QJMV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1246
•7 May 2020
QJMV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1246 (7 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0995
Re:QJMV
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:7 May 2020
Place:Melbourne
The Tribunal sets aside the reviewable decision and substitutes a decision that the discretion under s 501(2) of the Act to cancel QJMV’s visa should not be exercised.
..............[sgd]..........................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Visa cancellation – citizen of Afghanistan – Resident Return (Class BB) (Subclass 155) visa – failure to pass character test – Ministerial Direction No. 79 applied – reviewable decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Sex Offender’s Registration Act 2004 (Vic)
CASES
BAL19 v Minister for Home Affairs [2019] FCA 2189
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113; [2010] FCAFC 33
DOB18 v Minister for Home Affairs [2018] FCA 1523
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Omar v Minister for Home Affairs [2019] FCA 219PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 485
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
7 May 2020
INTRODUCTION
The applicant seeks review of a decision, made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”), to cancel his Resident Return (Class BB) (Subclass 155) visa (“the visa”).[1]
[1] Exhibit R1, 7-10.
The hearing was held in Melbourne by video link on 28 and 29 April 2020. The applicant gave evidence with the assistance of an interpreter in the Hazaragi language. He was represented by Mr Hughan of counsel, instructed by AUM Lawyers. The respondent was represented by Mr Cunynghame of Sparke Helmore Lawyers.
For the reasons that follow, the Tribunal sets aside the reviewable decision and substitutes a decision that the discretion under s 501(2) of the Act to cancel QJMVs visa should not be exercised.
APPLICANT’S IDENTITY
Pursuant to s 501K of the Act the Tribunal will refer to the applicant, who has previously been found to be a person to whom Australia owes protection obligations, by the anonym QJMV. Certain details that might tend to identify QJMV have been redacted.
BACKGROUND
The factual background to this matter follows:
(a)QJMV is a 44-year old citizen of Afghanistan. He is of Hazara ethnicity and the Shi’a branch of Islam. QJMV married while living in Afghanistan in 2004. He and his wife have four children under the age of 18. His wife and children remain in Afghanistan. He also has four living siblings and other close family members who continue to reside in Afghanistan.[2]
(b)QJMV arrived in Australia approximately 10 years ago as an ‘irregular maritime arrival’[3] and was granted a Protection (Class XA) (Subclass 866) visa (“Protection Visa”). He was granted the visa that is the subject of this application in December 2017. QJMV has applied for Australian citizenship and to bring his wife and children to Australia. No decisions have yet been made on these applications;
(c)In late 2015 QJMV was found guilty of two charges of ‘Indecent act with child under 16’, relating to an incident that occurred on 26 January 2015.[4] The Court dealt with QJMV’s offending without conviction and by imposing an 18-month Community Corrections Order (“CCO”). He was subsequently convicted in April 2017 of contravening the CCO and two counts of ‘Fail to comply with reporting obligations,’ which was dealt with by way of a fine;[5]
(d)On 15 June 2019, approximately four and a half years after his offending, QJMV was notified that consideration was being given to cancelling his visa on character grounds.[6] After considering his representations[7] the visa was cancelled on 17 February 2020.[8] QJMV was subsequently taken into immigration detention where he presently remains;
(e)On 21 February 2020 QJMV requested that the Tribunal review the visa cancellation decision;[9] and
(f)Pursuant to s 500(6L) of the Act the Tribunal must discharge its review function in respect of this application by 11 May 2020.
[2] Ibid, 40.
[3] For a definition of this term see, for example, the Explanatory Memorandum to the Migration Amendment Regulation 2012 (No. 5) at:
[4] Exhibit R1, 23.
[5] Ibid, 22.
[6] Ibid, 116-119.
[7] Ibid, 46-67.
[8] Ibid, 7-10.
[9] Ibid, 1-6.
LEGISLATIVE FRAMEWORK
Taken together, s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and
s 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction to review visa cancellation decisions.Section 501(2) of the Act is one of a number of discrete powers conferred under s 501. It provides that:
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to introduce s 501(6)(e), amongst other amendments. The Explanatory Memorandum states in part:
‘New paragraph 501(6)(e) of the Migration Act provides that a person does not pass the “character test” if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child…
…
The purpose of this amendment is to ensure that a person who has been found by a court to have engaged in sexually based offences involving a child objectively does not pass the character test. Currently, such offences may be considered under subsection 501(6) of the Migration Act when deciding whether a person fails the character test, but this amendment removes the subjectivity from this assessment in cases where the person does not fail the substantial criminal record test in subsection 501(7) because a sentence of imprisonment of at least 12 months has not been imposed.’
The character test is defined in sections 501(6) to 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
…
Under s 501E(1) of the Act, visa cancellation precludes a person within the migration zone from applying for, or obtaining, certain other classes of visa. Under s 501E(2), however, the preclusion does not apply to applications for a protection visa or a bridging visa pending a person’s removal. Refusal of a protection visa application, or cancellation of a protection visa, precludes a further protection visa application, subject to the favourable exercise of a Ministerial public interest discretion (ss 48 and 48B(1) and (1B) of the Act).
If an applicant fails the character test, the Tribunal must then determine whether the discretion under section 501(2) of the Act to cancel the visa should be exercised.[10] Guidance in exercising the discretion is found in Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
[10] In undertaking this task, the Federal Court has reinforced the importance of adhering to a two-step process mandated by s 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing).
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the Tribunal must comply with the Direction.[11]
[11] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act. Clause 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’ Clause 6.1(2) states:
…
(2) … A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
By way of general guidance, cl 6.2 of the Direction provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) …
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…cancel a non-citizen’s visa under section 501… The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B…
The principles referred to under the heading ‘General Guidance’ are reproduced below and constitute a framework within which decision-makers apply relevant considerations:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(a) of the Direction provides that in cases relating to the cancellation of a visa, decision-makers must take into account the considerations in Part A of the Direction to determine whether a non-citizen forfeits the privilege of continuing to hold a visa.
If an applicant fails the character test, the following primary considerations at cl 9(1) of the Direction must be applied to the specific circumstances of the case:
a. Protection of the Australian community from criminal or other serious conduct;
b. The best interests of minor children in Australia; and
c. Expectations of the Australian community.
Clause 10(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
a. International non-refoulement obligations;
b. Strength, nature and duration of ties;
c. Impact on Australian business interests;
d. Impact on victims; and
e. Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, ‘information and evidence from independent and authoritative sources should be given appropriate weight.’
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57] and [78], in relation to a previous equivalent ministerial direction:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
In 2015 QJMV was found guilty without conviction in the Magistrates’ Court of Victoria of a sexually based offence involving a child. Pursuant to s 501(6)(e) of the Act he does not pass the character test.
ISSUE TO BE RESOLVED
The issue to be determined is whether the discretion under s 501(2) of the Act to cancel QJMV’s visa should be exercised.
EVIDENCE BEFORE THE TRIBUNAL
The following documents were taken into evidence:
(a)Documents lodged by the respondent, comprising: G-documents numbering 130 pages;[12] Supplementary G-documents numbering 180 pages;[13] and Further Supplementary G-documents numbering 72 pages;[14]
(b)QJMV’s application for Australian citizenship by conferral dated 23 July 2015;[15]
(c)QJMV’s statement dated 1 April 2020;[16]
(d)A personal reference from the Company Director of a business that QJMV has worked for during the past seven years;[17]
(e)A document from Australia’s Department of Foreign Affairs and Trade titled: ‘DFAT Country Information Report Afghanistan;’[18]
(f)A document from the United Nations Refugee Agency titled: ‘Afghanistan: Compilation of Country of Origin Information (COI) Relevant for Assessing the Availability of an Internal Flight, Relocation of Protection Alternative (IFA/IRA/IPA) to Kabul,’ dated December 2019;[19]
(g)A document from the United Nations Refugee Agency titled: ‘UNHCR Eligibility Guidelines For Assessing the International Protection needs of Asylum-Seekers From Afghanistan,’ dated December 2019;[20] and
(h)A document from Australia’s Department of Foreign Affairs and Trade titled: ‘DFAT Country Information Report Pakistan,’ dated 20 February 2019.[21]
[12] Exhibit R1.
[13] Exhibit R2.
[14] Exhibit R3.
[15] Exhibit R4.
[16] Exhibit A1.
[17] Exhibit A2;
[18] Exhibit A3.
[19] Exhibit A4.
[20] Exhibit A5.
[21] Exhibit A6.
Evidence of QJMV
QJMV adopted his written statement as true and correct.
In his oral evidence, QJMV said he had not returned to Afghanistan since leaving in 2009 after being threatened and arrested by the Taliban. He claimed that his work as a driver of a minibus transporting up to 10 people between Kabul and Ghazni is what drew him to the Taliban’s attention, resulting in accusations that he was ‘transporting government people.’ He claimed that on the first and second occasions his vehicle was stopped by the Taliban, he explained that he was ‘just a driver’ doing his job. He said the Taliban released him with warnings after being unable to find any proof that his passengers were Afghan Government employees. On a third occasion the Taliban ‘arrested’ him and two of his passengers, who were Afghan policemen. He claimed that the Taliban beat him, but he escaped on the third night of captivity by smashing a window and running away. QJMV said the Taliban were ‘shouting and firing’ towards him during the escape, but he evaded them and at daybreak ‘stopped a car and returned to [his] house in Kabul.’ When asked about any injuries sustained, QJMV referred to bruises and a small cut on his left arm just below his shoulder, which occurred as he exited the broken window. When asked about any other issues or problems encountered prior to leaving Afghanistan, QJMV said his brother was killed by a bomb blast at the shop they worked at. He claimed to have received ‘some warnings’ after this and one day while in a bazaar in Kabul, said he was followed by the Taliban, after which he decided to move to Australia.
QJMV said it took him about two months to travel to Australia and, after arriving at Christmas Island in April 2010, he was placed in immigration detention for approximately nine months before being released into the community. He lived in Western Australia for two months and then moved to Adelaide for about two years. He commenced work in his current trade while living in Adelaide, and subsequently moved to Melbourne where he has worked consistently in that trade.
QJMV said he missed his wife, children and extended family very much. His family members live predominantly in Kabul and he communicates with them frequently via email and smartphone applications. QJMV said he supported his wife and children by working in Australia. His wife’s parents, who lived ‘twenty minutes away’ in Kabul, also help look after his wife and children.
QJMV agreed he has travelled to Pakistan on five occasions since arriving in Australia, most recently on two occasions in late 2017 and 2018.[22] On each occasion he flew to Islamabad and then to Quetta, where he was joined by his wife and children. He agreed that these visits collectively total approximately 14 months since 2012. QJMV said his wife and children travelled to Quetta with the assistance of his brother-in-law. On two of the five occasions QJMV said his family travelled by car from Kabul to Quetta, and on three occasions they flew from Kabul to Kandahar, and then by car to Quetta via the border crossing at Spin Boldak. In order to overcome deficiencies in their travel documents, QJMV said his wife and her brother used connections with the police and paid money to cross the border illegally. When asked whether it was possible to cross the border between Afghanistan and Pakistan without a passport or travel documents, QJMV stated: ‘I haven’t explained that I crossed illegally…my wife explained to me that she paid money to cross the border.’
[22] Exhibit R1, 77.
During his most recent visit to Pakistan in late 2018, QJMV said he was present for the birth of his youngest child. When asked about the risks experienced by his family during travel to Quetta, in circumstances where QJMV fled Afghanistan in part because of fearing harm while travelling on the same roads, QJMV said he and his wife had ‘accepted the risk…she said it doesn’t matter – we just want to see you.’ QJMV said that while living in Pakistan, he and his family stayed in the vicinity of the residence rented by his brother-in-law and ‘didn’t go somewhere else.’
When asked about his offending on Australia Day 2015, QJMV said he travelled to Geelong with a friend. While in a state of drunkenness, he agreed that he touched two young girls on the breast as they passed by. This was on their outer clothing. QJMV said the outing to Geelong was at the recommendation of his friend, who saw that he was sad and depressed about prolonged separation from his family and wanted to cheer him up. QJMV could not recall the name of the drink that caused his intoxication, but said this was the first and only occasion in his life that he had consumed alcohol. He agreed in response to a question from Mr Hughan that ‘it was Jim Beam or something.’ He claimed to have drunk most of the bottle himself, causing him to be ‘totally intoxicated’ and to not know what he was doing. QJMV said he woke up in a cell and after knocking on the door, realised he had been arrested after police entered the room. He claimed to have been totally abstinent from alcohol since.
QJMV expressed remorse for his conduct, stating: ‘I feel very sorry about what happened. I feel remorseful and embarrassed for what I did to the two girls…I have three daughters…I feel shameful…I feel sorry.’ When asked during cross-examination what specifically he had done wrong, QJMV said his actions would have made the girls distressed, which made him feel sad. He agreed that he had initially told police he did not touch the girls, because he could not remember doing so. After his solicitor took him through the reports and statements tendered to the court, he accepted responsibility and pleaded guilty. When asked about a letter from his current solicitor to immigration authorities dated 14 August 2019 stating that QJMV ‘maintains he did not touch the breast of the alleged victims’,[23] QJMV thought he may have said that, because he genuinely had no memory of his conduct and also because his explanations may have been unclear due to language and education issues: ‘I have no education in my language or English.’
[23] Ibid, 76.
During cross-examination, QJMV had trouble recalling the specific circumstances of his offending, including where he had first started drinking, or who drove to Geelong. His evidence was at times inconsistent with police records, which he explained was due to these events occurring five years ago. He thought the alcohol had been purchased by his companion in Geelong, then later in his evidence conceded his drinking may have commenced prior to departure for Geelong, but he could not ‘exactly remember.’ QJMV said he nevertheless pleaded guilty to the charge against him. He said a conviction was not recorded and an 18-month CCO imposed. This required him to ‘show up every two weeks and have an interview,’ during which the law and his reporting obligations were explained. QJMV explained that his initial failure to comply with Sex Offender Registration reporting obligations resulted from two inadvertent mistakes in the first year, because he was still coming to terms with his reporting obligations. He claimed to have reported the purchase of a new car, but not the sale of his old car a few days later. He also did not report one change in employment, given that he worked for multiple employers in his trade. He claimed that when revealing these changes at his annual interview, police told him he should have reported these events at the time they occurred and charged him. He received a small fine and the mistakes he made in the first year of his reporting obligations have never been repeated.
QJMV said he was fully compliant with the conditions of his CCO, including attending counselling with a psychologist, which he found ‘really helpful,’ and which included discussion about how to better deal with continuing separation from his family. He was also required to see a corrections officer and undergo random breath testing, which did not detect any alcohol. QJMV said he had changed residences after his offending, because the people he was living with in early 2015 ‘were not good’ and ‘drinking every weekend.’ His intention was to ‘find better friends.’
When asked why he had not disclosed his offending in the Resident Return Visa (“RRV”) application,[24] QJMV said he did not have the capacity to lodge this application and paid $50 for an employee at the travel agency where he booked his tickets to Pakistan to electronically submit it for him. QJMV said he was unaware of what was submitted. He said the employee, who he named during the hearing and provided a telephone number for, created an online identity to submit the RRV application. QJMV was subsequently advised by the employee that immigration authorities had requested a police clearance certificate, which QJMV provided, and which disclosed his offending. His RRV application was subsequently approved.
[24] Exhibit R2, 1-3.
When asked about the citizenship application he submitted in July 2015, and why the answer to each of the questions in Part F relating to ‘Good character and criminal offences’ were ‘No,’[25] QJMV said a friend helped him complete and submit the form. All he could recall was that he had applied for citizenship five years ago. He claimed not to ‘know much about’ such things because he has ‘no education’ and limited English. He expressed surprise that the answers in Part F were all ‘No.’ In response to questions from the Tribunal, QJMV accepted that forms submitted in his name were his responsibility. When it was put to QJMV that some answers in the RRV and Citizenship applications were false, QJMV responded: ‘Yes I do accept that…the forms…are incorrect.’ During re-examination, Mr Hughan put to QJMV that he had not been formally charged by police until 3 September 2015, which was two months after submitting his citizenship application, but QJMV could not recall because it was ‘long ago.’ He said that ‘three or four weeks’ after his offending and the initial police interview, police asked him to return to the police station, where he was told: ‘you better get yourself a lawyer.’
[25] Exhibit R4, Part F.
When asked about the circumstances of his immigration detention approximately five years after his offending in early 2015, QJMV said that three to five days after his visa was cancelled in February 2020, his solicitor told him to report to immigration authorities which he did. He was immediately taken into immigration detention and had found the experience stressful. It has reinforced his determination to never ‘repeat the same mistake again…I guarantee it won’t happen again.’ If released, QJMV wanted to immediately return to work, improve his English language skills, and ‘be a good person in the community.’ He is financially independent, owns a residential property in Australia,[26] and has an assurance of work from a former employer.
[26] Exhibit R1, 71.
If returned to Afghanistan, QJMV said the situation there was ‘terrible’ and those from a Hazara/Shi’a background were ‘at risk.’
Evidence of QJMV’s former employer
QJMV’s former employer said his letter dated 12 April 2020[27] was true and correct in every respect. He had known QJMV for about seven years, during which they worked together ‘on-and-off’ for up to five days a week. He considered QJMV to be ‘one of the best workers’ in their trade and would ‘have him before anyone else – he puts in the hard yards.’ The witness was aware of QJMV’s offence and that he was intoxicated at the time, which he considered out of character. If QJMV was released, the witness said ‘there’s always a spot for him’ to return to work. He said that despite the current COVID-19 public health emergency, his company was still busy.
[27] Exhibit A2.
Other references
The Tribunal notes the undated reference from four of QJMV’s housemates,[28] a letter from QJMV’s former employer dated 1 July 2019,[29] a letter from a ‘Community Religious Leader’ dated 2 July 2019,[30] and a letter from a tax agent dated 2 July 2019.[31] The authors were not called to give evidence.
PRIMARY CONSIDERATIONS
[28] Exhibit R1, 72.
[29] Ibid, 73.
[30] Ibid.
[31] Ibid, 75.
Protection of the Australian community from criminal or other serious conduct
Clause 9.1 of the Direction states:
(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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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.
Clause 9.1.1(1) sets out factors that decision-makers must have regard to in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Tribunal consideration: The nature and seriousness of the conduct
QJMV concedes that his offending is serious and submissions on his behalf can be summarised as follows:
(a)‘…The Applicant’s serious offending occurred on a single day, at a time that he was significantly affected by alcohol. He had not previously consumed alcohol and subsequently has abstained from any further consumption;’
(b)The offending in 2015 was isolated, out of character, and there has been no further offending during the five years that QJMV has been at liberty in the community;
(c)QJMV was released without conviction and on a CCO, reflecting the Court’s view of the comparative seriousness of the offending; and
(d)QJMV’s travel agent incorrectly completed his application for the RRV, following which QJMV provided a police certificate when requested, and prior to the decision by immigration authorities to grant the RRV. QJMV has correctly filled in his incoming passenger cards on two occasions in 2018, disclosing his offending. In relation to the citizenship application, Mr Hughan submitted that the Tribunal could infer from the chronology that QJMV’s responses about his offending could ‘technically’ be seen as not ‘deliberately false’.
The respondent submitted that QJMV’s actions while intoxicated, constitute a ‘violent and/or sexual crime’ that ‘must be viewed very seriously.’ It was further submitted that this offending caused ‘significant psychological harm to at least one of the children, and likely both of the victims.’ Moreover, QJMV’s two breaches of his reporting obligations are ‘plainly serious as it demonstrates a disregard of judicial orders and authority and undermines the administration of good order in the Australian community.’
Tribunal finding: The nature and seriousness of the conduct
QJMV has not offended in Australia prior to the incident on Australia Day 2015. He subsequently committed two relatively minor breaches of his reporting obligations under the Sex Offender Registration Act2004 (Vic) (“SORA”), in the first year he was subjected to those obligations. The aspects of cl 9.1.1(1) of the Direction relevant to the specific circumstances of this case are:
(a)9.1.1(1)(a)-(b): QJMV’s offending is viewed very seriously, regardless of the sentence imposed;
(b)9.1.1(1)(e): Any conduct triggering a finding that a non-citizen does not pass a subjective limb of the character test is considered serious;
(c)9.1.1(1)(f): QJMV has never been imprisoned and the sentences imposed by the Court (CCO and fine) cannot be regarded as particularly severe; and
(d)9.1.1(1)(i): QJMV is responsible for the responses in his RRV and citizenship applications, some of which were false or misleading.
QJMV’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 9.1.2 of the Direction states in part:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.
(2) In considering the risk 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; and
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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on the Tribunal’s consideration of risk:
…That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [43]), the following passage, at [111], related to what constitutes an unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnotes omitted)
Mr Hughan submitted that QJMV was considered to be a low risk at the time of sentencing and was released on a CCO without conviction. This judgement has been borne out by the absence of any repeat offending in the five years since. Mr Hughan said QJMV surrendered to the Department after his visa was cancelled, which should be seen as reflecting a person who complies with the law. QJMV has remained abstinent from alcohol and obtained psychological counselling while on the CCO. Mr Hughan said that notwithstanding the seriousness of QJMV’s conduct on Australia Day 2015, QJMV constitutes an acceptable risk to the community.
Mr Cunynghame submitted that the nature of the harm if QJMV were to reoffend is serious and could involve physical and psychological harm to members of the Australian community. It was submitted that QJMV’s insight and remorse were unsatisfactory and gave rise to concerns about recidivism. Moreover, the depression and loneliness that contextualised QJMV’s offending resulted in him consuming almost a full bottle of spirits, despite never consuming alcohol before. Continuing separation from his wife and children may elicit a repeat of such conduct. Mr Cunynghame accepted QJMV had attended sessions with a psychologist, however, there is no evidence regarding any ongoing treatment beyond the period mandated by the CCO. Mr Cunynghame conceded that the time QJMV spent in the community weighed in his favour when determining risk, but having regard for all of the circumstances, and applying cl 6.3(4) and 9.1.2 of the Direction, the seriousness of the potential harm caused by a repeat of QJMV’s reoffending is so serious that any risk is unacceptable.
The Tribunal notes that QJMV’s compliance with his CCO was the subject of a report dated 19 April 2017 by Community Correctional Services. That report states in part:
CCO History
[QJMV] has no prior criminal history
Order Engagement
Having been deemed suitable for a Community Correction Order (CCO), [QJMV] commenced his CCO on 04/12/2015.
[QJMV] reported within two working days on 07/12/2015 and was inducted on 14/12/2015. The rules and regulations pertaining to the Order were read and explained to [QJMV] and he indicated his understanding of such by signing all relevant documentation. [QJMV] was provided with a copy for his own record and information.
[QJMV] attended on twenty-four (24) occasions and presented in a polite and reasonable manner.
[QJMV] has openly participated in the Level of Service, Risk, Need Responsivity (LSRNR) assessment, engaging in discussions that explore his Criminal History, Employment / Education, Relationships, Leisure / Recreation, Drug / Alcohol problem and Pro-criminal attitude. The assessment was completed with collateral information made available to this service and identified Employment / Education and Leisure / Recreation as areas of need.
[QJMV] has further engaged in an offence mapping process that identifies key themes throughout his offending. [QJMV] has identified around the time of his offences that he was isolated from his family with feelings of being lonely and depressed.
...
On 14/12/2015, [QJMV] completed his initial interview with Sexual Offences & Child Abuse Investigation Team (SOCIT), indicating his understanding of his reporting obligations under the Sex Offender Registration Act (SORA).
On 23/12/2016, this service was informed by Victoria Police that [QJMV] had failed to comply with his reporting obligations under SORA.
[QJMV] is before the court today for alleged further offences. If found guilty, [QJMV] will be in contravention of his current court order by further offences. [QJMV] has engaged appropriately with this condition of the order.
Treatment and Rehabilitation:
Drug and/or Alcohol treatment
[QJMV] was deemed unsuitable for further treatment via the Australian Community Support Organisation (ACSO).
This condition has been fulfilled.
Testing
[QJMV] has completed random breath tests as per his order condition on 09/08/2016.
[QJMV] showed negative results on this occasion, further denying any alcohol consumption since his offences.
This condition has been fulfilled.
Mental Health
[QJMV] was referred to his General Practitioner (GP)…for the purpose of obtaining a Mental Health Care Plan (MHCP). [QJMV] was deemed suitable for treatment with Psychologist Mr Randolph Monteiro from Purpose Driven Psychology.
[QJMV] has been engaging well and has attended on eleven (11) occasions.
This condition has been fulfilled.
Offending Behaviour Programs
[QJMV] was referred to the Specialised Offender Assessment and Treatment Service (SOATS) to determine the intervention pathways and planning recommendations and his general risk of sexual recidivism. [QJMV] was found to be in the moderate-low risk category and was found unsuitable for a group based treatment with SOATS, on the basis -that his English skills present as a possible barrier to adequate engagement.
It was further recommended that [QJMV] be referred to a private psychologist for individual treatment that addresses his sexual offending.
[QJMV] continues to attend one on one psychotherapy secessions with Mr Randolph Monteiro as outlined above.
This condition has been fulfilled.
Non Compliance Allegations
[QJMV] has incurred no absences from his order conditions since his order commenced.
It is concerning that [QJMV] appears before the court in relation to alleged further offences, which will contravene his order if found guilty.
Conclusion and Recommendation
[QJMV] is a 41-year-old male with no prior criminal history.
Since commencing his order, [QJMV] has complied with his program conditions as required, having been found unsuitable for ongoing alcohol treatment, is currently engaging in psychological treatment and attended an assessment with SOATS as required. He attends on time to appointments and has no absences to date.
Should he be found guilty of the charges currently before the court, this will constitute a contravention of [QJMV’s] order. However, given his positive compliance to date, and as he is currently engaged in psychological treatment, it is respectfully recommended that his order be confirmed.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that:
(a)The nature of harm should QJMV engage in further criminal or other serious conduct is potentially serious and includes psychological harm to children and their families. The Tribunal does not accept the respondent’s submission that a repeat of QJMV’s reoffending could involve ‘physical’ harm;
(b)QJMV has no prior criminal history. He was convicted in 2015 following an isolated incident, which occurred in the context of severe intoxication. There is no evidence QJMV has consumed alcohol or become intoxicated since the incident on 26 January 2015;
(c)QJMV fulfilled the conditions of his CCO, which included open participation in the LSRNR assessment, alcohol counselling, random breath tests (all negative), and engaging with one-on-one psychological counselling. At the time of the SOATS assessment he was found to be in the ‘moderate-low risk category’[32] and was assessed to be a ‘low risk offender’[33] in his CCO Assessment;
(d)QJMV lived in the community for approximately five years without any further offending or alcohol-fuelled misconduct (notwithstanding the reporting breaches discussed below). That is despite continuing separation from his family. The Tribunal accepts he has abstained from alcohol and changed his previous living arrangements to separate himself from negative peers;
(e)The Tribunal accepts QJMV’s two breaches of reporting obligations (failure to report the sale of a car after buying a new one, and a single change in employment), arose from isolated mistakes in the first year of his SORA obligations. The Tribunal accepts QJMV self-reported these breaches at his annual interview and subsequently took steps to ensure there was no repeat. His plea of guilty, payment of a small fine, and absence of any further breaches demonstrates insight and a determination not to repeat such conduct;
(f)QJMV is financially independent, has stable accommodation, and good prospects of employment. He has owned a home in Australia since 2017, has applied for citizenship, and aspires to bring his wife and children to Australia in the future. These act as protective factors mitigating his risk of reoffending; and
(g)While the Tribunal has some concerns about QJMV initially denying his objectionable conduct during a police interview, and in the 2019 letter from his solicitor, it is clear he has very limited education and English skills. The fact is he pleaded guilty to his objectionable conduct at trial. The Tribunal found his explanations and expressions of remorse persuasive.
[32] Exhibit R1, 69.
[33] Exhibit R2, 161.
Although QJMV’s conduct on 26 January 2015 is objectively serious, he has demonstrated an ability to remain law-abiding in the five years since. Coupled with the isolated and uncharacteristic nature of his offending, the likelihood of recidivism is considered low and I find that QJMV does not constitute an unacceptable risk to the community. On balance, although the primary consideration ‘Protection of the Australian community from criminal or other serious conduct’ still weighs in favour of visa cancellation, it does so only slightly.
Tribunal consideration: Best interests of minor children in Australia
Clause 9.2 of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. This consideration applies only if the child is, or would be, under 18 years old at the time when the visa cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. 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.
In the Personal Circumstances (PCF) form he signed on 9 July 2019, QJMV refers to his four biological children, who are all under the age of 18 and live with his wife in Afghanistan.[34] QJMV’s legal representative submitted on 21 July 2019 that: ‘Our client does not have any minor children in Australia…’[35]
[34] Ibid, 36.
[35] Ibid, 51.
QJMV’s solicitor has previously referred in written submissions to QJMV’s ‘mother’s sister and her two sons and a daughter’ who live in Australia.[36] No statements were lodged from those relatives and they were not called as witnesses. The Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) notes that this primary consideration ‘is not relevant.’[37]
[36] Ibid, 65-66.
[37] ASFIC [76].
Tribunal findings: Best interests of minor children in Australia
The Tribunal finds there are no minor children in Australia who would be affected by a decision in this matter. This primary consideration is not enlivened and the Tribunal gives it no weight.
Tribunal consideration: Expectations of the Australian community
Clause 9.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of the previous Direction 65 (Part B) relating to visa refusal, the clause is in identical wording as cl 9.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[38] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[39] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
[38] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[39] FYBR at [104] per Stewart J.
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine.’[40] The Direction helps inform the weight a decision-maker attributes to this primary consideration. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations,’ which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[41]
[40] FYBR at [75]-[76] per Charlesworth J.
[41] FYBR at [76] per Charlesworth J.
The Tribunal notes the High Court has recently handed down a decision in respect of an application for special leave to appeal against FYBR.[42] In refusing the application, the High Court held at [301]-[303], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
[42] FYBR v Minister for Home Affairs [2020] HCA 056.
It was submitted on QJMV’s behalf that:
‘Our client instructs that he is committed to obeying the laws in Australia. Our client arrived in Australia in 2010, except for the incident…he has not committed any other offences. Rather, our client has been committed to positively contributing to the Australian Community. He works on a full-time basis, pays his taxes and undertakes volunteer work to assist his wider community. Our client has worked hard to save for and purchase a residential property in Australia. Enclosed character references from his housemates, employer and community group suggest that our client is of good character. As outlined above, our client’s offending was isolated and considered to be of a low level given the penalty imposed. Our client adhered strictly to the conditions of his CCO. He instructs that the charges with respect to his failure to report, stemmed from a misunderstanding, the court’s finding with respect to same suggests that the Court did not find the reporting breaches to be of a high level. Since 2017, our client has strictly adhered to his reporting obligations. Further, we note that he adhered to his reporting obligations pursuant to the CCO.
With respect, we submit that the offences committed should not define our client’s character. Taking into consideration our client’s remorsefulness and desire to positively contribute to the Australian Community, we that the Australian Community would not except our client not to be able to remain in Australia. Thus, we submit that this consideration weighs in favour of our client’s visa not being cancelled.’[43]
[43] Exhibit R1, 51.
Mr Hughan submitted that when regard is had for the isolated and uncharacteristic nature of QJMV’s offending, his rehabilitation, contribution in Australia, and dangers if returned to Afghanistan, the community would not consider cancellation of his visa appropriate.
Mr Cunynghame said that submissions seeking to determine the expectations of the Australian community by reference to the applicant’s circumstances, was not the correct approach. He submitted that the circumstances of this case were such that the expectations of the Australian community weighed ‘heavily in favour of cancellation’ and the ‘visa should remain cancelled.’
Tribunal findings: Expectations of the Australian community
In circumstances where QJMV was convicted of sexual offending against a child, the deemed community expectation is that his visa should remain cancelled. In relation to weight, however, the specific circumstances of this case are such that this primary consideration only weighs slightly in favour of cancellation. That judgement encompasses the isolated nature and contextual circumstances of his offending, which cannot be regarded as particularly egregious. Moreover, there has been no repeat offending in the last five years, during which QJMV has been at liberty in the community. There are also the previously-mentioned protective factors mitigating his risk of recidivism.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
The Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[44] It is not disputed that QJMV was previously found to be a person to whom Australia owes protection obligations under the Refugees Convention, resulting in him being granted a Protection visa in 2011. It is not contested that QJMV can apply for a Protection visa.
[44] Direction, cl 10.1(1).
The Tribunal is required to assess, on the available evidence, any type of harm that might arise to QJMV should he be returned to Afghanistan. This is regardless of whether the risk of harm he raises is framed as a non-refoulement issue. Mr Hughan submitted that the Tribunal recently decided in PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“PDWL”)[45] that the Department could not lawfully refuse a protection visa application under s 501(1) of the Act, because it was necessary for the Department to find that ‘a person must be considered to be a danger to the Australian community (in addition to having been convicted of a particularly serious crime, as defined) before a protection visa may be refused ….’[46] Mr Hughan said this conclusion was the consequence of the Federal Court’s decision in BAL19 v Minister for Home Affairs (“BAL19”),[47] and such a finding could not be logically or rationally made against QJMV.
[45] [2020] AATA 485.
[46] Ibid, [11].
[47] [2019] FCA 2189.
QJMV’s principal concerns about a return to Afghanistan can be summarised as follows:
(a)He has been threatened, beaten, kidnapped, tortured and shot at by the Taliban. His brother has been killed by a bomb blast at the shop they both used to work at;
(b)QJMV remains at risk of significant harm if returned, because he is of Hazara ethnicity, a Shi’a Muslim, believed to be affiliated with the Afghan Government and would be returning after 10 years in the West; and
(c)If the decision under review is affirmed, QJMV may not be able to be returned to Afghanistan, but instead faces indefinite detention.
Accordingly, the Tribunal should make an assessment of the international non-refoulement obligations in this case and conclude they apply in favour of QJMV and weigh heavily in favour of not cancelling his visa.
Mr Cunynghame submitted that:
(a)The obligation to consider non-refoulement does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed;[48]
(b)Having regard for the judgment in Omar v Minister for Home Affairs [2019] FCA 219 (“Omar”), to the extent that the Tribunal is required to consider and weigh QJMV’s claimed fear of harm as part of its consideration of the factors for or against cancellation, the Minister contends that it remains highly relevant to the Tribunal’s weighing exercise that under s 501E(2) of the Act, QJMV is able to make an application for a Protection visa and to have his claims assessed and tested. This is because QJMV was previously granted a Protection visa (as opposed to it being cancelled or subject to a refusal over an application for a Protection visa) and as such the s 48A bar does not apply to the applicant;
(c)Noting the existence of Direction 75, which requires delegates to assess an applicant’s protection claims prior to the ineligibility criteria or refusal under s 501 of the Act, if the Tribunal affirms the delegate’s decision to cancel the visa, QJMV would have the opportunity to ventilate any claim of harm through a protection visa. Nevertheless, given the tension in the current case law, the Minister submits that the Tribunal should proceed on the basis of the Full Court’s reasoning in DOB18 v Minister for Home Affairs [2018] FCA 1523 and Omar, and consider and make findings on QJMV’s representations to fear harm;
(d)The Minister contends that while Exhibit A3 suggests a risk of harm to Hazara Shi’a people cannot be ruled out entirely, it does not support a finding that a person in QJMV’s circumstances faces a real chance of serious harm or a real risk of significant harm;[49]
(e)Any weight that the Tribunal attributes to QJMV’s claimed fear of harm in Afghanistan, in the circumstances of this case, does not outweigh the primary considerations of the protection and expectations of the Australian community;
(f)In relation to QJMV’s contention regarding the implications of BAL19, in the context of a Protection visa application, Mr Cunynghame submitted it is not the task of the Tribunal to consider whether the Department should or should not find that an applicant has been convicted of a particularly serious crime. That is a matter for the Department once, and assuming, QJMV applies for a Protection visa. The Tribunal is not tasked with making such a finding under s 65 of the Act. Moreover, Mr Cunynghame submitted that the Minister considers PDWL was wrongly decided, has lodged an appeal in the Federal Court, and it should not be followed. In any event, he submitted that PDWL is distinguishable in circumstances where those proceedings concerned an application for review of a decision to refuse a protection visa, and in circumstances where there was evidence before the Tribunal in that matter that the delegate found that the applicant was not considered to be a danger to the Australian community (see s 36(1C)(a) of the Act), and that the applicant has otherwise satisfied all criteria for the visa aside from the ‘character test’ criterion;[50]
(g)BAL19 is not binding on the Tribunal in these proceedings in the sense that the review proceedings concern a decision of a delegate to cancel the applicant’s Resident Return visa (as opposed to a Protection visa). The Minister considers the decision in BAL19 was wrongly decided and has lodged an appeal of that decision to the Full Federal Court on 14 January 2020; and
(h)It is possible that QJMV would be subject to immigration detention until it is reasonably practicable to remove him (which might be subject to consideration of an application for a protection visa) or until the Minister considers alternative management options. The Tribunal should take into account this possibility as a potential legal consequence of its decision. However, consideration of the possibilities that face the applicant if the cancellation is not revoked does not outweigh the protection of the Australian community and the expectations of the Australian community.
[48] Citing: Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28] and [34]; Greene v Assistant Minister for Home Affairs [2018] FCA 919; Turay v Assistant Minister for Home Affairs [2018] FCA 1487; DOB18 v Minister for Home Affairs [2018] FCA 1523 (“DOB18”); and BKS18 v Minister for Home Affairs [2018] FCA 1731).
[49] The Tribunal was also referred to FBW18 v Minister for Home Affairs [2019] FCA 1878 and Ali v Minister for Home Affairs [2019] FCA 1900. Cf DGI19 v Minister for Home Affairs [2019] FCA 1867.
[50] PDWL at [8].
Tribunal findings: International non-refoulement obligations
In 2011 QJMV satisfied the requirements to be owed protection obligations. While the Tribunal has some doubts, almost a decade after QJMV left Afghanistan, as to why he would continue to be of interest to the Taliban, or fear harm as a result of his relatively unexceptional role as a bus driver, it cannot be said that the risk in this regard is insignificant.[51] The risk in respect of his Hazara/Shi’a origins is more persuasive. That judgement encompasses the Tribunal’s consideration of QJMV’s oral evidence and Exhibits A3, A4 and A5 in particular.[52] Additionally, QJMV’s unchallenged evidence about the extent he has gone to since 2012 to see his wife and children in Pakistan, and the risks the family have accepted to spend time together, came across as genuine, heartfelt and indicative of the continuing fear QJMV holds about returning to Afghanistan.
[51] See, for example, Exhibit A3, [2.54]; [2.73]-[2.74]; [3.42]-[3.46].
[52] See, for example, Exhibit A3, [2.73]-[2.74]; [3.7]-[3.16]; [3.29]-[3.35]; and Exhibit A5, 93-94.
The consequence of QJMV’s application being unsuccessful is liability for removal as soon as practicable, or in the meantime, detention. The possibility of prolonged detention raises the prospect of adverse impacts on QJMV’s mental health. That is particularly so in circumstances where his ability to support his wife and children, who remain in a country with a precarious security and economic situation, would be significantly compromised. There is no evidence before the Tribunal to support the submission that any discretionary Ministerial ‘alternative management options’ are being considered.
The Tribunal finds that Australia’s International non-refoulement obligations weigh at least moderately against the cancellation of QJMV’s visa application.
Tribunal consideration: Strength, nature and duration of ties
Clause 10.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In his PCF dated 9 July 2019, QJMV refers to one aunt/uncle and three cousins living in Australia.[53] QJMV’s legal representative referred in written submissions to ‘his mother’s sister and her two sons and a daughter’ living in Australia.[54] No statements were lodged from those relatives and they were not called as witnesses.
[53] Exhibit R1, 40.
[54] Ibid, 65-66.
The Tribunal notes in evidence:
(a)A statement[55] and oral testimony from a longstanding past employer of QJMV as discussed earlier;
[55] Exhibit A2.
(b)An undated letter collectively signed by four people who claim to have shared a home with QJMV during the last four years.[56] The authors were not called as witnesses. Their letter states:
[56] Exhibit R1, 72.
‘Honestly, we are writing to your office regarding [QJMVs] personality, we are living with [QJMV] for two years in one home…[QJMV] has a great personality and nice behaviour with everyone in house, since we start living with [QJMV], he didn't delay the bills payment and rent, in the past two years we have not seen him to drink alcohol and smoke in the home, we are honest with this information, that [QJMV] has a good character and nice behaviour at all.’
(c)A letter from QJMV’s former employer stating that QJMV held an ‘operational position,’ organised ‘material and work–force for large scale construction projects and attending toolbox meeting for safety procedure during onsite works,’ and earned ‘$1825.00 per week working 6 days a week and 8.5 hours a day’;[57]
(d)A letter from a person claiming to be a ‘Community Religious Leader’ under the seal of the Hazara Australian Community Association. The author stated he had known QJMV for more than two years and considered him:
‘an honest person with good behaviour in the community…is one of our active members…he attending and supporting community events and social activities…I belief he becoming a good citizen for Australia.’[58]
(e)A letter from a person claiming to be QJMV’s tax agent that states: ‘based on our records, [QJMV] has worked on ABN and has no debt or tax obligations with Australian Taxation Office’;[59] and
(f)A Rate and Valuation Notice dated June 2017,[60] to the effect that QJMV owns a property in the Melbourne suburbs that he rents out in anticipation of his family one day joining him in Australia.
[57] Ibid, 73.
[58] Ibid, 74.
[59] Ibid, 75.
[60] Ibid, 71.
Mr Hughan submits that QJMV has strong and close ties to the Australian community, having lived here for almost ten years, worked full time, and formed close and enduring friendships. He has made a positive contribution by working and undertaking volunteer work, which weighs in his favour.
Mr Cunynghame conceded that QJMV’s employment in Australia has been stable and he has been involved with ethnic community associations. QJMV’s claimed family ties in Australia were not challenged during the hearing and it is clear that he has developed some social ties. Mr Cunynghame accepted that some emotional impact on QJMV’s family and friends in Australia can be accepted, but there is minimal detail about the nature of any adverse impact. Further, there is no apparent reason why QJMV’s family and friends in Australia cannot maintain contact with him through by digital means or visits. While conceding that this factor weighs in QJMV’s favour, Mr Cunynghame submitted it does not outweigh the primary considerations of the protection and expectations of the Australian community.
Tribunal findings: Strength, nature and duration of ties
QJMV has lived in Australia for approximately a decade, having arrived here in his mid-30’s. The Tribunal accepts he purchased a home in 2017 and has worked hard to build a better life for himself and his family in Australia. The Tribunal also accepts he is a highly-regarded employee who has been in consistent work and has paid income taxes. More weight is placed on this consideration given QJMV’s positive contribution through work and active community involvement.
The letters from QJMV’s housemates and the ethnic community leader are general in nature and do not refer to his offending. The Tribunal places limited weight on these letters absent the opportunity to test the evidence through cross-examination.
In circumstances where there is no corroborating evidence from QJMV’s maternal aunt and her children about QJMV’s claim that he spends time with them ‘on a regular basis,’[61] no weight is placed on this.
[61] Ibid, 65.
The Tribunal accepts there are Australian citizens or permanent residents who would be saddened by a decision to cancel QJMV’s visa. On balance this consideration weighs moderately against exercising the discretion to cancel QJMV’s visa.
Impact on Australian business interests
Clause 10.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
It was submitted by QJMV’s legal representative in the context of responding to the visa cancellation notice, that this consideration was enlivened because:
‘Our client has been employed at [business name redacted] for three years. His employer has outlined within their reference letter that our client has an operational position that requires him to organise material and workers for large scale construction projects. With respect, we submit that given the ongoing nature of our client’s employment…, the business would be adversely affected if our client was unable to continue to work with them.’[62]
[62] Ibid, 66.
Although it was stated in the ASFIC that this consideration ‘is not relevant,’ the Tribunal has noted the evidence of QJMV’s previous employers. The Tribunal concludes there is an insufficient basis to find that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The evidence does not displace the presumption in the Direction and this consideration is given no weight.
Impact on victims
Clause 10.4(1), of the Direction states:
Impact of a decision not to cancel a visa 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 that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.
There is no evidence from victims or the family members of victims about the impact of a decision in this matter. This consideration is given no weight.
Tribunal consideration: Extent of impediments if removed
Clause 10.5(1) of the Direction states that:
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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
Mr Hughan submitted that as a Hazara and Shi’a Muslim, returning after ten years in the West, QJMV would face significant discrimination and difficulty if repatriated.
Mr Cunynghame submitted that QJMV is relatively young, has disclosed no medical or psychological conditions, and there are no substantial language or cultural barriers to overcome, given he resided in Afghanistan throughout his childhood and most of his adulthood. Further, QJMV would have the support of his family members in Afghanistan, including his wife, children, siblings and other extended family members. While conceding QJMV ‘would face some hardship on return,’ Mr Cunynghame contended such hardship ‘is not insurmountable and does not outweigh the primary considerations of protection and expectation of the Australian community.’
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)QJMV is 44 years of age and there is no evidence he has been diagnosed with any physical or psychological conditions;
(b)QJMV grew up in Afghanistan and arrived in Australia in his mid-30s. There is no language impediment to repatriation. Moreover, his wife, four children, four siblings and other relatives reside in Afghanistan, who may provide him with practical and emotional support if repatriated;
(c)There are potential cultural impediments arising from QJMV’s prolonged residence in Australia, however, the skills and knowledge gained by QJMV in Australia may be of assistance to him if repatriated; and
(d)QJMV status as a Hazara / Shi’a returnee from ‘the west’ and the comparably riskier environment for civilian populations in Afghanistan, including for returnees to Kabul, is a significant impediment.[63]
[63] See, for example, Exhibit A4, 2 [1.1]; 22-23; Exhibit A5, 36-37.
On balance, this consideration weighs moderately in favour of not exercising the discretion to cancel QJMV’s visa.
Other Considerations
No additional considerations were advanced, nor has the Tribunal identified any additional ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 10(1) of the Direction.
CONCLUSION
QJMV does not pass the character test. In determining whether the discretion in s 501(2) of the Act to cancel his visa should be exercised, the primary and other considerations at Part A of the Direction have been applied to the specific circumstances of his case.
While QJMV’s offending is objectively serious, he was previously law-abiding and, with the exception of two inadvertent breaches of his SORA obligations, has been law-abiding since. QJMV pleaded guilty at the earliest opportunity, is genuinely remorseful, and has made a positive contribution to the community in the last five years. The Tribunal considers that the significant consequences following his offending have provided a salutary lesson. QJMV demonstrates a persuasive commitment to never repeat his conduct on 26 January 2015. He is financially independent, has stable accommodation, and employment in his trade waiting for him upon release. The evidence supports a reliable conclusion that QJMV does not constitute an unacceptable risk of recidivism.
Given the nature of his offending, the deemed community expectation is that QJMV’s visa should remain cancelled, but the specific circumstances of this case reduce the weight that might otherwise be applied. QJMV has worked hard to make a better life in Australia. His strongest family ties are clearly in Afghanistan, where he cannot currently return. He has also developed strong links in Australia through work and ethnic community involvement. After a decade in Australia there would be considerable disruption to his life if his application was refused, including a likely extended period of detention.
Having weighed all of the considerations individually and cumulatively, the Tribunal finds the discretion should not be exercised to cancel QJMV’s visa. That is because the other considerations of ‘International non-refoulement obligations,’ ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ each weigh moderately against cancellation. These outweigh the two relevant primary considerations of ‘Protection of the Australian community,’ and ‘Expectations of the Australian community,’ both of which weigh slightly in favour of visa cancellation.
DECISION
It follows that the Tribunal sets aside the reviewable decision and substitutes a decision that the discretion under s 501(2) of the Act to cancel QJMV’s visa is not exercised.
I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
……[sgd]…………………………….
AssociateDated: 7 May 2020
Date of hearing: 28 and 29 April 2020 Counsel for the Applicant: Mr Greg Hughan Solicitors for the Applicant: AUM Lawyers Advocate for the Respondent: Mr Adam Cunynghame Solicitors for the Respondent: Sparke Helmore Lawyers
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