RDHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2095
•5 July 2021
RDHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2095 (5 July 2021)
Division:GENERAL DIVISION
File Number:2021/2400
Re:RDHX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:5 July 2021
Place:Melbourne
The Tribunal affirms the decision under review.
...[sgd]....................................................................
Dr Stewart Fenwick, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Malaysia – Class BS Subclass 801 (Partner) visa – single instance of offending – trafficking in a drug of dependence in a large commercial quantity – knowingly dealing with the proceeds of crime – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958Sentencing Act 1991 (Vic)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Multicultural Affairs [2019] FCAFC 202
Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788
Lam and Minister for Immigration and Multicultural Affairs, Re [1999] AATA 56
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Re [2021] AATA 1252ZFHM and Minister for Immigration and Migrant Services, Re [2020] AATA 1642
Secondary Materials
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
Department of Foreign Affairs and Trade, DFAT Country Information Report: Malaysia, 13 December 2019
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, 8 March 2021Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
5 July 2021
BACKGROUND
On 19 April 2021, RDHX applied for review of a decision by a delegate of the Respondent Minister on 12 April 2021 not to revoke, under s 501CA(4) of the Migration Act 1958 (the Act), the mandatory cancellation of a Class BS Subclass 801 Partner visa, under s 501(3A) of the Act.
RDHX is a citizen of Malaysia and first visited Australia in 2007, aged 24, returning to study in 2008. RDHX subsequently returned to Malaysia in 2008, 2009, 2010 and 2013 (only transiting on the last visit). RDHX was granted a permanent partner visa on 1 December 2017, having been in a same-sex relationship for some years at that point in time.
RDHX was arrested on 3 February 2018 following investigations into a drug trafficking operation. RDHX was convicted on 26 May 2020 after pleading guilty to the offences of trafficking in a drug of dependence in a large commercial quantity, and knowingly dealing with the proceeds of crime. The drug in question was methamphetamine. RDHX received a sentence of five years’ imprisonment on the first charge, and six months’ imprisonment on the second charge, four months of which were concurrent with the first penalty.
This offending led to the cancellation of RDHX’s visa on 15 June 2020, being a substantial criminal record as provided in ss 501(6)(a) and (7)(c) of the Act. Representations were made to the Minister on 10 July 2020, leading to the decision of 12 April 2020.
The Applicant’s representatives lodged a Statement of Facts, Issues and Contentions (SFIC) and a Response to the SFIC that was lodged on the Respondent Minister’s behalf. In addition to relying on material lodged with the representations made, the following material was received in evidence at the hearing:
(a)Case Management Review Committee Records (Exhibit A1);
(b)Statement of ET dated 23 May 2021 (Exhibit A2); and
(c)Statement of RG dated 28 May 2021 (Exhibit A3).
In addition to his SFIC, the Respondent Minister lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and s 501G of the Act (G documents and SG documents). Of the latter, the following were received in evidence at the hearing:
(a)ABC News article ‘Malaysian man wins landmark challenge against Muslim gay sex ban’, dated 25 February 2021 (SG10) (Exhibit R1);
(b)Amended Prosecution Plea Opening (SG11) (Exhibit R2); and
(c)Outline of Plea Submissions (SG12) (Exhibit R3).
LEGISLATION
The provisions of the Act identified above arise under s 501, which deals with the refusal or cancellation of a visa on ‘character grounds’. Under s 501(3A), the Minister must cancel a person’s visa if satisfied the person does not pass the character test. As noted above, RDHX’s offending meant that she failed the character test as set out in s 501(6), as the sentence was for a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA of the Act, the Minister, and so the Tribunal on review, may revoke the mandatory cancellation if satisfied there is ‘another reason’ that this should be done (s 501CA(4)(b)(ii)). The Minister has issued a direction under s 499 of the Act about the exercise of this power, a direction which the Tribunal must follow.
Direction No 90 ‘Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (the Direction) was issued on 8 March 2021. This replaces the previous Direction No. 79, under which representations in this matter had originally been made.
The particular factors set out under the primary and other considerations found in the Direction will be addressed under the associated subheadings below. Paragraph 5.2 of the Direction also states certain principles which are described as providing the framework for decision-making under the document. In summary, the principles provide, relevantly:
(a)Australia has a sovereign right to determine whether non-citizens of character concern are allowed to remain in Australia. Being able to remain in Australia is a privilege conferred in the expectation that non-citizens are, and have been law-abiding; will respect the law enforcement framework; and will not cause or threaten harm to individuals of the community;
(b)Non-citizens who have engaged in criminal conduct should expect to forfeit this privilege;
(c)The Australian community expects the Government to cancel a non-citizen’s visa if they engage in conduct that raises serious character concerns. This expectation ‘applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’;
(d)Australia has a low tolerance of criminal or serious conduct by non-citizens who have participated in and contributed to Australia for a short time. However, Australia may afford a higher level of tolerance of such conduct if the non-citizen has lived in the community most of their life, or from a very young age;
(e)Decision-makers must take into account the primary and other considerations relevant to individual cases. In some circumstances, the nature of conduct, or the harm that would be cause if it were repeated, may be so serious that even strong countervailing considerations may be insufficient to justify revocation.
PRIMARY CONSIDERATIONS
The parties conceded that RDHX failed the character test. I am satisfied from the nature of the offending history, having considered the national criminal history check (G2, A, 42), that RDHX fails the character test as defined in the Act. Accordingly, I must turn to the considerations set out in the Direction to determine whether another reason exists for the mandatory cancellation of RDHX’s visa to be revoked.
Protection of the Australian community
Under this consideration, paragraph 8.1(1) of the Direction states that decision-makers:
… should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Decision-makers should also give consideration to the nature and seriousness of the conduct, and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1(2) of the Direction).
The nature and seriousness of the conduct
Paragraph 8.1.1(1) of the Direction sets out guidance as to how a range of specific types of crime or conduct should be regarded. I note that the range of conduct that may be considered ‘very serious’ is not limited to those matters identified at 8.1.1(1)(a), which identifies crimes of violence. Equally, consideration of ‘serious’ crime or conduct is not limited to those listed in 8.1.1(1)(b). Further specific considerations include, relevantly, the sentence imposed by the courts for a crime or crimes, and the frequency of offending.
I draw the following summary of RDHX’s offending, and the court outcome, from the sentencing remarks in the Country Court, dated 26 May 2020 (G2, B).
Police established a specific operation to investigate, using surveillance, a methylamphetamine trafficking business run by a co-accused, Ms L. Ms L and her three-year old son, and RDHX, along with another person, were present at premises raided by Police on 3 February 2018. In the garage of the premises, seven 1 kg packages of methylamphetamine disguised as Chinese Green Tea were found (G2, 50 [26]), as well as a large amount of cash and a cash counting machine, and further cash was found in the house. At separate premises occupied by RDHX, police located $9,000 in cash which RDHX maintained was legitimate savings (G2, 50 [27]).
RDHX conducted 18 and 19-hour round-trips by car to Sydney on 9 and 10 January 2018, and a further trip on 1 February 2018, the last two using a rental car. On 25 January 2018, Ms L asked RDHX to ‘go to Sydney again for her because she is running low’. On 31 January 2018, a conversation took place with RDHX, Ms L and another co-accused, about travelling to Sydney to get RDHX’s car ‘modified, which is code for getting a secret compartment installed’. RDHX told Ms L ‘that it costs a lot of money but Ms L says she will pay’.
RDHX was told by the sentencing judge:
From 29 October 2017 to 3 February 2018 you play a critical role in facilitating [Ms L’s] ongoing methylamphetamine trafficking business. You do so as a trusted courier and storer of drugs and money. You were involved in re-supplying her with stock, as I have said, by traveling to and from Sydney. You trafficked in a large commercial quantity … The benefit that you received for your involvement … was described … as ‘wages’. Plainly … you were not to share in the profits of her business.
In relation to sentencing, RDHX had no criminal history, and entered a plea after committal, but considered to be ‘at the earliest available opportunity’, so facilitating the course of justice. Furthermore, RDHX had ‘quite astoundingly rehabilitated’ during the more than two years waiting for trial. However, it was accepted that RDHX was involved in Ms L’s business for money.
It was noted that RDHX was raised by their mother and lived comfortably in Kuala Lumpur, and was a good student completing high school and a diploma course, later opening a shop with a friend and with the assistance of RDHX’s grandfather. After visiting Australia on a tourist visa, RDHX returned to commence a commercial cookery diploma, which was where RDHX first met Ms L.
RDHX was described as going on to have an ‘exceptionally strong employment history’. After sustaining a work injury, finances were tight and RDHX relied on support from her family in Malaysia to pay bills and expenses. RDHX bought in to a pizza shop ‘but there were problems and, in the end, that business was sold’. In 2017 RDHX worked in hospitality roles and was approached to assist in babysitting Ms L’s three-year old son, an occupation that continued throughout the offending, often four days a week.
Ms L then recruited RDHX to do other aspects related to her business in a role described in the plea submission (and accepted by the judge) as not a ‘mere courier’ and also involving ‘aspects of counselling that lift [RDHX] into a more trusted role’.
The sentencing judge quoted from a letter of reference from a supervisor (G2, E2), something that was said to occur only infrequently, attesting to RDHX’s role as a team leader, in which RDHX demonstrated experience, knowledge and confidence. Sixteen certificates for various courses and two other written testimonials were provided to the Court.
Sentencing was moderated on the basis of the impact of the pandemic, in addition to having regard to RDHX’s concerns about being deported after 13 years in Australia and concerns about life as a same-sex attracted person in Malaysia. His Honour stated: ‘It is not often that I am able to come to the conclusion that a particular accused is genuinely remorseful and insightful. But this is the conclusion I have come to in your case’.
RDHX’s prospects of rehabilitation were described as ‘excellent’, and the chances of returning to court on other offending described by the sentencing judge as ‘in my view, non-existent’. For this reason, it was found that specific deterrence was not a relevant sentencing consideration.
In respect of general deterrence, His Honour made clear to others that the criminal conduct in question should receive ‘stern punishment’, describing it as an ‘evil trade’. There was a need for the offenders to be denounced for engaging in ‘this deplorable trade, which corrupts our society and causes great grief, hardship and loss’, and needing ‘just punishment’.
A five-year base sentence was imposed on RDHX for the trafficking charge, and six months with two months concurrent on the second charge of dealing with proceeds of crime (G2, 81 [155]). A minimum non-parole period of three years was set. In the absence of pleas of guilty, the total sentence would have been nine years’ imprisonment with a six-year non-parole period, and the sentencing remarks note that the trafficking offence carries a maximum sentence of life. RDHX was declared a ‘serious drug offender’ under s 89DI of the Sentencing Act 1991 (Vic).
In evidence at the hearing, RDHX stated that in 2012 she suffered a wrist injury in their employment in a restaurant kitchen. This led to a period of unemployment. After selling the pizza business in 2016, RDHX worked at two part time jobs in hospitality between August/September 2016 and February/March 2017. From around the middle of 2016, RDHX was an Uber Eats driver earning around $200 a day, which she considered ‘good money’.
RDHX stated that she commenced babysitting for Ms L in 2016. Babysitting was usually
3-4 days a week, and on one occasion, RDHX took the baby home for a week, having to text Ms L to come and pick him up.RDHX stated that she was paid $400 a day for the babysitting. RDHX thought this was a reasonable amount since she had bought toys and other things for the baby. RDHX stated that she was owed money for this work and Ms L told her to go out and get what Ms L was owed by other people, and from this money paid RDHX’s outstanding wage.
When cross-examined about finances, RDHX stated that when arrested she had $9,000 in savings. This cash was supposed to be in the bank, but RDHX thought she would take it to Malaysia. Part of the money was cash received from Ms L in return for having bought a $7,000 Chanel bag on a card, and part was from babysitting. RDHX also agreed she had, at the time, $9,000 in a Westpac account. Other than giving money to her mother, RDHX agreed she has no dependents.
In cross-examination, RDHX denied understanding the harmful impact of drugs on the community and claimed to have, ‘most of the time’, just moved money around. RDHX stated she saw Ms L use drugs ‘everyday’, and that ‘she looks normal’. In re-examination RDHX agreed that she had made a mistake in trusting Ms L.
In response to questions from the Tribunal, RDHX stated that Ms L had become pregnant when in prison and RDHX knew the child from the time they were born, having gone to prison to pick Ms L and the child up when released. RDHX stated that she saw drugs, described as ‘not a lot’, perhaps 1 kg. RDHX stated that she only took money to Sydney and did not know there were drugs in the garage when arrested.
It was submitted on RDHX’s behalf that involvement in the drug industry made the offending serious in nature, but the offending was characterised as ‘low level’. However, it was submitted that surrounding circumstances should be taken into account, including financial desperation, lack of awareness of the extent of the business, and that the benefit for RDHX lay in ‘wages’. The decision of ReZFHM and Minister for Immigration and Migrant Services [2020] AATA 1642 (ZFHM) was proposed as an analogous case, in which a drug conviction arose from a peripheral involvement in a syndicate.
The submissions made on the Respondent’s behalf about the seriousness of offending largely reflect the matters raised in the sentencing remarks. It was submitted at the Tribunal hearing that the offending should be considered as very serious, noting the sentence was for a first offence, and took into account remorse and rehabilitation. It was submitted that ZFHM could be distinguished on the different roles of the respective parties, and the different gravity of the specific offence.
Several features of the offending were identified in submissions as aggravating, including: the length of time over which the offending took place; the lack of a meaningful excuse such as duress, disadvantage or addiction; that greed was the only motivating factor due to the money available to RDHX at the time; and the evidence indicated that RDHX was not naïve, but rather, aware of the drug trade underway.
Consideration and finding
While RDHX’s offending amounts to, in effect, a single instance, the offending was over a sustained period. It involved diverse tasks found to involve movement of money and drugs, and RDHX’s role was found to be ‘critical’ to the business.
RDHX was found to be involved for financial gain. The evidence at the hearing about RDHX’s work history and income was generally consistent with that at trial, although RDHX gave evidence about additional funds in a bank account. I note that this evidence contradicts information provided to police about RDHX’s savings, and that she reported at the time of arrest only having $10 in a bank account (SG, p 838).
The evidence about RDHX’s financial situation and the strength or nature of the financial motivation for the offending is somewhat equivocal. However, I consider it appropriate to accept the sentencing judge’s finding, which strengthens the conclusion overall that there was no underlying vulnerability or other exculpatory reason behind the offending.
I do not consider that the decision in ZFHM provides a useful comparator, given that it deals with a markedly different kind of conduct in relation to a different drug, and resulting in a quite different sentence. The maximum sentence of life arising in offending of the kind in this matter also demonstrates this distinction clearly.
RDHX’s sentence was tempered by a number of factors including the stated absence of a need for specific deterrence, the pandemic and the potential for return to Malaysia. However, a custodial sentence of just over five years is substantial, and in the absence of a plea, a notably longer period would have been imposed.
I am satisfied that RDHX’s offending should be considered as serious, and in its nature, one likely to cause substantial damage to the Australian community.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states as follows:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that may risk that it may be repeated may be unacceptable.
The Direction goes on to state factors that a decision-maker must have regard to, cumulatively (8.1.2(2)) being, relevantly:
(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 tie of the decision …
I have set out above the assessment made at the time of sentencing, which was that RDHX was considered to have effectively rehabilitated prior to sentencing, and that there was no risk of reoffending.
At the hearing, RDHX expressed their remorse and stated that she would not reoffend. RDHX stated she had no contact with co-offenders, and had no friends in jail or using drugs. RDHX agreed with the proposition that she had found herself ‘embroiled’ in the circumstances that led to the offending.
RDHX stated she had stayed out of trouble, kept busy with work and overtime in prison, that her résumé has been submitted to employment providers, and that opportunities were waiting in construction roles, and with her friend (witness RG).
RG gave evidence that she had worked with RDHX for some years, and that RDHX lived in her house with her husband and child for three to four years. They have remained in touch throughout RDHX’s time in prison. RG stated she had discussed RDHX with a case review team a couple of times, and understands RDHX is eligible for release.
RG stated that she runs a restaurant with a business partner, which is currently short staffed as a result of the pandemic. She agreed that she would ‘definitely’ employ RDHX on release. RG had also spoken to her brother, also in hospitality, about providing work. RG stated she also intended to offer accommodation to RDHX in a two-bedroom apartment, and this had also been raised with the ‘parole officer’.
News of RDHX’s offending had come as a shock, RG stated, and RG knew RDHX as a hardworking person and that the offending was not in her nature. RG did not consider RDHX would reoffend if she remained in Australia.
It was submitted on RDHX’s behalf that there was no chance that RDHX would reoffend on release. RDHX has taken full responsibility for the offending, expressed remorse and was found by the sentencing judge to have excellent prospects. These factors and the impact on RDHX’s friends, the ties with the community which reflect rehabilitation, and length of residence, were also cited as countervailing considerations as to risk.
RDHX’s representative submitted that the sentencing management unit reports (Exhibit A3) disclosed no adverse material, and reference was also made to the extensive written material provided with the revocation request (G2, E). It was submitted that RDHX was eligible for parole, had been offered meaningful paid work, and had gained numerous qualifications and wider experience during her time in prison.
It was submitted in the Applicant’s SFIC that it is open to the Tribunal to consider the sentencing judge’s assessment as an ‘essential fact’ of the court outcome. In support, the case of Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 was cited for the view that a Tribunal may not impugn a sentence. The case of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 was also cited as an indication of how to consider drug related offending.
On the Respondent’s behalf, it was submitted that it was open to ‘go behind’ elements of the offending, in this case, to re-consider the sentencing judge’s remarks regarding risk. The decision of Minister for Immigration and Multicultural Affairs v JiaLegeng [2001] HCA 17 (Jia) was cited in support, specifically the remarks of Hayne J at [180]. Moreover, it was submitted that even a low risk of reoffending was not acceptable given the disastrous consequences that could result.
It was further submitted that while RDHX deserved credit for training undertaken and her work ethic, it was not evident how any of this rehabilitative effort had addressed RDHX’s particular risk, nor the financial gain underlying the offending.
Consideration and finding
I note the various certificates relating to programs undertaken by RDHX since the offending (G2, D), include: coping with change; ‘family, friends and community’; managing sleep; Alcoholics Anonymous; healthy living; Certificate I in Information, Digital Media and Technology; WorkSafe certifications; and, completion results for units in a range of Certificate courses.
In addition to the particular letter of reference cited by the sentencing judge (G2, E2), other documents from the Department of Justice attest to RDHX’s reliability and accomplishments in warehouse work and acknowledge RDHX’s approval to work as a carer for children in prison. It appears that RDHX has been placed in trusted and responsible roles in prison.
In relation to the assessments referred to by RDHX’s representative (Exhibit A3), these records confirm the above reports regarding capacity and conduct in prison. They also include a note that RDHX’s résumé will be sent with a ‘high recommendation for employment’ and has directly transferable skills. One notation refers to employment related interviews in preparation for parole and the grant of a visa.
I am satisfied that RDHX has in the past demonstrated, and during incarceration has continued to demonstrate, an impressive work ethic. RDHX has amassed a range of trade related certifications and their employability in the future is not in doubt. The evidence strongly indicates, and I accept, that RDHX will be very likely to enter gainful employment, whether with a close friend, or through a service provider.
References from friends and associates, and from independent sources with the justice system, are all very positive about RDHX’s character (G2, E). This contributes to the overall perspective that the offending was out of character.
I consider it also reasonable, however, to observe that there remains no explanation for the offending that might reduce somewhat RDHX’s culpability. The evidence overall indicates that RDHX was employed in a range of work and had some savings at the time of the offending. The description of a daily ‘wage’ of $400 for childcare appears to be given sincerely, and was the figure she provided to Police (SG11, p 1058), but in itself seems an unusually high figure.
RDHX’s expressed general ignorance about the impact of methylamphetamine is hard to accept at face value, as is her description of her friend coping well while using the drug. The notion of naivety as an explanation for RDHX’s conduct was advanced at a number of points in evidence. I consider this notion is not sustainable given the findings in the sentencing remarks.
Despite these findings, RDHX appeared to downplay their knowledge of the enterprise including minimising at times her knowledge of drugs. This, too, runs counter to the sentencing remarks.
A significant issue for this consideration is the weight to be given to the sentencing judge’s opinion that that the risk of reoffending by RDHX was ‘non-existent’. In this matter, there is no independent expert evidence or other formal assessment of risk.
The cases cited in support of the submissions made for the Applicant deal with findings of fact relating to the offending. It does not appear to me that the weight accorded to such fundamental dimensions of a trial process automatically extends to an assessment made by a sentencing judge about future risk. This is particularly the case when it appears that His Honour was not assisted by any formal risk assessment.
I accept that the passage in Jia encourages a view that the Tribunal is entitled to bring accumulated expertise to bear in decision-making. However, the passage refers, by way of example, to country information in the context of work in the former Refugee Review Tribunal. This was, with respect, somewhat outside the facts of the case under consideration. I am therefore less confident that this argument should be read as extending to the application of professional expertise in a technical field such as forensic psychology.
Nonetheless, I consider it reasonable to observe that the Tribunal is routinely engaged in character matters under the Act in making findings about risk. I also consider it appropriate to observe that expert evidence is commonly received by the Tribunal to the effect that no formal risk assessment instrument, or professional judgment, can support an opinion that a person who has offended previously is at no risk of reoffending.
Finally, I note the discussion of factors involved in assessing a risk of reoffending in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [71]–[79]. I understand from this that the bare record of offending is insufficient, and that consideration must be given to the nature and circumstances of past offending, and also to the present circumstances that may bear on risk. I also note the observation of the Tribunal in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51], that once disregard for the law has been shown, ‘it can never be said that there is no risk of re-offending’.
I must consider RDHX’s situation individually, and as part of this, I must give some weight to the sentencing remarks. On balance, however, I find that RDHX presents a risk of reoffending, which I consider to be a low risk.
In making this finding, I take into account the fact that RDHX engaged in the offending behaviour in the absence of any factor that would otherwise be considered exculpatory, or provide some indication, for example, that her offending was a product of some personal vulnerability. RDHX also exhibited a tendency, in evidence, to minimise her conduct, despite its inherent seriousness and the duration over which it occurred.
As noted, I consider RDHX’s apparently weak appreciation of the impact of drug crime to be implausible. If it is to be considered plausible, it demonstrates a lack of insight which does not provide reassurance that RDHX is able to identify what amounts to harmful behaviour. Overall, I consider these factors to outweigh the positive character assessments, and RDHX’s own expression of remorse.
I accept that there is evidence that RDHX has formed a realisation as to the personal consequences of the offending, but this does not extend to a wider realisation about the social impact of the offending. Remorse, and good prospects for work and social support in Australia can be seen as preventive of conditions that might influence future offending. However, taking the evidence as a whole, particularly RDHX’s apparent lack of insight, these factors do not reduce the risk to being so low as to be negligible, or indeed non-existent. In any event, as noted, I do not consider that I can make such a finding.
I am also required to consider the risk to the community arising from any further offences. Given RDHX’s extremely limited offending history, I consider it reasonable to find that any future offending is likely to be of a similar kind. As noted above, RDHX’s participation in this drug enterprise should be considered as very harmful to the Australian community, due to the substantial damage that arises from the methylamphetamine trade.
Summary finding
I have found that RDHX’s offending is of a serous kind, and of a nature that causes substantial damage to the community. I have also found that there is a low risk of RDHX reoffending, but that there is a risk of substantial harm arising from any reoffending.
Taking these considerations cumulatively, I find that this consideration weighs strongly against revocation.
Family violence committed by the non-citizen
This consideration is only relevant where the offending involves family violence and/or there is information that they have been involved in the perpetration of family violence (paragraph 8.2(2) of the Direction). Accordingly, this consideration weighs neutrally.
Best interests of minor children in Australia affected by the decision
Under this consideration, the interests of each relevant child must be considered separately, to the extent that they differ. Paragraph 8.3(4) of the Direction identifies a number of factors that must be considered, and I summarise the most relevant to this matter:
(a)the nature of the relationship, with less weight generally to be given where it is not a parental relationship, there is no existing relationship, or there have been long absences, or limited meaningful contact;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future;
(c)the impact of the non-citizen’s prior or future conduct;
(d)the likely effect any separation from the non-citizen would have, taking into account the ability to maintain contact in other ways; and
(e)whether other persons already fulfil a parental role.
The most positive submission made on the Applicant’s behalf under this consideration was that RDHX has no children or dependents, and while the consideration was inapplicable, this should not be held against the Applicant.
RDHX has clearly had a close relationship with the son of the co-accused. At the time of sentencing, this child was in China, and his prospects of return were unknown (G2, B). At the hearing it was submitted that the child’s whereabouts remain unknown.
There is evidence that RDHX has been in a trusted caring role while in prison for the children of other prisoners. No evidence was advanced as to the existence of any relationship that might be considered more than a childminding role.
RDHX testified to being a godparent to the son of a friend who provided a written character reference for the revocation request (G2, E11). RDHX lived with the referee, her husband, and son for two years from 2014, having met some years previously at a workplace. RDHX stated she ‘always helped to look after’ the child from shortly after his birth, and the child had visited RDHX in prison with his mother. No further evidence was given about this relationship, nor the impact should RDHX return to Malaysia.
I am satisfied that, on the limited evidence, this relationship does not rise to the level of a parental relationship. I have no evidence before me as to the impact on the relationship should RDHX return to Malaysia.
On balance, I find that this consideration weighs neutrally.
Expectations of the Australian community
Paragraph 8.4 of the Direction describes how decision-makers are expected to understand and apply this consideration. In subparagraph (2), there are certain specific forms of conduct which are identified as being of particular concern, however I will not set these out here as they do not arise for consideration in this particular case. Otherwise, the consideration is expressed as follows:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. …
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Applicant’s written submissions, in particular, stressed the contentions made with respect to the level of risk posed by RDHX in the future, and restated the contentions made in relation to RDHX’s rehabilitation. Further, it was submitted, on the basis of other Tribunal decisions, that the Australian community would be expected to offer RDHX a ‘second chance’. Certain contentions around the issue of non-refoulement were also incorporated in submissions on this consideration. At the hearing, this was also expressed as an expectation in the community that RDHX would not be doubly punished through non-revocation.
On the Respondent’s behalf, it was submitted at the hearing that this consideration should weigh very heavily against revocation. The consideration is expressed, it was submitted, in normative terms and is a deemed expectation. RDHX was expected to obey the law and having failed to do so, should not expect to be allowed to remain. It was stressed that the consideration states that the expectation should be applied regardless of whether there is a measurable risk of future harm to the community. This might be considered to be decisive of its application.
The Respondent SFIC references the decision of the Full Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) in relation to the nature and force of this consideration. The decision of the Tribunal in Viljoen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1252 is also cited for the observation made in that decision that the principles enunciated in FYBR are analogous in the context of Direction 90.
This consideration is expressed in particularly clear terms, and I accept that it is to be understood as a deemed expectation and is (on its terms) normative. However, I also understand that the weight to be afforded this consideration remains a matter for determination in the circumstances of particular individuals.
In this case, having found that RDHX engaged in serious criminal conduct, the expectation that she be law abiding has been breached. I have also found that the offending, by its nature, was damaging to the community. I am satisfied, therefore, that offending was of a kind that requires the expectation to be given some weight.
Accordingly, I am satisfied that this consideration weighs strongly against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Paragraph 9.1 of the Direction sets out at some length the factors to be taken into account. It describes a non-refoulement obligation (paragraph 9.1(1)): as ‘an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm’. The obligation may arise under several international human rights conventions, and it is stated specifically that the Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of the obligations and their scope. Decision-makers should follow the tests enunciated in the Act when considering any such obligation.
Any non-refoulement obligation must be weighed against the seriousness of the offending (paragraph 9.1(2) of the Direction), mindful of the legal obligation that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable. However, the consideration states further that the existence of a non-refoulment obligation does not preclude an adverse decision due to the existence of certain other legal procedures (paragraph 9.1(3)).
The consideration states further that a decision-maker is not required to make a positive finding as to harm, but in an appropriate case may assume in a non-citizen’s favour that it will occur (paragraph 9.1(6) of the Direction). Where claims have been made, as here, in response to a cancellation notice, those claims may be assessed if and when an application is made for a protection visa (paragraph 9.1(7)).
RDHX gave evidence that her sexual orientation was known to her mother and close friends and that she had same-sex partners from school years. RDHX also stated in evidence that due to her ‘tomboy’ appearance she experienced unpleasant acts of hostility and harassment in Malaysia.
RDHX described incidents such as being spat at, and unwelcome remarks of a sexualised nature. RDHX stated she visited Chinatown once only when young because on that visit she experienced harassment. RDHX also described holding hands in public once or twice with a partner, which resulted in people glaring. I understood RDHX’s evidence about failing to secure a restaurant job during Ramadan to be a result of gender and not sexual orientation.
On return visits to Malaysia, RDHX stated that she has resided in the family apartment. Outings consisted of visits ‘downstairs’ to hawker stalls to eat with RDHX’s mother and friends. In re-examination, RDHX agreed that she was fearful for her safety if returned to Malaysia, and that discrimination would continue.
RDHX was asked in cross-examination about the duration of various return trips to Malaysia since their initial visit in late 2007. RDHX was taken through periods outside Australia based on her movement record (G2, H) and in this passage of evidence, time spent in countries other than Malaysia was identified. Visits overseas included time in Hong Kong, Thailand, and Vietnam. According to this evidence, RDHX spent the following periods in Malaysia:
(a)Two months between 19 November 2007 and 20 January 2008;
(b)Three months between 30 August and 3 December 2008;
(c)Two weeks between 12 and 25 September 2009;
(d)Three weeks between 3 December and 24 December 2010; and
(e)A brief transit in January 2013.
RDHX also gave evidence about the travel planned but not undertaken as a result of arrest in February 2018. RDHX gave evidence that she had booked a one-way flight to Malaysia for 7 February 2018. RDHX also stated that she intended to return with witness RG who was travelling at the same time. RDHX gave evidence that on this February trip, she had intended to take her mother and grandfather out of the city: ‘just out to lunch, not day trips’.
RDHX’s experience of harassment was attested to in the evidence of the witness EL, who identifies as bisexual, and who gave evidence from Malaysia. EL stated she could feel RDHX’s stress when going out together. Asked about her own behaviour, EL stated that she makes her appearance less obvious out of necessity, as being gay is against the law. EL stated that discrimination in government services was primarily based on ethnicity and income.
RG stated in evidence that she thought RDHX could be very easily targeted in Malaysia due to RDHX’s form of dress. RDHX may not be targeted if with a woman, but certainly if with a partner.
RG confirmed that she had encouraged RDHX to purchase a seat next to her for the return from Malaysia in February 2018.
Extensive submissions have been made on RDHX’s behalf that she is owed non-refoulment obligations on the basis of sexual orientation. It was submitted at the hearing that RDHX is a vulnerable individual who would be required to conceal their sexuality if returned to Malaysia, restricting her freedom of expression.
The primary submission made on the Respondent’s behalf was that, on the evidence, it was open to the Tribunal to find that RDHX did not possess a subjective fear such as to amount to a well-founded fear of persecution. This was because RDHX returned to Malaysia on several occasions, during which time the basis of the claimed fear has been present.
The Tribunal was directed to the decision of Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 (Iyer), for the proposition that a well-founded fear of persecution under the Convention relating to the Status of Refugees (with the Protocol relating to the Status of Refugees) contains a subjective element which, if not satisfied, meant that there was no obligation to go on to consider whether a non-existent fear was well-founded (at [29]).
It was further submitted that the level and kind of discrimination experienced by RDHX was not of a sufficiently serious kind to lead to a genuine fear of harm. It was submitted that a February 2021 decision of the Malaysian Federal Court against a prosecution under state-based Syariah laws had been received by LGBTI advocates as a historic win (Exhibit R1).
Alternative submissions were also made to the effect that if this subjective element is found to exist, any harm arising would not be of a kind to meet established tests for harm. Further, should non-refoulement obligations be found, this is not determinative in the weighting of the considerations.
Consideration and finding
In addressing this consideration, I take account of the fact that RDHX has the option of applying for a protection visa, and that any protection claims may be considered as part of any such application. I also understand that I am not required to speculate about the further decision-making processes that may arise under the Act, nor any further detention, noting that RDHX is not in immigration detention. I also note that, as part of any future decision-making process, RDHX’s eligibility for a protection visa may be affected by her offending history, due to the effect of s 36(1C)(b) of the Act.
As noted, the Direction describes non-refoulment obligations and their scope as being reflected in the concept of ‘protection obligations’, and directs decision-makers to follow tests enunciated in the Act. I also note the consideration involves identification of a specific type of harm, and consider that the tests in the Act are referred to in order to provide parameters when addressing the harm identified by a non-citizen applicant.
The term ‘protection obligations’ arises in the Act in the context of s 36. That is, protection obligations may arise from a person’s status as a refugee (s 23(2)(a)) or under the complementary protection obligations (s 26(2)(aa)), said to arise in the context of a person’s removal from Australia.
In the case of protection obligations arising from a person’s status as a refugee, the underlying risk identified in the Act is found in the instances of ‘serious harm’ identified in s 5J(5) of the Act, adopted in the process of defining a well-founded fear of persecution in s 5H. While not an exclusive list, the instances identified are: a threat to a person’s life or liberty; significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens a person’s capacity to subsist; denial of access to basic services that threatens a person’s capacity to subsist; and, denial of capacity to earn a livelihood of any kind that threatens a person’s capacity to subsist.
In the case of complementary protection, obligations arise as a result of a real risk of ‘significant harm’, which is defined in s 36(2A) of the Act by reference to: being subject to arbitrary deprivation of life; torture; cruel or inhuman treatment or punishment; or, degrading treatment or punishment. Degrading treatment or punishment is further defined in s 5 of the Act as an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
Discrimination based on sexual orientation is addressed at some length in the DFAT Country Information Report: Malaysia (from [3.130]–[3.141]) (DFAT Country Report). I accept that all but a very narrowly defined form of sexual activity is deemed criminal in Malaysia, and that some state-based Syariah law also prohibits same-sex activity. The report indicates clearly that actions by officials have consistently been to discourage and prevent the public expression of homosexual orientation. This reinforces the evidence at the hearing which demonstrated that RDHX was unable to freely express her sexual identity in public.
The DFAT Country Report also assesses that the level and frequency of discrimination varies depending on socio-economic status and location. Society is considered generally more permissive in Kuala Lumpur, for example. The report concludes (at [3.141]):
…LGBTI individuals face a moderate risk of both official and societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities, and/or familial or societal violence. Some of these risks are higher for transgender individuals, and for those located in poorer and rural areas.
I consider the submission with respect to the recent Malaysian Federal Court decision should be given some, but limited, weight. It relates to offences under Islamic law, outside the Capital, and is a very recent and seemingly isolated development.
While I note the Respondent’s contention based on Iyer, the principle cited from this decision deals with satisfying the test of a well-founded fear of persecution only. The consideration embraces two differently expressed categories of harm, arising from the twin components of protection obligations, as defined. As noted, the complementary protection obligations are expressed as a state of satisfaction as to the existence of a real risk of significant harm.
The argument arising from this submission, however, raises an important practical consideration about the nature of the harm in question. The principal issue here is really one of what has been described as the ‘threshold of seriousness’ (Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216, at [37]). That is, for the purposes of this consideration, whether the harm said to arise from RDHX’s return to Malaysia rises to a relevant level, in the context of the tests set out.
I accept the evidence about the nature and extent of past experiences of harassment, and as to the fear of such harm should RDHX return. I also accept, based on the DFAT Country Report, that there is a moderate risk of societal and possibly official discrimination. This risk of harm clearly arises from RDHX’s sexual orientation.
However, I do not accept that the nature and the extent of the risk to rise to harm of a kind that is contemplated by the tests found in the Act. Further, the choice made by RDHX to return to Malaysia on a number of occasions, and to plan another return trip prior to her arrest, runs contrary to the claims made under this consideration.
Accordingly, I find this consideration weighs neutrally.
To the extent that RDHX’s concerns about a risk of harm were she to return to Malaysia remain a relevant consideration, I return to them under the following consideration.
Extent of impediments if removed
Paragraph 9.2(1) of the Direction requires a decision-maker to consider the extent of impediments faced by a non-citizen if removed, ‘in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country)’, and taking into account: their age and health; whether there are substantial language or cultural barriers; and, any social, medical and/or economic support available to them.
There is no dispute in this matter that RDHX is of Chinese ethnicity, nor that RDHX identifies as being of same-sex orientation. I accept these matters and consider that they should inform deliberations on this consideration.
The written and oral evidence indicate that RDHX was raised in a small family environment in her mother’s apartment in Kuala Lumpur. RDHX’s father was not present in her life and RDHX was close to the maternal grandfather.
There is written evidence documenting the mother’s long history of mental illness (G2, F1) and RDHX stated her mother continues to work part time. RDHX described her grandfather in affectionate terms. While he had run an herbal medicine shop, RDHX stated that her grandfather also had a gambling problem. RDHX’s mother received some money on the death of the grandfather recently.
RDHX gave evidence that she attended a state, same-sex school in which instruction was primarily in English. RDHX stated she did not attain the final high school certification due to failing the Malay exam, however RDHX passed all other elements. RDHX completed a diploma qualification in Informatics after completing high school. RDHX stated her degree of competence in Malay enabled her to speak to people in terms they can understand, but not to write a letter.
RDHX’s work history in Malaysia appears to consist of establishing a small phone shop with a business partner, as well as a part-time job at age 16. In oral evidence RDHX stated she worked in this role for around six months before contracting tuberculosis and then later selling the business. The plea submission (SG12, 1064) describes this shop as running for three years between 2004–2007.
RDHX stated that she considered it would be difficult to secure employment in a kitchen, in construction or in a factory. RDHX also described access to the health system for ethnic Chinese and those without insurance as poor. The evidence generally arose in regard to RDHX’s capacity to help with their mother’s condition, stating that her late grandfather had paid hospital bills.
EL stated in evidence that RDHX’s mother had rented one of the two bedrooms to a ‘foreigner’ and described the apartment as very rundown. EL considered that it was not impossible for RDHX to obtain work in a restaurant if returned, but explained that men are usually employed in the kitchen, and Indonesian female guest workers are employed as dishwashers. Given the skills sets of cookery and construction, EL considered it would be very hard for RDHX to gain employment in Malaysia. This included for the reason that foreign workers were cheaper to hire, and she considered a foreign conviction would also reduce RDHX’s employability.
RG provided evidence of a similar nature in relation to the accessibility of government services. She considered that as a Chinese Malaysian, RDHX would be considered ‘third class’. RG stated RDHX’s employment prospects in any sector in Malaysia would be affected by knowledge that RDHX is gay. RG stated RDHX’s network of friends is much stronger in Australia due to the time spent here.
It was submitted on RDHX’s behalf at the hearing that RDHX would face an ‘onerous’ difficulty, personally to attain the basic standard of living expressed in the Direction. In particular, the institutionalised system of preferences in Malaysia based on ethnicity would contribute to this, and it amounted to pervasive discrimination.
It was also submitted that RDHX was not fluent in Malay. It was further contended in the Applicant’s SFIC that there was discrimination in Malaysia in employment of former convicts.
On the Respondent’s behalf, it was submitted at the hearing that RDHX was well placed to return to Malaysia. Her skills, work experience and intelligence meant that she could adapt to work in different sectors. The test in the consideration is a basic standard of living and while this might entail a drop in living standards, this was not of major concern. In the Respondent‘s SFIC, it is contended that a distinction should be drawn between the prospects of former Malaysian convicts and the Applicant returning with a foreign conviction.
Consideration and findings
I consider it relevant to note the age at which RDHX came to study and ultimately work in Australia, which was 24. By this time, she had lived continuously in Malaysia, apart from one short visit to Australia. RDHX completed high school and obtained a qualification despite not receiving a school leaving certificate.
I accept that RDHX’s work experience in Malaysia is quite limited. However, the evidence clearly demonstrates that she is dynamic and adaptable, and has a strong work ethic. RDHX’s work experience spans several sectors.
Other than the injury noted above, which does not appear to have led to a permanent impairment, the evidence has not disclosed any obvious health issues.
Some effort was made in the hearing to emphasise certain social and economic barriers faced by ethnic Chinese in Malaysia. The DFAT Country Report indicates that the ethnic Chinese population makes up approximately 20% of the national total (at [3.8]). It is reported that positive discrimination exists in terms of civil service employment in favour of ethnic Malays. However, the report assesses (at [3.14]) that Chinese Malaysians experience low levels of official discrimination in state employment and when operating businesses in the private sector.
Some attention was also paid to the limitations RDHX may face in access to government services. As noted, I understood this to relate to some extent to RDHX’s capacity to care for her mother. There was no specific evidence adduced as to RDHX’s likely personal need for government support. I note the DFAT Country Report describes a relatively recently established program of unemployment benefits (at [3.150]), and also assistance to the elderly and disadvantaged (at [3.149]). It also describes a ‘well-established universal health care system’ which includes user charges over and above a high subsidy for services (at [2.19]–[2.20]).
I am satisfied that RDHX does not face any age or health related issues if returned to Malaysia. Overall, and particularly given the fact of RDHX living to maturity in Malaysia, I am not satisfied that RDHX would face substantial language or cultural barriers on return, in the form of barriers associated with being ethnic Chinese. I do not consider the evidence to make out that any formal barriers exist to RDHX obtaining access to health or other government services.
I have limited evidence about the specific impact of RDHX being identified as having been convicted of an offence in Australia. I consider it reasonable to accept that there is some chance that this may need to be disclosed in some formal interactions, for example with employers or the government.
While the evidence about future work opportunities was largely anecdotal, I accept that, overall, the evidence indicates that RDHX may well face some difficulty in integrating into the Malaysian workforce. This is particularly in view of RDHX’s limited work history in her home country. This perspective should be tempered, however, with the evidence which I accept demonstrates that RDHX has the capacity to be highly motivated, has successfully managed multiple employment opportunities, often at the same time, and has adapted to different work sectors.
I consider that the evidence overall demonstrates that RDHX’s sexual orientation presents RDHX with a higher barrier in respect of becoming re-established in Malaysia. There is sufficient evidence of a pervasive anti-social attitude toward people of diverse sexual orientations, which indicates that RDHX is likely to experience discrimination at a societal level, and there is a possibility of some official discrimination. The evidence is less clear about how this might directly affect employment or access to services.
Returning, though, to the text of this consideration, it is also relevant to put these considerations in the context of RDHX being able to maintain basic living standards. I am also required under the Direction to give appropriate weight to information from ‘independent and authoritative sources’ (paragraph 7(1) of the Direction). The particular assessments in the DFAT report as to the issues for those of same-sex orientation and for ethnic Chinese satisfy me that these factors, are not minor, or negligible. However, they do not rise to a level that would make a basic living standard unattainable, or in some way unrealistic.
On balance, I am satisfied on the evidence as a whole, that this consideration weighs slightly in favour of revocation.
Impact on victims
Paragraph 9.3(1) of the Direction requires a decision-maker to consider the impact of a revocation decision on members of the Australian community, including victims and their family members, where such information is available.
In this case no relevant information is available and, accordingly, this consideration weighs neutrally.
Links to the Australian community
Paragraph 9.4 of the Direction refers back to the principles at paragraph 5.2 (set out above), before identifying factors that decision-makers must have regard to in this consideration, which fall under two categories.
The first category is found in paragraph 9.4.1: ‘The strength, nature and duration of ties to Australia’. Decision-makers must have regard to any impact of a decision on a non-citizen’s immediate family members in Australia (paragraph 9.4.1(1)) — this factor is not engaged in this matter.
Consideration must also be had to the strength, nature and duration of ties to the Australian community (paragraph 9.4.1(2) of the Direction) having regard to how long the non-citizen has resided in Australia, noting that less weight should be given where offending began soon after arrival, and more weight given to the time a non-citizen has spent contributing positively to the Australian community. Further, the strength, nature and duration of any social ties with Australian citizens, permanent residents or people who have an indefinite right to remain in Australia must also be considered.
The second category under this consideration is in paragraph 9.4.2: ‘Impact on Australian business interests’. Decision-makers must consider any impact, noting that an employment link would ‘generally only be given weight’ where a decision (which I take to mean a decision not to revoke the mandatory cancellation) would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
RDHX has been the holder of a permanent partner visa and stated in evidence that her relationship with her partner ended sometime after RDHX’s arrest and incarceration. RDHX stated that she remains in contact with her former partner, and acknowledged that this person had written a letter to the sentencing judge (G2, E9), and was pregnant.
RDHX also acknowledged in evidence her relationship with RG and affirmed the nature and extent of the friendship as described in RG’s own evidence which I have set out above. I note also the separate refence provided (G2, E11), by the mother of RDHX’s godchild, which also attests to a long and close friendship.
I have noted above the evidence in respect of RDHX’s employment prospects, including with RG. RG also gave evidence, as noted, about staffing difficulties in the hospitality sector as a result of the COVID-19 pandemic.
It was submitted on RDHX’s behalf that she has meaningful employment options in the future and, in particular, the labour shortage in hospitality outweighs the impact of her removal. RDHX has been an active and positive contributor to the community, with numerous qualifications and skills, which are also set out at length in the Applicant’s SFIC. It was also submitted on her behalf that, given the impact of the pandemic, revocation would be in the interests of the hospitality sector.
It was submitted on the Respondent’s behalf that RDHX’s positive contribution was clear, and that the ten years that elapsed prior to the offending should be given some weight. Modest weight should also be given to the personal connections with those referees based in Australia. It was submitted that the employment offers made do not indicate that any negative impact would arise were RDHX be unable to be engaged. Further, given that no major project will be affected, no weight should be afforded this aspect of the consideration.
Consideration and findings
RDHX’s single instance of offending occurred many years after moving to Australia to study and, ultimately, settle. RDHX’s employment record undoubtedly demonstrates a commendable work ethic, which in itself forms a positive contribution to the community.
RDHX made firm and lasting friendships primarily through places of work. I consider from the nature and length of the relationships and the personal circumstances of the referees, as described in the evidence, that it may be inferred that these persons qualify, in the terms of the Direction, as people with an indefinite right to remain in Australia.
There is no further evidence before me as to any other social or community links formed over RDHX’s time in Australia. This may well be due in part to the nature of the sector in which RDHX worked.
Due weight must be given to the positive contribution made by RDHX, and some credit to the fact that RDHX has friends willing to provide supporting references which demonstrate sustained and close relationships.
The Direction does not preclude some consideration of how revocation might produce an impact upon Australian business interests in this case. However, I do not consider the evidence to make out a good argument that any particular business would suffer in some identifiable way should RDHX return to Malaysia. Equally, the impact on the hospitality sector of her return would be negligible.
RDHX’s immediate family consists solely of her mother, who is not in Australia. Other than this significant personal relationship, the majority of RDHX’s links would appear to be with persons in Australia, and are of some duration and importance.
Accordingly, taking the evidence as a whole, I find that this consideration weighs moderately in favour of revocation.
CONCLUSION
Of the primary considerations, I have found that two considerations, Protection of the Australian community and Expectations of the Australian community, weigh strongly against revocation. I have found that the other primary considerations weigh neutrally.
Of the other considerations, I have found that the consideration Extent of impediments if removed weighs slightly for revocation. I have found that the consideration Links to the Australian community weighs moderately for revocation. I have found that the other considerations, including International non-refoulement obligations, all weigh neutrally.
Paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than other considerations. That is, in determining whether another reason exists to revoke a mandatory cancellation decision, the individual weight found to apply to respective considerations is not necessarily determinative.
In this case, I consider the rather modest weight in favour of revocation, given to two of the other considerations, to be insufficient to overturn the general presumption, which is that greater weight be given to the primary considerations. Accordingly, I am unable to find that there is another reason to revoke the mandatory cancellation decision.
DECISION
For the reasons given above, the Tribunal affirms the decision of 12 April 2021 not to revoke the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa.
I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member
...[sgd]....................................................................
Associate
Dated: 5 July 2021
Dates of hearing: 21–22 June 2021 Advocate for the Applicant: Mr George Botros Solicitors for the Applicant: Madison Marcus Counsel for the Respondent: Mr Jonathan Barrington Solicitors for the Respondent: Mills Oakley Lawyers
0
8
0