a car for themselves. She would scream during arguments and when the parents told them off, she would threaten to go to the police, a threat that was very frightening because the family’s insecure residency status. He said she had contact with boys on the phone and this left him feeling angry and jealous; he said this made him feel he “wasn’t a man”. He said, “[i]n our culture, when the girl is with someone, she just can’t talk to anyone else”. He said he tried to have her delete the contact details of boys on the phone. He said when they argued they would be physically aggressive to one another. He recalled in early March 2016 [she] wanted to leave but he wouldn’t permit her to, because he said, he feared she would go to the police and the family could be re-detained.[She] became pregnant in January 2016; it was unplanned. [PZZC] said he was taken aback: “I didn’t know you could get pregnant straight away”.[The ex-girlfriend] described the commencement and course of their relationship somewhat differently. She said they met on Facebook and that [PZZC] came to Sydney to meet her where they spent some time together before they came to Melbourne. In Melbourne she lived with her parents and then moved in with [PZZC] at his family house. She said he seemed to be a good person but he soon became controlling. He began to lock her in his room whenever they argued; he would kick and slap her; he would call her a slut; he questioned the paternity of their unborn child and wanted her to terminate the pregnancy; he wouldn’t allow her to be by herself in public; and he deleted her phone’s contact numbers and took her cards and money.On 8 March 2016 she made a statement to the police’ she described his controlling behaviour and reported that he had slapped her and tried to hit her with a glass. She went to live with parents in Glenroy. According to [her], [PZZC’s] family invited her back, and because of the pregnancy her family agreed and there was an attempt at reconciliation. She returned to live with [PZZC] after about two to three weeks and within a week of the index offence on 31 March 2016.[She] reported than on the night of 27 March, after she refused to have sex with [PZZC] and wanted to contact her mother, he choked her; punched her in the stomach repeatedly saying he wanted to get rid of the baby; and threatened her with a knife. The next day, [she] and [PZZC’s] families were to meet in Geelong. [She] said she used the pretext of a family meeting to make contact with her parents. She informed her parents of the assault and that night she made a statement to police. An uncontested interim family violence order was made against [PZZC] on 28 March 2016. The conditions of the order were explained to [PZZC] at [the local] Police Station on 29 March 2016.[She] said [PZZC] responded to the separation by posting denigrating messages on Facebook, calling her slut and other abuse. On 30 March he began ringing her which persisted until the index offence. He also rang [her] father repeatedly. On the morning of the index offence he rang [her] continuously.[She] described the index offence in the following terms. At about 12pm she was sitting in the lounge room by self at her parents’ house when [PZZC] ran in the front door and began stabbing her while holding her hair. He ran off when [her] mother arrived and called out to ring the police. An ambulance officer who attended [her] immediately after the offence stated that [she] told her that “she was cutting food and her ex-boyfriend walked in through the door which resulted in an argument … [he] grabbed the kitchen knife on the bench which he… used to stab [her]”.On the day the offence police made telephone contact with [PZZC] at 9:30am and told him to attend the [local] Police Station at 1pm; they rang again at 2.00pm when he said he was on his way. [PZZC] made telephone contact at 4pm and was told to attend.[PZZC] denied the offending during the police interview on the evening of 31 March 2016, some six hours after the commission of the offence. Instead he claimed he was the victim of an assault at Glenroy railway station during which his hand was cut with a knife. He gave a similar account to a family friend his house in Glenroy he went to immediately after the offence.

Decision

Reasons for decision

Having regard to the nature and seriousness of PZZC’s conduct as well as the risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs against the cancellation of the delegate’s decision to refuse his visa.Best interest of minor children in Australia affected by the decision Paragraph 11.2 of the Direction relevantly provides that:(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.…(4) In considering the best interests of the child, the following factors must be considered where relevant:a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to main contact in other ways;e) Whether there are other persons who already fulfil a parental role in relation to the child;f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; andh) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. The Delegate in his determination to refuse PZZC’s visa found the best interest of his son would be served if his visa was not refused. However, the effect of the refusal on his son would be limited as he has had no contact with the child to date. Additionally, the Delegate found that PZZC had a close relationship with his younger siblings and it was not in their best interests for his visa to be refused. The advocate for the respondent argued the Tribunal should find the best interests of PZZC’s son might be served by not having his visa application refused. However, this should be given limited weight as he is yet to meet his son, and his ex-partner is resistant to him doing so. Additionally, the advocate for the respondent argued that some weight should be given to the best interests of PZZC’s younger siblings, as he has a close relationship with them and a refusal of his visa will have a detrimental impact on them. However, again, limited weight should be given to this aspect as he is not performing a parental role in respect of the children.

Ratio Decidendi

Legal Principle Established

As PZZC does not pass the character test, the Tribunal must consider whether it should exercise its discretion to refuse the visa under s 501(1) of the Act. In doing so, it must have regard to the relevant primary and other considerations within Part B of the Direction which are applicable. PRIMARY CONSIDERATIONSProtection of the Australian Community Paragraph 11.1 of the Direction provides that:(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the conduct Paragraph 11.1.1 of the Direction relevantly states that:(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled),… are serious;c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious;e)The sentence imposed by the courts for a crime or crimes;f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;g)The cumulative effect of repeated offending;h)Whether the non-citizen has provided false or misleading information to the department, including but not disclosing prior criminal offending;……….. Counsel for PZZC argued strenuously that this was a case of tragedy compounding tragedy, that the family had been threatened with violence, rape and death, had witnessed horrific scenes in their native Syria, particularly the bombing of their son’s school; and had survived a perilous journey to Australia tying themselves together with rope to survive or die together. They have struggled with resettlement in Australia In the face of dislocation they have survived and survived as a unit. Now they are facing a different nightmare; the possibility of being separated from their son indefinitely.