RCLN and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 418
•17 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1143
GENERAL ADMINISTRATIVE DIVISION ) Re RCLN Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal J L Redfern, Senior Member Date17 June 2011
PlaceSydney
Decision The decision under review is set aside and in substitution it is decided that the discretion in section 501(2) of the Migration Act 1958 should be exercised in the Applicant’s favour so that his visa is not cancelled. ....................[sgd]......................
J L Redfern
Senior Member
CATCHWORDS
IMMIGRATION – visa cancellation – character test – Direction 41 – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – length of time ordinarily resident in Australia prior to engaging in criminal activity – international obligations – best interests of the child – International Covenant on Civil and Political Rights – Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment –discretion of the Tribunal fettered – other considerations – family ties, the nature and extent of any relationships – hardship likely to be experienced by the person or their immediate family members – previous warnings about cancellation – when oral evidence not served in a prior written statement is allowed – decision under review set aside.
RELEVANT ACT
Migration Act 1958 (Cth): s 499, s 500(6H), s 501, s 501A, s 501B
CITATIONS
1007836 [2010] RRTA 1157
AB v Minister for Immigration and Citizenship (2007) 96 ALD 53
Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667
Bustescu and Minister for Immigration and Multicultural Affairs [2000] AATA 819
Chan v Minister for Immigration (1989) 169 CLR 379
Rosson v Minister for Immigration and Citizenship [2011] FCA 194
SAAC and Minister for Immigration and Multicultural Indigenous Affairs (2004) 85 ALD 202
Tuitaalili and Minister for Immigration and Citizenship [2011] AATA 144
OTHER AUTHORITIES
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Articles 1 and 3
Direction [no. 41] - Visa Refusal and Cancellation under section 501
International Covenant on Civil and Political Rights: Articles 6 and 7
REASONS FOR DECISION
17 June 2011 J L Redfern, Senior Member 1. RCLN was born in Iran in 1972. He is a citizen of Iran and moved to Australia from Portugal in October 1990 at the age of 18. RCLN was initially granted student visas and on 13 December 1996 he was granted a Transitional (Permanent) visa. RCLN has lived continuously in Australia since October 1990.
2. RCLN has a history of convictions in Australia, primarily for drug related and driving offences, starting from about October 1996. He has also been convicted of assault related to domestic violence and firearms offences. On 17 November 2008, RCLN was convicted in the District Court of New South Wales for possession of an unregistered firearm, supply of a prohibited drug, possession of drugs and possession of goods suspected of being stolen. He was on parole at the time of the offences. RCLN was sentenced to imprisonment of four years and nine months, with a non-parole period of two and a half years. The Court directed that RCLN be released to parole on 13 January 2011 to a full time residential rehabilitation program. RCLN commenced the Odyssey House rehabilitation program on his release from prison but was taken into immigration detention after his visa was cancelled.
3. Where a person does not satisfy the “character test” as set out in the Migration Act 1958 (the Act), the Minister has discretion to cancel their visa. It is common ground that RCLN does not satisfy the character test because of his criminal history. On 18 March 2011, a delegate of the Minister cancelled RCLN’s visa. The cancellation followed two previous warnings given to RCLN in 2006 and 2008. RCLN has applied for a review of the decision.
ISSUES FOR DETERMINATION
4. In the present case, the Minister contends the Tribunal should affirm the decision of the delegate as the primary consideration of the protection of the Australian community weighs strongly in favour of cancelling RCLN’s visa.
5. RCLN agrees his criminal history is serious but says he is committed to rehabilitation. Furthermore, it was submitted that other considerations, such as the best interests of his children, the interests of his partner and the prospect he may face persecution and punishment if he returns to Iran, weigh against cancellation.
6. The issue for determination is how the discretion under the Act should be exercised in the circumstances of this case.
7. A further issue that arises is whether, on the facts of this case and having regard to the available information about Iran, the cancellation of RCLN’s visa breaches Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR) and/or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
8. It is not in dispute that there are authoritative reports about human rights abuses in Iran, especially since 2009. It is also not in dispute that apostasy of Islam (and conversion to another religion such as Christianity) is illegal under Iranian law.
9. RCLN contends that, given the prohibition against refoulement under the ICCPR and the CAT is absolute, the Tribunal must set aside the decision.
10. The Minister contends there is no breach but in any event the Minister, and therefore the Tribunal, has an unfettered discretion. The Tribunal may have regard to these matters but is not bound to set the decision aside under Direction 41.
11. As such the issues for determination were:
(a)Would the decision to cancel RCLN’s visa breach Australia’s international obligations under the ICCPR and/or CAT?
(b)If so, is the Tribunal bound to set aside the decision or is this still a matter where the Tribunal has discretion?
(c)If there is discretion, how should the discretion be exercised?
12. A preliminary issue was raised during the hearing about whether the Tribunal should have regard to oral evidence of RCLN’s eldest son when no statement was provided by him prior to the hearing.
LEGISLATIVE AND POLICY FRAMEWORK
13. Section 501(2) of the Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”.
14. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in s 501(7) as, among other things, having been: “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)) or “sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more” (s 501(7)(d)).
15. Section 499(1) of the Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers but the directions cannot be inconsistent with the Act or the regulations (s 499(1A)). The Tribunal must comply with the written direction (s 499(2)).
16. The Minister has delegated the exercise of the discretion under s 501(2) and has issued a written direction under s 499(1) of the Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. The direction commenced on 15 June 2009 and is known as Direction [No. 41] - Visa Refusal and cancellation under section 501 of the Act (Direction No 41).
17. Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker, and this Tribunal, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
18. The primary considerations in Direction No 41 are set out in paragraph 10(1):
10 The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
19. Direction No 41 provides guidance on the range of factors which must be taken into account when assessing the primary considerations. Paragraph 11 of Direction 41 identifies a number of other considerations that must be taken into account if relevant, but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the primary considerations.
20. Section 500(1) of the Act provides for applications to be made to the Tribunal for the review of decisions, such as a decision to cancel a visa made under s 501(2). Relevantly, s 500(6H) provides that:
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
21. This provision is relevant to this case because RCLN argued that the Tribunal should allow oral evidence from his teenage son even though the Minister was not served with a statement from his son before the hearing.
HOW SHOULD THE DISCRETION BE EXERCISED?
22. All of the primary considerations that appear at paragraph 10 of Direction No 41 must be taken into account when exercising the discretion under s 501(2) of the Act. There are three primary considerations that are relevant to RCLN and they are sub-paragraphs (1) (a), (c) and (d).
23. It is common ground that the other primary consideration is not relevant to RCLN.
24. There are also a number of other considerations which are relevant to RCLN that should be taken into account but “generally” they should be given less weight than the primary considerations. Other considerations relevant to RCLN’s case include: family ties; the nature and extent of any relationships; any links to the country to which the person would be removed; hardship likely to be experienced by the person and any previous warnings.
BACKGROUND FACTS
25. RCLN was born in Iran in 1972 and is the eldest of five children of a Sunni Muslim family. He had difficulties at school and from the age of 12 got into fights and was suspended. He was arrested when he was about 12 or 13 years old for protesting and when he was 14 his father took him to Portugal to live with his aunt to escape conscription. RCLN’s father returned to Iran and RCLN continued to live with his aunt until his father arranged for him to move to Australia when he was 18 years old. His parents visited him a few times when he was living in Portugal and his father has visited him a few times since he has lived in Australia.
26. RCLN lived with family friends for about 5 or 6 months but then moved out and rented a room in the house of an Australian family. He learned English and completed his School Certificate then studied his Higher School Certificate at TAFE. He worked casually to support himself but also received financial assistance from his parents. He completed year 11 but did not complete year 12 or an IT course that he enrolled in after year 11 because he missed his family and found it difficult to work and study. By this stage, he had met his former wife, SD, and they married in July 1993. RCLN was 21 years old. He held down various casual jobs and tried unsuccessfully to start his own business. It is common ground that RCLN has had long periods of unemployment from the age of about 27.
27. The marriage was not successful and RCLN admits he was a “bad husband”. In 1994, while they were still living together, RCLN was charged with assault and breach of a domestic violence order in respect of SD. Their son, RR, was born in March 1995 but RCLN and SD separated in about 1996 and were divorced in about 1999. Their relationship was volatile and both took illicit drugs. RCLN was convicted of further assault and breach of domestic violence orders in October 1996 and was again convicted of assault in June 1997 after an altercation with SD when he went to collect his belongings. He was not sentenced to any time in prison in respect of these convictions but was fined and/or placed on good behaviour bonds.
28. In February 2000 RCLN was convicted of possessing a prohibited drug, possessing an unregistered firearm, driving whilst unlicensed, using an unregistered vehicle on the road, assault and breach of a domestic violence order. While the information provided in relation to these charges is not sufficiently detailed to give an account of what happened, there is some evidence that these convictions arose out of an altercation with SD and her new partner. RCLN was disqualified from driving for 10 years, was given a 6 months suspended sentence and was ordered to undertake 100 hours of community service.
29. In 2001 RCLN was the victim of a home invasion and was badly injured. He was hospitalised for about a month.
30. In February 2001, RCLN was convicted of driving whilst disqualified. He was disqualified for a further two years and was sentenced to 16 months periodic detention. This order was revoked when he was again convicted of driving whilst disqualified and in August 2001 this sentence was converted to 13 months and 6 days in prison. He was also convicted of supplying a prohibited drug and breaching a community service order and on 28 February 2002 RCLN was sentenced to 20 months imprisonment, with a 15 month non-parole period for the drug offence, and 2 and 8 month concurrent sentences for the other convictions, back dated to August 2001. The net result was a period of imprisonment of 15 months. RCLN was released on 22 November 2002. In sentencing RCLN, the Magistrate referred to his “terrible traffic record” and the seriousness of the drug offence but took account of the fact that RCLN voluntarily submitted himself to the police and admitted his guilt, discounting his sentence accordingly.
31. There is no direct evidence of this but it appears a notice was issued by the Department of Immigration and Multicultural Affairs (DIMIA) in July 2002 notifying RCLN of an intention to cancel RCLN’s visa as there is evidence of RCLN’s response to the notice dated 28 July and 16 September 2002. His visa was not cancelled at this time.
32. RCLN met his current partner, JH, in early 2003. They have been together since this time, although they were separated by RCLN’s frequent and lengthy prison sentences and a brief period, while RCLN was in prison, where JH had an unsuccessful and abusive relationship with another man. RCLN’s and JH’s son, BR, was born in February 2006 and another child, TH, was born in April 2009 as a result of JH’s reportedly abusive relationship while RCLN was still in prison.
33. RCLN was sentenced to just over two months prison for being in possession of suspected stolen goods in December 2003 but apart from this incident, which occurred in June 2003, there was a period of relative stability and RCLN did not come to the attention of authorities until January 2005, when he was charged with driving whilst disqualified. He was declared an habitual offender, disqualified until 2032 and sentenced to 2 years imprisonment (18 months non-parole) but suspended on RCLN entering into a good behaviour bond. RCLN was again charged with driving offences in June 2005 and was taken into custody in July 2005. In March 2006 RCLN was resentenced for breach of the good behaviour bond and was sentenced for possessing drugs. He was released from prison on 6 December 2006.
34. RCLN was served with another notice of intention to cancel his visa by DIMIA in July 2006. His visa was not cancelled but he was provided with a written warning that any further convictions would result in his visa being reconsidered for cancellation. RCLN signed an acknowledgement of the warning on 5 December 2006.
35. In March 2007, RCLN was convicted for driving whilst disqualified, possessing drugs, driving while holding a mobile telephone and driving with an infant without a restraint. The infant was his son, BR, who was about 13 months old. RCLN was sentenced to 12 months in prison and was released in March 2008. In January 2008 RCLN was served with a notice of intention to cancel his visa. His visa was not cancelled but he was provided with a second warning and on 12 March 2008 he signed an acknowledgement. Within 3 months of the warning, RCLN was arrested and charged with further offences. He was sentenced on 17 November 2008 by Judge Ellis of the District Court of New South Wales to imprisonment of four years and nine months, with a non-parole period of two and a half years. The offences included possession of an unregistered firearm and supply of a prohibited drug, albeit not of a commercial quantity.
36. In sentencing RCLN, Judge Ellis observed as follows:
The community’s attitude toward both the supply of drugs and use of firearms has hardened significantly over the last decade, and as a result the penalties have increased substantially, especially in relation to the use of illegal firearms such as this.
These are serious criminal offences. They are aggravated by the fact that the offender was on parole at the time of the commission of the offences, that he has a history of not dissimilar offences in terms of a supply count and that prior history is relevant in a “Veen” sense, that is, it is relevant to the Court’s assessment of his prospects of rehabilitation and his need for personal deterrence.
37.He also noted:
It is clear that he has an entrenched substance dependence and severe life management skills deficiencies, no doubt brought about by his problematic upbringing, that is, being forced to live in Iran during his early years while it was at war, then being forced to leave at age fourteen to avoid being conscripted, moving to Portugal and as a result starting life a fresh, learning a new language and finding new friends. Then at age nineteen, the offender was encouraged to come to Australia by his father resulting in further social dislocation as he endeavoured alone, albeit living with some family friends, to establish himself in Australia.
He has made a number of attempts to establish his life here and continue with education in this country. He was able to obtain a Higher School Certificate and learn the language, and despite the difficulties that he found in that, he is now multilingual. He has endeavoured to complete TAFE courses, tried to start some businesses. He has a failed relationship and also a number of underlying mental health issues, all of which have contributed to his subsequent demise into drug use. Once he became addicted he was on that all too familiar slippery slope. He has indicated in his evidence that he hit the wall on this occasion and it has finally dawned on him that he does have a serious drug addiction that he needs to deal with and that unless he does deal with it, the rest of his life will continue to go down the same slippery pole.
He seems genuine in his attempts but only time will tell how successful he is. He is not eligible for the compulsory drug treatment in gaol on the basis that the conviction which is about to result from the first offence, involved a firearm. There is no doubt that he does need a long period of supervision.
38.Judge Ellis commented on the seriousness of the offences and mitigating factors as follows:
The court notes that in terms of aggravating factors, as indicated, he was on parole and has a prior criminal history that is relevant in the “Veen” sense. In terms of planning, the offence was a planned or organised criminal activity, the gun being in his possession for the purpose of safeguarding his criminal enterprise as a supplier. However, the planning, in the Court’s view, was generic to both these offences and as such would not warrant an aggravation of the penalty over and above that which would otherwise apply.
In terms of mitigating factors the offender does have prospects of rehabilitation but this Court would need to be prescient to determine exactly what those prospects are. He has shown remorse, demonstrated by both his plea of guilty, for which he is entitled to a full utilitarian discount, and also by his assistance to authorities, given that he made full and frank admissions over and above what one might have expected.
39. RCLN has spent approximately 6 years in prison and since July 2005 has only spent 4 ½ months in the community, excluding the time he spent at Odyssey House and in immigration detention.
40. It is not disputed that RCLN has committed a number of his offences while on probation or good behaviour bonds and has breached domestic violence and community service orders. While in detention RCLN has also breached prison rules, although it should be noted that most were not serious, and there were only two breaches during his most recent period of incarceration, namely failure of a urine test and entering another cell. These breaches were in June and July 2008.
PRELIMINARY EVIDENTIARY ISSUES
41. RCLN sought to call oral evidence from his eldest son, RR. A statement was not provided by RR but a statement from RCLN’s lawyer, detailing a conversation with RR, was served at least 2 business days before the hearing. The Minister objected to RR being allowed to give oral evidence on the basis that s 500(6H) of the Act requires the information to be set out in a written statement to be provided by the person who is going to give evidence and not by a statement from someone else. In the alternative, the Minister submitted that the statement provided must set out that the person will give evidence and an outline of the evidence the person will give. In this case, the evidence from the lawyer was to the effect of the evidence RR would give. Counsel for RCLN argued that the section does not require the statement to be from the person, merely that there be a written statement in a form sufficient to discharge the notice requirement in s 500(6H).
42. This issue was considered by Deputy President Jarvis in SAAC and the Minister for Immigration and Multicultural Indigenous Affairs (2004) 85 ALD 202 at 212 at [41] as follows:
The subsection refers to “information”, and does not relate the prohibition on the receipt of information to the source of that information, and does not refer to the tribunal being constrained from having regard to the evidence of a witness unless he or she has previously provided a written witness statement. It seems to me that circumstances could arise where information has been provided to the minister from one witness, but that witness might later be unable to give evidence; if a second witness were able to provide the same information, s 500(6H) would not in my opinion prevent the tribunal from having regard to this information. The purpose of s 500(6H) would still be achieved, because the applicant would not have changed the nature of his or her case, and would not thereby be putting a new case (to use the language of Gray J in Goldie, above).
43. I agree with Deputy President Jarvis. In the present case, the Minister was served within the time required by s 500(6H) with a statement by RCLN’s lawyer setting out the details of a conversation she had with RCLN’s eldest son about his attitude to his father. The Minister objected to the evidence on the basis that it was hearsay. While the Tribunal is not bound by the rules of evidence, it is preferable for the Tribunal to be provided with the most reliable and cogent evidence, which in this case was evidence directly from RCLN’s eldest son. This gives both the Tribunal and the Minister the opportunity to test this evidence. In my view, there is no requirement in s 500(6H) that the “information” be provided in a written statement from the person who gives oral evidence and, as such, the Tribunal may have regard to such evidence, provided the evidence (or the effect thereof) is set out in a written statement served within time.
44. In these circumstances, I allowed RCLN to call his eldest son to give evidence and had regard to this evidence but had no regard to the hearsay evidence. The evidence of RCLN’s son is referred to below.
THE EVIDENCE
45. RCLN told the Tribunal that he agrees his criminal history is serious but he has matured and made a decision two years ago to change his life. He realises that taking illicit drugs is harmful and results in his reoffending but he has not taken drugs for two years and believes he has good prospects of rehabilitation. He loves his children, including TH, who he considers to be like a daughter, and wants to reconcile with his eldest son, RR. His first wife moved away with RR in late 2002 and RCLN has not seen him since he was about 10 years old.
46. RCLN said he had not used drugs until he met SD but increased his drug use in his early 20s after associating with a bad crowd. He became addicted and supplied drugs to others to feed his habit.
47. RCLN agrees he was abusive to his first wife but says that while there is no excuse, this should be understood in the context that he and his ex-wife had a volatile relationship, both were under the influence of drugs during the relationship and she refused him access to RR after they separated. He has not otherwise been violent and there has been no abuse in the relationship with his current partner. He has never abused the children, although he concedes his eldest son was present during some of his arguments with his first wife where he was subsequently charged with assault.
48. RCLN said he has been troubled because of his past experiences - the trauma of living in Iran, the violence of the home invasion, missing his family in Iran and separation from his eldest son. He has not coped well in the past but believes he now has better tools and greater maturity and motivation.
49. When he was in prison he met Father John and later Father Ken and became interested in Christianity and the teachings of the Bible. His discussions with Father Ken particularly influenced him and he said he has made the decision to convert to Christianity as soon as he can be baptised. If his visa is cancelled and he is returned to Iran, RCLN said he would still convert to Christianity, even though it is illegal in that country, because this is a strong belief that he now holds. RCLN fears for his safety if he is returned to Iran because of his Christian beliefs and history of drug offences, although he agrees he would be discrete about his conversion to Christianity.
50. RCLN has completed the first stage of the Odyssey House rehabilitation program, which is a 12 month program. When questioned why his evidence that he had changed and would not reoffend should be believed when he had promised this before in response to the previous visa cancellation warnings, RCLN told the Tribunal that the coping “tools” he has learned during the program, his Christian beliefs and growing maturity during his last period of incarceration have made a difference.
51. Dr JA, a forensic psychiatrist, provided a report to the Tribunal dated 25 May 2011 and gave evidence. In summary, Dr JA reported that “there appears to be a link between RCLN’s illicit substance abuse, experiencing of psychosocial stressors and offending behaviour”. Dr JA recommended management of these factors through ongoing review by mental health services, regular review by a general practitioner, ongoing support from his family and Odyssey House, consideration of antidepressant medication where appropriate and continued drug and alcohol rehabilitation to ensure there is abstinence from substance abuse. According to Dr JA, if aspects of this management were not available to RCLN, “his risk of relapsing into illicit drug substance and alcohol use may well increase, with the resultant effect of potentially increasing his risk of engaging in associated offending behaviour”.
52. Dr JA told the Tribunal that being in a stable and supportive relationship was an important factor in RCLN’s rehabilitation but it was not the only factor and there was a history of RCLN relapsing into drug use and offending behaviour notwithstanding this support. In Dr JA’s opinion, appropriate management of psychosocial stressors and substance abuse was crucial to RCLN’s rehabilitation and while it was difficult to categorise the risk of recidivism because it was still early days, there was a “significant risk” RCLN would reoffend.
53. JH gave evidence that she had known RCLN since she was 17 years old. She has no relationship with her family, other than her brother who lives in Queensland, and RCLN is her sole support – “he is my everything”. She did not like him taking drugs and the only disagreements they had were about his drug taking, resulting criminal behaviour and the time he spent away from the family in prison. RCLN has never been abusive to her and despite the extended periods he has spent in prison, she and the children visited him every weekend when he was in Sydney and kept constant contact with him through letters, emails and telephone calls when it was not possible for her to visit him after he was moved to Kempsey then Muswellbrook. Her regular visits are corroborated by reports from the New South Wales Department of Corrective Services dated 21 February 2008 and the Probation and Parole Service dated 1 September 2009.
54. JH said she was depressed when RCLN went to prison in 2008 and she then had a relationship with another man. JH told RCLN she was going to do this. The relationship was abusive and JH said this was one of the worst periods in her life. The relationship ended but in April 2009 JH had a daughter as a result of the relationship.
55. JH told the Tribunal she loves RCLN and her children adore him. Her daughter sometimes calls him “dad”. They would be “devastated” if RCLN returned to Iran and both she and the children need him. JH believes RCLN has changed and he is serious about his rehabilitation. He was a different person when she visited him at Odyssey House. About 18 months ago RCLN told her he was interested in becoming a Christian and had been speaking with a priest in the prison. He also told her he was studying the Bible.
56. When RCLN was convicted in March 2007 of driving while disqualified and without a car restraint for their son, JH said she had removed BR from the restraint to settle him down because he was crying. However, she knew RCLN was in possession of drugs and knew it was dangerous for him to drive but said she had no choice at that time.
57. MJ, a social worker, provided a report dated 25 May 2011 and gave evidence. In preparing her report, MJ interviewed RCLN and JH, observed RCLN with his family over a two hour period during a visit at Villawood Detention Centre and reviewed various reports. MJ observed a very positive reaction between RCLN and the children and was of the view that RCLN had the capacity to be an effective parent to provide a good or high level of care. There would be negative consequences for JH and the children if RCLN was required to return to Iran. While there had been contact while RCLN was in prison physical contact was limited and this was important for small children. The children were developing a close relationship with RCLN through the face to face contact at Villawood over the past few months and separation, especially for BR, would cause “a level of psychological harm”. As RCLN’s eldest son has had limited contact with RCLN the impact of RCLN returning to Iran would be minimal at this time but would nonetheless deprive RR from the opportunity to re-establish a relationship with his father and this may have an adverse impact in the future.
58. MJ was asked about the impact on the children and JH if RCLN is not able to abstain from drugs and/or he reoffends. While MJ agreed this would be detrimental to effective parenting she did not agree this would be detrimental to the children. If RCLN reoffended and was again imprisoned, the impact on the children could be lessened if contact was well managed. In MJ’s opinion, an ongoing relationship, provided it was not abusive, was preferable to no relationship or contact.
59. This was also her opinion in respect of the relationship between RCLN and JH. MJ told the Tribunal that if RCLN was required to leave Australia it is likely there would be an adverse impact on JH because she has little support, suffers from depression and may turn to alternatives such as self-medication through drugs or an abusive relationship.
60. AC, administrator for the Odyssey House McGrath Foundation, provided a letter of support for RCLN and gave evidence. She told the Tribunal RCLN had successfully completed the assessment phase of the program and was working through level 1. The program was a 12 month intensive residential course. A participant could not complete the program unless they had progressed through the various stages. There was an assessment phase and four levels which escalated treatment.
61. AC has worked at Odyssey House for 3 years and during that time approximately 2,000 people have participated in the program. She has been asked to provide support letters for over 100 participants but has only agreed to provide such letters in four cases, RCLN being one of them. AC agreed to provide the letter of support because she was impressed with his genuine progress during the program. When he first arrived, RCLN was not very responsive but over time, and in particular after a “probe” session where he shared his experiences with other participants, she noticed a “dramatic” change in his attitude. He began to contribute more, started to take responsibility and “opened up” in his dealings with staff and other participants.
62. AC said she believed that if RCLN had the chance to complete the program it would have a positive and lasting effect on his life and family. She was aware RCLN had been notified of the intention to cancel his visa and she had assisted him to draft a response. There was some suggestion by those representing the Minister that it may have been receipt of the notice rather than the probe session that resulted in RCLN’s change in attitude. AC was asked to check the records and it appears the session took place before the notification letter was received by RCLN and I accept AC’s evidence that RCLN’s progress under the program was significant and genuine.
63. FM, principal of a concreting and landscaping business, told the Tribunal he had known RCLN for 5 years and had met him while they were both in prison. FM was in prison for firearm offences and manufacturing drugs but was no longer associated with drugs. He was released in February 2010 and has been working in his own business with a partner since January 2011. He would be able to provide RCLN with work, either with his business or with other contractors, as there was high demand for concreting.
64. RCLN’s eldest son, RR, gave evidence by telephone. He told the Tribunal that the last time he saw RCLN he was about 10 or 11 years old and he and his older brother stayed with RCLN in Sydney. He last spoke to RCLN when he was about 13 years old but lost contact after this. His father had contacted him recently through Facebook and they had spoken over the telephone. It was very emotional for him. RR cannot remember living together with RCLN and his mother and does not recall any domestic violence or drug use. He has a good relationship with his step father but would like RCLN to remain in Australia so he can build a relationship with him. RCLN is his father and he would like him to be in his life in the future. If RCLN returned to Iran he would try to visit him and his family in his “gap” year but would be unlikely to visit again after this.
65. RCLN sought to rely on the following reports or articles as evidence about the current status of human rights in Iran:
· Report of the UN Secretary-General on the Situation of Human Rights in Iran at the Human Rights Council in Geneva dated 28 March 2011;
· Country Advices from the Refugee Review Tribunal about Iran dated 21 May 2010 and 19 August 2010;
· Research Response from the Refugee Review Tribunal dated 25 June 2008;
· Article headed “Iran: Deepening Crisis on Rights” from Human Rights Watch dated 26 January 2011;
· Annual Report from the United States Commission on International Religious Freedom (USCIRF) headed “Countries of Particular Concern: Iran” dated 28 April 2011;
· Decision of the Refugee Review Tribunal of Australia (RRTA), case 1007836 [2010] RRTA 1157 dated 24 December 2010; and
· Article headed “Another four prisoners executed in Iran for drug charges” dated 14 May 2011.
66. The Minister relied on the Assessment Report of Katherine Brotherton dated 23 May 2011 but did not tender the Report as an expert opinion but rather as a Report containing a summary of information about the status of Iran. It was accepted that the Report also included Ms Brotherton’s assessment of the risk to RCLN but was not authoritative and ultimately this was a matter for the Tribunal to determine based on the information known about Iran and the circumstances of RCLN’s case.
67.According to the Report of the UN Secretary-General:
Since the previous report of the Secretary-General (A/65/370), the human rights situation in the Islamic Republic of Iran has been marked by a crackdown on human rights defenders, women's rights activists, journalists and Government opponents. Concerns about torture, arbitrary detention and unfair trials continue to be raised by United Nations human rights mechanisms. There was a noticeable increase in application of the death penalty, including in case cases of political prisoners, since the beginning of 2011. Discrimination persisted against minority groups, in some cases amounting to persecution.
68. It was also noted there had been reports of punishment such as lashings and stoning. There had been a “dramatic surge” in the number of executions recorded since the beginning of 2011 and “most executions were reportedly carried out in relation to drug offences.” The Report expressed concern about due process and fair trial guarantees and the treatment of religious minorities and observed,
Reports also continue to be received about Christians, in particular converts, being subjected to arbitrary arrest and harassment.
69. The USCIRF Report concluded:
The government of Iran continues to engage in systematic, ongoing, and egregious violations of religious freedom, including prolonged detention, torture, and executions based primarily or entirely upon the religion of the accused. During the past year, religious freedom conditions continue to deteriorate especially for religious minorities such as Baha’is, Christians and Sufi Muslims, and physical attacks, harassment, detention, arrests and imprisonment intensified.
70. In case 1007836 the RRTA considered an application made for a Protection visa under s 65 of the Act. The applicant claimed to have converted to Christianity. To assist in its deliberations the Tribunal referred to a Research Response dated 3 May 2010 on the treatment of converts from Islam to Christian religions. According to the report, conversion from Islam to another religion is considered to be apostasy and individuals could be sentenced to death or life imprisonment under Sharia law. Despite the provisions, reports indicated there had been no recent reports of the death penalty being imposed but there were reports that between 2008 and 2010 “many Christian converts have been arrested and detained for periods ranging from a number of days to nine months”. The RRTA decision also refers to reports that cite specific examples of detention, abuse or discrimination of Christian converts from 2009.
71. The other reports relied on by RCLN are consistent with these reports. The Assessment Report from Ms Brotherton is also consistent. Indeed she refers to a number of the reports relied on by RCLN in her assessment. Ms Brotherton accepts that RCLN and his criminal conduct would come to the attention of the Iranian government once he arrived in the country and he may be detained and subjected to questioning on his arrival but she did not consider on the facts of his case that there were substantial grounds for believing he would be in danger of being subjected to torture as defined in the CAT or that there was a real risk he would face violation of his fundamental human rights under articles 6 or 7 of the ICCPR. This is Ms Brotherton’s view based on her assessment of the facts as presented to her. This is a matter for the Tribunal to determine and I give no weight to this opinion as it is conceded Ms Brotherton has no special expertise in this area.
INTERNATIONAL OBLIGATIONS: NON-REFOULEMENT
72.Direction 41 relevantly provides as follows in relation international obligations:
10.4 International obligations
…
(2) Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered.
Note: Notwithstanding international obligations, the power to refuse to grant a visa or cancel a visa must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister
10.4.3 Other relevant international obligations
(1) The following are to be considered:
(a) The ICCPR has an implicit non-refoulement obligation where, as a necessary or foreseeable consequence of their removal from Australia, the person would face a real risk of violation of their rights under Article 6 (right to life), or Article 7 (freedom from torture and cruel, inhuman or degrading treatment or punishment), or face the death penalty, no matter whether lawfully imposed (Second Optional Protocol);
(b) The CAT has an explicit prohibition against refoulement where there are substantial grounds for believing the person would be in danger of being subjected to torture; and
(c) The prohibition against refoulement and under the ICCPR and the CAT is absolute. There is no balancing of other factors the if removal of a person from a Australia, including removal followed as a consequence of the refusal or cancellation of visa, would amount to refoulement under the ICCPR or the CAT.
73.Articles 6 and 7 of the ICCPR are as follows:
Article 6
(1)Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
(2)In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
(3)When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
(4)Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.
(5)Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.
(6)Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.
Article 7
(1) No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
74.Articles 1 and 3 of the CAT are as follows:
Article 1
(1)For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or. mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
(2)This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 3
(1)No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
(2)For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
75.The Minister contends that international obligations do not fetter the discretion under s 501 of the Act and this is specifically recognised in the note to paragraph 10.4 (2) of Direction 41. This is consistent with the decision of Dowsett J in Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667. Direction 41 therefore requires that international obligations be considered alongside the other primary considerations (as per paragraph 5.2(3)) and the Tribunal should not construe the wording of 10.4.3(1)(c) as having the effect of removing the discretion reposed to the Tribunal.
76.The Minister also contends there must be a causal link between the cancellation of the visa and the “real risk” of violation of the ICCPR (Tracey J in AB v Minister for Immigration and Citizenship (2007) 96 ALD 53) and that such a risk would only be established where “the likely consequences for the applicant would be the deprivation of… fundamental rights (Bustescu and Minister for Immigration and Multicultural Affairs [2000] AATA 819 at [39]). Article 3 does not apply to a person who faces ill treatment short of torture. The Minister submits that the threshold required to engage Australia’s non-refoulement obligations is a relatively high one and the risk must go beyond mere theory or suspicion but does not have to meet the test of highly probable. In this case, there is no evidence that RCLN will face the death penalty, torture or inhuman or degrading treatment simply because of his previous criminal history or his proposed conversion to Christianity. In any event, RCLN has not yet converted and his claims should be viewed with scepticism given this current application for review.
77.RCLN contends that s 501 does not confer an unfettered discretion on this Tribunal and the discretion is fettered by Direction 41. Paragraph 10.4.3 of Direction 41 is not an abrogation of sovereignty; it is an exercise of it. It means what it says. On the true construction of Direction 41, if the Tribunal forms the view that Australia’s obligations under the ICCPR and the CAT are invoked, the Tribunal must set aside the decision to cancel a visa. The note to 10.4 is not relevant to the construction of 10.4.3(c) and is merely an aside that recognises the Minister has an unfettered discretion to refuse or cancel a visa under sections 501A and 501B of the Act and by so doing may override the decision of a delegate or the Tribunal. The reference to Aksu v the Minister for Immigration is misconceived as this was a case where the Minister personally exercised discretion and the issue was whether the discretion could be fettered. RCLN accepts it cannot.
78.RCLN accepts that there must be a causal connection between the cancellation and return of the person to their original country of residence and the expected breach but submits that the test in Bustescu is wrong. It is not necessary to establish it is “likely” there would be a deprivation of fundamental rights but rather a “real chance” as explained by Mason CJ in Chan v Minister for Immigration (1989) 169 CLR 379 at 389:
I prefer the expression "a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
79.I agree with the contentions of RCLN on the construction of Direction 41 and the test to be applied to assess the threshold to engage Australia’s international obligations. The question is, whether on the facts in this case, there would be a breach of those obligations if, as a consequence of cancellation of his visa, RCLN is removed from Australia and returned to Iran. If so, the decision of the delegate must be set aside.
80.I accept RCLN is genuine in his desire to convert to Christianity and will convert even if his visa is cancelled and he is returned to Iran. However, I also accept that he would do so privately so as not to draw attention to himself. There is evidence from both RCLN and JH that he made this decision sometime before he was notified of the intention to cancel his visa. While there is self-interest to both in making such a claim, RCLN was questioned extensively on this issue and was consistent in his responses and the history he provided of discussions with both Father John and Father Ken.
81.It is common ground that the Iranian government will become aware of RCLN’s criminal history, and particularly his drug taking and supply, and it is likely he will be detained and questioned when he enters the country.
82.The evidence from published reports about the deterioration in human rights in Iran since 2009, including a recent report from the UN Secretary-General, is compelling and persuasive. I find there is a real risk of violation of RCLN’s rights under Article 7 of the ICCPR. I also find there are substantial grounds for believing RCLN would be in danger of being subject to torture as defined by Article 1 of the CAT. Article 7 of the ICCPR and Article 3 of the CAT include punishment or detention that involves physical or mental abuse. RCLN protested against the regime when he was young and there is evidence he was arrested at that time. He is likely to come to the attention of Iranian authorities because of his previous drug history and proposed conversion to Christianity and it is possible he will also be targeted because of his previous history of dissent. There is evidence he may be arrested without trial and abused while in detention or forced to recant opposition to the regime or his religion. In my view this risk is not fanciful or merely theoretical and is “well founded”. Relevantly, Article 3(2) of the CAT states that in determining whether there are substantial grounds for believing a person would be in danger of being subject to torture, regard should be had to the existence in the state of a “consistent pattern of gross, flagrant or mass violations of human rights”. The Reports of both the UN Secretary-General and the USCIRF evidence such a consistent pattern.
83. As such, I find that cancellation of RCLN’s visa would breach Australia’s international obligations under the ICCPR and the CAT and the balancing of other factors under Direction 41 is not appropriate. This will be the determining consideration and the Tribunal must set aside the decision of the delegate.
84. I have nonetheless considered the other factors under Direction 41 in the event I am wrong.
PROTECTION OF THE AUSTRALIAN COMMUNITY
85. It is not in dispute that RCLN has a serious criminal record and many of his offences were committed while he was on parole or under court orders. He has been convicted on at least 10 different occasions with numerous offences and has served over 6 years in prison. A number of his sentences were served concurrently. There is evidence his offending has escalated and in the past 6 years he has only been out of prison for 4½ months. Many of the offences were driving related offences and he has been disqualified from driving until 2032. These driving offences were serious but were at the lower end of the scale and can be distinguished from the offences in Tuitaalili and Minister for Immigration and Citizenship [2011] AATA 144 which involved numerous dangerous driving offences and use of a car as an “offensive weapon”.
86. Firearm offences and drug offences are also serious but again his offences were at the lower end of the scale and the drug supply was not for commercial quantities. Paragraph 10.1.1 of Direction 41 provides examples of offences that are considered serious. Drug possession and supply of non commercial quantities is not included but offences relating to assault are specifically identified as crimes involving violence. RCLN has been convicted on four different occasions for assault or breach of a domestic violence order. It does not excuse these offences that they were in the context of domestic violence, although it is relevant RCLN has not been convicted for such offences, or any offences that involve violence, since 1999.
87. I accept RCLN is genuine in his remorse and commitment to rehabilitation but he has not been frank about his drug taking and having regard to the evidence of Dr JA, I find there is a “significant risk” he will reoffend. However, given the history of his past offending, it is more likely than not that the risk will be confined to less serious driving and drug offences.
88. This consideration weighs in favour of cancellation but I do not agree with the submission of the Minister that this weighs “very strongly in favour of cancellation and should be given great weight”. In having regard to the weight to be given to this consideration it is relevant to also consider RCLN’s record and the nature and extent of the risk of harm to the Australian community. In this case, the risk of harm is at the lower end of the scale.
LENGTH OF TIME LIVING IN AUSTRALIA
89. RCLN has lived in Australia for 21 years but he commenced offending within four years of arriving. This is a relatively short period of time prior to criminal activity and the Minister contends this does not weigh in RCLN’s favour and may weigh against based on the decision in Rosson v Minister for Immigration and Citizenship [2011] FCA 194. RCLN concedes this does not weigh in his favour and in my view this consideration is at least neutral.
BEST INTERESTS OF THE CHILD
90. There are three children to consider: RCLN’s 16 year old son from his first marriage, his son from his relationship with JH and JH’s daughter, with whom RCLN has formed an emotional attachment. There is evidence from MJ and JH that it would be in the best interests of the children for RCLN to remain in Australia. Indeed this general principal is recognised by 10.4.1(4) of Direction 41 which provides:
Under Australian law, it is generally presumed the child's best interests will be served if the child remains with its parents. Factors, which may indicate that the child's best interests are served by separation from the person include, but are not limited to:
(a)any evidence that the person has abused or neglected child in any way, including physical, sexual and/or mental abuse or neglect; or
(b)any evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct.
91. There is no evidence of abuse or trauma.
92. As such, this consideration weighs against cancellation and in my view, on the facts of this case; this consideration should be given significant weight.
INTERNATIONAL OBLIGATIONS: NON-REFOULEMENT
93.If I am wrong about the interpretation of paragraph 10.4.3(c) and this consideration is to be balanced with the other considerations, I find that this factor weighs heavily against cancellation.
OTHER CONSIDERATIONS
94. The other considerations relevant to RCLN are: family ties and the extent of disruption to RCLN’s family; his links to Iran; hardship likely to be experienced by RCLN or his family living in Australia, and prior warnings given to RCLN.
95. There is evidence there will be significant disruption to RCLN’s family and, in particular, hardship suffered by RCLN’s current partner, JH. According to MJ, JH is vulnerable and relies on RCLN for support. When he was in prison in Sydney there is evidence JH visited him regularly. This weighs against cancellation. It is also significant that JH’s wellbeing is relevant to the best interests of her children who are in her care.
96. RCLN has not lived in Iran since he was 14 years old but his immediate family live there and this weighs in favour of cancellation.
97. If my findings in relation to Australia’s international obligations in relation to non-refoulement are wrong, the treatment that RCLN may experience if he returns to Iran is nonetheless a relevant consideration under paragraph 11 of Direction 41. Given his history of drug offences and proposed conversion to Christianity, RCLN may experience significant hardship and/or discrimination. Furthermore, he may find it difficult to rehabilitate himself if he is away from his partner and children and in a country with a compromised human rights record. These matters weigh against cancellation.
98. On the other side is the fact that RCLN was given two written warnings about the risk to his visa if he reoffended. Notwithstanding these warnings and his promises not to reoffend, RCLN reoffended after both warnings and was sentenced to significant periods in prison. This clearly favours cancellation.
99. These considerations are all relevant: two weigh in favour of cancellation and two against. The most significant are RCLN’s family ties and the impact cancellation will inevitably have on his partner and children and the hardship likely to be experienced by RCLN if he returns to Iran. In the present case, the evidence of prejudice to RCLN and his partner in Australia if his visa is cancelled is identifiable and significant. I therefore give these matters considerable weight but accept they must be balanced against the primary considerations.
CONCLUSIONS
100. I find that cancellation of RCLN’s visa would breach Australia’s international obligations under the ICCPR and the CAT and as such the Tribunal must set aside the decision of the delegate on the basis of 10.4.3(c) of Direction 41.
101.If I am wrong on the interpretation of 10.4.3(c), it is nonetheless my view that the discretion should be exercised in RCLN’s favour and the decision of the delegate should be set aside. The protection of the Australian community weighs in favour of cancellation as do RCLN’s links with Iran and his failure to comply with the written warnings. However, the considerations in relation to the best interests of RCLN’s children, Australia’s international obligations, the impact of removal on his partner and the hardship RCLN may face in Iran outweighs the other considerations, including the primary consideration of the protection of the Australian community. Even if I was not satisfied there was a breach of Australia’s international obligations, I would exercise the discretion in RCLN’s favour.
DECISION
102.The decision under review is set aside and in substitution it is decided that the discretion in section 501(2) of the Migration Act 1958 should be exercised in the Applicant’s favour so that his visa is not cancelled.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member
Signed: ................[sgd]..............................................................
AssociateDate/s of Hearing 31 May 2011 and 1 June 2011
Date of Decision 17 June 2011
Counsel for the Applicant L. Karp
Solicitor for the Applicant A. Toliopoulos, Legal Aid NSW
Counsel for the Respondent G. Hooper
Solicitor for the Respondent P. Hinton, DLA Piper
4
7
0