SKBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 3673
•2 November 2023
SKBQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3673 (2 November 2023)
Division:GENERAL DIVISION
File Number: 2023/5847
Re:SKBQ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date of Decision: 2 November 2023
Date of Reasons: 7 November 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 10 August 2023 and substitutes it with a decision to revoke the cancellation of the Applicant's Class XB Subclass 200 Refugee visa.
....[sgn]....................................................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XB Subclass 200 Refugee visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulation 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050
ECE21 v Minister for Home Affairs [2023] FCAFC 52
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member R Maguire
7 November 2023
INTRODUCTION
By application made on 10 August 2023, the Applicant seeks the review of a decision[1] made by the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) dated 10 August 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not to revoke the decision made on 28 June 2022 under s 501(3A) of the Act to mandatorily cancel the Applicant’s Class XB Subclass 200 Refugee visa.
[1] G1, p 4.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under
s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
1For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
On 22 November 2022, the Applicant was sentenced to 2 years and 6 months imprisonment.[2]
[2] G1, p 34.
On 28 June 2022, whilst the Applicant was in custody serving a term of imprisonment, the Respondent, acted pursuant to s 501(3A) of the Act and mandatorily cancelled the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[3]
[3] G1, pp 62-63.
Following the decision made pursuant to s 501CA(4) of the Act, the Applicant made the present application to this Tribunal for a review of that decision.[4] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[4] G1, pp 4-6.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 2 November 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[5]
[5] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].
If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[6]
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].
As provided in s 501CA(4)(b) of the Act, there are two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7]
[7] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The parties are in agreement that the Applicant does not pass the character test by virtue of his substantial criminal record.[8]
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
[8] R1, p 9, [35]; A1, p 3, [6].
Ministerial Direction No. 99
In considering whether to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the power in s 501CA(4) of the Act.
[9] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.
Relevantly, the Direction states that:[10]
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
[10] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance or criminal or other serious misconduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community.
The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[11] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Applicant’s history of offending and other serious conduct
The totality of the Applicant’s offending may be summarised in the following table:
Court Date Offence Sentence Queensland District Court
June 2022
Enter dwelling with intent at night whilst armed in company
Robbery with actual violence armed/in company/wounded/used personal violence
Conviction recorded
Imprisonment: 2 years 6 months
To be served cumulatively on sentence imposed by QLD District Court on May 2021
Pre-sentence custody of 192 days not declared as time already served under this sentence
Queensland Magistrate Court
December 2021
Possessing anything used in the commission of crime defined in part 2
Conviction recorded
Imprisonment: 1 month
To be suspended for: 12 months
Supply dangerous drugs (7 charges)
Possessing dangerous drugs
Conviction recorded
Imprisonment: 4 months
To be suspended for: 12 months
June 2021
Fail to give statutory declaration
Conviction recorded
Fined: $1,500
Queensland District Court
May 2021
Breach of probation order imposed (on March 2020)
Breach(es) proven
Order(s) revoked
Resentenced for original offence(s)
Conviction recorded
Imprisonment: 6 months
Queensland Magistrate Court
May 2021
Possessing dangerous drugs
Possess utensils or pipes for use
Conviction recoded
Fined: $1,000
Queensland Magistrate Court
February 2021
Evasion offence type 1 vehicle related offence
Conviction recorded
Fined: $7,000
MDL disqualified period: 2 years
Uttering counterfeit money
Conviction recorded
Fined: $1,500
Queensland District Court
March 2020
Breach of probation order imposed on March 2018
Breach(es) proven
Order(s) revoked
Resentenced for original offence(s)
Conviction recorded
Probation period: 18 months
Queensland Magistrate Court
December 2019
Supplying dangerous drugs
Possessing dangerous drugs
Possess property suspected of having been used in connection with the commission of a drug offence
Conviction recorded
Fined: $1,200
Queensland Magistrate Court
February 2019
Possessing counterfeit money
Uttering counterfeit money
Conviction recorded
Community service time: 120 hours
Assault or obstruct police officers
Trespass – entering or remaining in dwelling or yard
Possessing dangerous drugs
Contravention of domestic violence order
Conviction recorded
Community service time: 120 hours
Court of Appeal of Queensland
November 2018
Application for leave to appeal against sentence imposed on March 2018
Application granted
Appeal allowed
Sentence set aside and in lieu thereof:
Conviction recorded
Imprisonment: 9 months
To be suspended for: 9 months
Sentence is otherwise affirmed
Queensland District Court
March 2018
Robbery armed in company
(refer to appeal entry dated November 2018)
Conviction recorded
Imprisonment: 2 years
Threatening violence – by words or conduct
Conviction recorded
Probation period: 30 months
Queensland Magistrate Court
March 2016
Offence to operate vehicle during number plate confiscation period
Conviction recorded
Fined: $700
EVIDENCE AT HEARING
The hearing of this application took place in Brisbane on 17 and 18 October 2023 in the presence of the Applicant. His counsel, Ms Battisson appeared via video link. The Respondent was represented by Mr West of Sparke Helmore.
Ms Battisson told the Tribunal (with references to evidence before it) of the many terrible hardships the Applicant faced as an infant, before he was even ten years old, and observed:
..even for people who have conducted a significant number of refugee claim cases or have acted on them, the applicant’s background in terms of exposure to violence, deprivation and his resilience is extraordinary at such a young age of under 10.
The Applicant is a 24-year-old man of Kunama parentage from Eritrea, The Kunama are a persecuted minority group in Ethiopia and Eritrea. He was born during the the Eritrean-Ethiopian War. His mother was struck in the head during a bombing and had not been the same since. His family fled the country, and lived for a year in a cave in Ethiopia before fleeing to Sudan where they were captured and held for ransom by Sudanese militia and spent months in a warehouse where they were beaten and exposed to violence against others. As a seven or eight-year-old, he witnessed death in the warehouse and was forced to live with a corpse for days. Ransom money was paid by other Kunama community members, and the Applicant and his family then spent months walking and travelling to Ethiopia to reach a refugee camp. They lived in a house at the refugee camp for less than a year, which was later attacked and burned by local Tigrays. The Applicant’s father died while he and his brother were trying to carry him to medical assistance. His brother’s mental health deteriorated, and he had to contribute to his family’s survival. He collected water to sell until he encountered a lion, and then gathered and sold mushrooms and firewood to sustain his family.
The Applicant spent his early years living in fear, and never knew peace or stability until he came to Australia.
Ms Battisson described the serious health issues of the Applicant’s non-english speaking mother and brother, and his role in their support, and his position of “extreme responsibility since the age of 12”. She submitted that he had not committed crimes the nature of which are so heinous that any risk of recidivism was unacceptable, and his risk of reoffending was low.
The Applicant had completed various courses relating to drug addiction and offending, including those which were self-directed and voluntary. He was on the waiting list for counselling with the Queensland Program of Assistance to Survivors of Torture and Trauma, QPASTT, a specialist agency which works with refugee survivors of torture and trauma to help them recover from their traumatic experiences. He had been described by the sentencing judge in the latest offending as, ‘a model prisoner’.
The Applicant had been in Australia for a period of 12 years, being half his life. His formative teenage years had been spent in Australia, and his family and community were here. He had no one he knows in Eritrea. The Applicant was de facto stateless, had clear non-refoulement claims detailed in the Applicant’s SFIC, and there were significant impediments to his return.
Applicant’s evidence at hearing
The Applicant gave sworn evidence and affirmed his statements being Exhibits A12 and A21.
He told Mr West that he could speak Kunama, but not Tigrinya. He was not sure if he would apply for a Protection visa. His family spoke Kunama at home and observed Kunaman cultural occasions, and ate traditional food. He did not use drugs at home. He had told his mother of his drug use and she wanted him to see a psychologist.
If released into the community, he will live with his mother and brother, have a job, and see a psychologist. He previously had a job with a construction company for two to three years, and has received an offer to return to it, which he intends to accept. He had also done volunteer community work. He had done eight months’ kitchen work while in prison working 6 day weeks. He had been trusted to use sharp knives for cutting vegetables.
The Applicant said the only drugs he used were marijuana and suboxone once or twice. He had tried methamphetamine three times when he was about 16. He had never injected drugs, and had not touched methamphetamine in the eight years since he was 16.
The Applicant was questioned regarding an incident between himself and his brother on 2 November 2017, and referred to Ex 2 pp87-88[12].
[12] Wherein it was recorded that his brother was not in fear of the Applicant, and just wanted the police to talk to him.
The Applicant was then questioned regarding an incident between himself, his mother and his brother on 10 November 2017, and referred to Ex 2 p 89.[13]
[13]There is no record of any coercion, control of, or fear on the part of the Applicant’s mother or brother.
The Applicant was questioned regarding his two criminal charges which arose from separate incidents in June 2016, at which time he was 17 years of age, and a child at law. There were some differences between his recollection and the facts stated in the Court of Appeal.
The Applicant was questioned regarding offences committed in October 2017 of possession and uttering a counterfeit $100 note, and his statement at paragraph 27 of Exhibit A12 wherein he stated:
I didn’t realise at these times that the money was counterfeit – I was stoned both times. I had no experience with what counterfeit money looks like. I just thought it was normal money.
The Applicant admitted to Police that he knew the note was fake.[14]
[14] Exhibit R2 p 52.
The Applicant was then questioned regarding a further episode of uttering a counterfeit $50 note with large Chinese characters on it in February 2020. The staff member to whom the note was tendered told the Applicant that it was fake, and refused to return it when requested by the Applicant to do so. He denied adamantly denying involvement to the police as was recorded at Ex R2 p 64, and said that he had told them straight away that it was him, and claimed that he did not know the note was fake.
The Applicant was questioned regarding an episode in May 2019, when he was found in possession of eight clip-seal bags of cannabis and a set of scales after his car was intercepted by police. He was referred to his statement at Exhibit A 21 paragraph 21 wherein he stated:
Some of my friends at that time did sell cannabis. They had scales, which were the ones I was caught with in May 2017.
The Applicant said that he could not remember the episode.
The Applicant was then questioned regarding the offences of August 2021 which led to his visa cancellation and denied going to the robbery with another person, and denied robbing the victim[15].
[15] Transcript Day 1 p 49 line 35.
Closing submissions
In her closing submissions, Ms Battisson submitted that whilst the Applicant had served two custodial sentences, his sentences were nowhere near the maximum, and pointed to an instance where he had received a $1,000 fine for an offence which carried a maximum of 25 years.
The lower level sentences appeared to recognise that the Applicant was only ever involved with cannabis in small amounts for personal use, and supply to friends. His drug offending was limited to cannabis. He had never been charged or convicted of any offences relating to drug driving, supply of commercial quantity of drugs, robbery or other crimes committed to afford drugs. His offences were low level possession and minimum supply.
Nothing turned on his limited use of meth when he was 16 years old. He had admitted to using suboxone once in the community it made him feel sick and did not help him cope with his aunt’s death. The record of his use of suboxone in the IHMS records was a mistake, and the Queensland Corrective Service records said he had never used opioids.
Regarding the Applicant’s driving offences, he had no offences for speeding or drug driving or otherwise unsafe driving. His six unlicensed driving offences occurred in a context where he was a main carer in his community, and one of the most competent drivers, and his offending related to his cultural obligations to respect his elders and to convey people to appointments such as Centrelink. Whilst it was wrong to drive unlicensed, this did not show any antisocial behaviour.
Regarding family violence allegations, the Applicant had given sworn evidence that he had never laid a finger on his mother, and had not slapped his brother. He had never been charged with any crimes in relation to physical domestic violence, only breach of an order. There was no evidence of coercion or control or causing family members to be fearful. There was evidence that the Applicant’s brother was not fearful of him. The episodes relied upon did not satisfy the definition of family violence in the Direction, as there was no evidence of fear, coercion or control.
The Applicant’s most serious and problematic offences were those when he was 16 years old in 2016, and then in 2021. In the first episode he had said that he was clicking a lighter. This was described as a schoolyard argument that got out of control.
In the second episode, the Applicant admitted to having pretended to load a replica gun but denied pointing it at the head of the victim, and maintained that he had later apologised to the victim. As a consequence of his arrest he had been kept in a watchhouse with adults, and had not finished school.
Accounts of the robbery in August 2021 varied. Ms Battisson relied on the fact that the Applicant was described in police records as having “presented” a knife, rather than having “threatened” or “waved in his face”.
Regarding the prison fight referred to at Exhibit R2 p 145, Ms Battisson pointed out that it was the other prisoner who was taken to the detention unit, whereas the Applicant had been placed in a secure compound on a safety order.
Ms Battisson submitted that there were a number of protective factors concerning the Applicant. He had an employment history in the community and in gaol. He had done multiple courses to address addiction and other behaviours, and connected with QPASTT, which is the Queensland Service for Torture and Trauma. Importantly, he had tried to make sensible plans for the future, set out at paragraphs 68 to 70 of Exhibit A12, and which she addressed.
The Applicant had been in responsible positions whilst employed in prison, and even though he had been terminated initially, he was later re-engaged and moved up in responsibility. His most recent sentencing judge had referred to his two and a half years of employment and remarked that there was “some hope” for his rehabilitation. Her honour had also mentioned that he had support in the community and responsibilities to his family.
Ms Battisson referred to the evidence of the Applicant’s former boss who had described him as the best employee he had ever had, and he was prepared to offer him a second chance, and this was a significant protective factor. A former co-worker also gave evidence that he would be happy to work with him again. Ms Battisson also pointed to the numerous courses the Applicant had undertaken, and a number of which he had had to organise for himself. This demonstrated a motivation to learn better coping mechanisms.
The Applicant’s drug taking was trauma related, and detention related. Ms Battisson referred to evidence that drugs were available in detention, and that the Applicant had not used cannabis, alcohol, or drugs other than suboxone on one occasion whilst in detention. She submitted that he had been tested in a stressful environment in long term detention. He had returned a clean urine sample on 26 July 2021, but had returned a positive test for cannabis on 22 June 2018. He had completed 240 hours of community service, although he did have to be followed up in relation to that, as he had difficulties owing to work commitments.
Regarding future living arrangements, both he and his mother had given evidence that they were planning to move away from negative influences.
Regarding risk to the community, the Applicant had not physically hurt anyone, and the risk of harm was not so great as to be unacceptable. There was no evidence that he was continuing to smoke cannabis, or abusing other drugs in a stressful environment. The Applicant now understood that driving without a licence is unacceptable. He had matured since the juvenile school related offences and would not be in that position again. His robbery offence stemmed from a cash in hand informal work arrangement, and he now had a formal job offer.
Whilst the protection of the Australian community weighed against the Applicant it did not do so determinatively.
Regarding family violence, Ms Battisson submitted that there was no family violence to be considered under Direction 99 for the reasons previously discussed. There was no evidence of physical harm or of coercion, control, or fear. Family violence should be given no weight.
In relation to the strength nature and duration of the Applicant’s ties to Australia, Ms Battisson relied upon the Applicant’s SFIC at paragraphs 21 to 27. A number of people were prepared to assist the Applicant to re-enter the community. He had work, family, and social and sporting ties. His family ties weighed strongly in his favour.
The interests of minor children weighed slightly in his favour.
Regarding the expectations of the Australian community, Ms Battisson referred to the length of time he had spent in the Australian community, which included his formative years, and that he had started using drugs in Australia. He was the main carer for his mother and brother. Community expectations weighed against the Applicant but not determinatively.
Turning to the legal consequences of the decision, Ms Battisson submitted that the consequence of an adverse decision would be an extended stay of indefinite duration in detention while the evidentiary difficulties establishing his Eritrean citizenship were addressed.
The Applicant claimed protection as an Eritrean man of fighting age and Kumana heritage. He would suffer discrimination which might include enforced disappearance, extrajudicial killing, and forced conscription. His refusal to be conscripted and forced to fight would result in imprisonment and torture. The United Nations had urged all refoulement to Eritrea to end. The High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (‘Plaintiff M1’) did not mandate referral. The Applicant’s claims were clearly made. Reference was made to ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9]. There was much more evidence in the present case than there was in Plaintiff M1. Having made such a finding, the Tribunal should then consider indefinite detention, or more fully consider the prospects of indefinite detention if there is a non-refoulement obligation found.
Ms Battisson referred the Tribunal to CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 at [61] – [62]. Ms Battisson submitted that the same character requirements would apply in respect of a Protection visa. There was no evidence that the Minister would regard a Protection visa application any differently from the present, and there was a further factor in a Protection visa, being a risk of harm which might be affected by the duration.
The Tribunal must consider the facts as they currently prevail. Ms Battisson also referred to WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [124] where their Honours Kenny and Mortimer said:
It’s difficult to see how any delegate acting rationally and reasonably or the minister herself or himself acting rationally or reasonably could decide to grant a 45 visa to a person who (a) has had a very different visa cancelled – has had a different visa cancelled and (b) has applied for the cancellation to be revoked and has been unsuccessful, to grant or restore a visa in such circumstances would be to return a person to free and lawful residence in the Australian community, an outcome which under a different provision has been determined to pose an ‘unacceptable’ risk to the community.
Ms Battisson submitted that the legal consequences and separately practical consequences, weighed significantly in the Applicant’s favour for the revocation of the cancellation of his visa, and even determinatively so.
Ms Battisson submitted a range of reasons which made Eritrea a humanitarian disaster. The Applicant would be subject to significant discrimination. There was no impact on business interests. The Applicant’s mother’ as she was in need of great support. The Applicant had a long history of assisting her since he was 12. His brother H was on disability support pension and often absent for long periods.
It would be a disaster for his mother if his visa was not restored.
In his closing submissions, Mr West pointed out that the Applicant’s juvenile offending resulted in convictions and was therefore outside the scope of the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton').
The Applicant had committed multiple offences of a violent nature. Actual violence was not required by the Direction. The Applicant had offended using a fake gun and a flick knife.
The Applicant did not come across as particularly credible, and had sought to minimise his conduct in his evidence. He had initially denied methamphetamine use, but it emerged that he had used it three times when he was 16. He also made claims inconsistent with his guilty pleas. He claimed to be alone when he was convicted on the basis that he was in company. The Applicant’s production of the flick knife had caused the victim to retreat to a bedroom.
Mr West submitted that police records were to be preferred to the Applicant’s evidence. The Applicant’s mother’s evidence lent no support to his version of events.
There were two real instances of family violence, on 10 November 2017, and on 5 July 2018. Mr West referred the Tribunal to the police record which stated, ‘[t]he aggrieved and the named person left the address to go to the neighbour’s to call police’ and submitted that it was a “safe inference to draw that people don’t flee from their home to call police after there’s been an incident if they’re not feeling some level of fear or require some kind of police intervention”. This was evidence which could satisfy the fearful component of the definition.
The admitted violence on 10 November 2017 was sufficient to infer fear.
Mr West submitted that the seriousness of the Applicant’s offending was demonstrated by the sheer number of the Applicant’s offences and the number of terms of custodial imprisonment he had received, and the fact that the court found itself resorting to cumulative terms of imprisonment so as to satisfactorily demonstrate the severity of his offending behaviour.
The Applicant had caused physical, psychological and financial harm. The Applicant’s history of arming himself should be of particular concern. Further offending might result in catastrophic physical harm. The Applicant’s recent use of suboxone should be of concern. Exhibit A3 p 30 held evidence that he had been snorting suboxone three times a week.
The Applicant had previously been employed and living with his mother when he had offended. There was no real structure to his plan to move to another area. His proposed engagement with QPASSTT had not commenced, and his risk to the Australian community had not changed. The Applicant had been aware since at least January 2018 that further offending might result in return to Eritrea, and this had not curbed his offending. Primary consideration 1 should weigh very heavily in favour of non-revocation.
Regarding family violence, the Applicant’s own evidence was that he had committed several acts of violence against his brother. The Applicant had only completed eight hours of a self-directed family violence course. This was insufficient, and family violence should weigh very heavily against revocation.
Regarding the Applicant’s ties to Australia, it was accepted that he had lived here half his life, and during his formative years, but the weight of his ties should be tempered by the fact that he had spent no time contributing positively to the Australian community.
With respect to the Applicant’s broader family links, such as his aunts and uncles, the Tribunal could safely find that they would no doubt be upset by his removal, but there was really minimal evidence as to the impacts that non-revocation would have on them.
Mr West described the Applicant’s mother as “the big ticket item”. He submitted that the separate representations regarding the Applicant’s mother should properly be considered under paragraph 8.3 of the Direction.
It was clear that the Applicant’s mother had health concerns, but the Tribunal should be careful not to overstate her health issues. The Applicant’s mother was receiving appropriate support in handling her financial affairs from the Public Guardian. She was not residing with no oversight at all, and she had quite strong support from the local Kunama community.
Mr West submitted that the Applicant’s ties to Australia weighed in favour of revocation, but not determinatively.
With respect to the interests of minor children there was no real evidence so as to allow the Tribunal to afford any weight to this consideration.
Community expectations should weigh very heavily in favour of non-revocation.
Regarding the legal consequences of the decision, there was a distinction between what is a protection finding as defined under the Act in 197C, paragraphs 4 through 6, and what is a finding that the Applicant is owed non-refoulement obligations. Even if the Tribunal were to make a finding that the Applicant were owed non-refoulement obligations, in the absence of a protection finding, there was nothing at law that prevented the Applicant’s removal.
The Tribunal was working to a tight statutory timeframe which is not well-designed to be examining complex non-refoulement claims, and consideration of those claims should be deferred having regard to the fact that he would apply for a protection visa if that was his only option. The Applicant would not be liable to be removed while that application was on foot.
The second and perhaps more important reason was that the Applicant’s claims were quite complex, and the available evidence just did not allow the Tribunal to determine them.
There had been no conclusive response to the Applicant’s enquiry to the Eritrean embassy.
The Applicant’s claim that he was stateless had muddied the waters to the extent that the Tribunal could not consider those claims should he be returned to Eritrea. Were he found to be stateless, a third receiving country might be located. The Applicant would remain in detention while a protection visa was determined. Detention was the result of an administrative process the Applicant had engaged. Were the Applicant to abstain from drugs, and undertake further courses, his prospects of a visa might be enhanced because he was a reduced risk. There was potentially a lot of water to go under the bridge before a decision would be made. Time spent in detention should weigh minimally.
Regarding impediments if returned, Mr West submitted that the Applicant would face real difficulty if returned to Eritrea, but there were factors which would make his reintegration easier. He had remained in touch with the culture through his mother, and he was young and generally in good health.
Regarding impact on victims, the Applicant’s mother had been silent on his offending, and might be exposing herself to further offending behaviour.
Ms Battisson responded saying that the Applicant’s mother had diminished capacity to give evidence and was scared of his brother. The Applicant was entrenched in the Kunama culture, as opposed to Eritrean. Delays in protection visas could be of the order of nine years, and this would mean time in detention. The Applicant had been unsure if he would seek a protection visa.
The Kunama community could not adequately support the Applicant’s mother, and the absence of a Kunama interpreter meant it was unclear how the Public Guardian was communicating with her.
Credibility
During the course of his written and oral evidence the Applicant had made statements contradictory of what he had previously told police, and what had been submitted to courts on his behalf, no doubt on his instructions. For instance, his statement at paragraph 27 of Ex 12A regarding the events of 12 October 2017 that he thought the counterfeit money was “normal money” contradicted what he had told police. Further, the Applicant’s evidence contradicted what was recorded by police regarding the episode of February 2020. The Applicant even went so far as to deny robbing his most recent victim at all, and further denied doing so in company. If the Applicant is to be believed, IHMS records which noted that he was using suboxone three times a week were erroneous, and the Tribunal considers this to be highly unlikely.
The Tribunal is not satisfied that the Applicant has been truthful in his evidence, and his evidence is rejected save to the extent that it is expressly or implicitly accepted in these reasons.
CONSIDERATION
The Tribunal now turns to the specific considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(e)The nature and seriousness of the non-citizen’s conduct to date; and
(f)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia
Sub-paragraph (a) of paragraph 8.1.1(1)
The Applicant has committed offences including burglary while armed and in company, and armed robbery. These are offences of a violent nature involving use of a replica gun, or a flick knife, although in neither instance was actual physical violence involved. In particular, there is no evidence of any attempt by the Applicant to strike the armed robbery victim with the knife. It is nevertheless accepted that these offences are very serious, and undoubtedly caused great fear on the part of his victims. The Applicant also has six convictions for disqualified driving. Whilst is was submitted that the Applicant’s driving history did not include offences for speeding or drug driving or otherwise unsafe driving, and occurred in the context of social and cultural courtesy, the fact remains that the Applicant demonstrated contempt for the law in his continued breaches of his driving obligations. The Applicant’s drug offences relate only to cannabis, and low level possession and non-commercial supply to friends. They remain however, serious offences.
Sub-paragraph (a) of paragraph 8.1.1(1) weighs heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1)
The Applicant has committed the offence of Assault or obstruct a police officer. This occurred when he ran from police and refused to stop when called upon do to so. As an offence against government officials, this must weigh heavily against revocation.
Sub-paragraph (b) of paragraph 8.1.1(1) weighs heavily against revocation.
Sub-paragraph (c) of paragraph 8.1.1(1)
The Applicant has been sentenced to periods of imprisonment of up to 2 years and 6 months to be served cumulatively with his prior sentence of six months. His total sentences amount to four years and two months.
In a sentencing hierarchy where imprisonment is a last resort, these sentences are viewed very seriously.
Sub-paragraph (c) of paragraph 8.1.1(1) weighs heavily against revocation.
Sub-paragraph (d) of paragraph 8.1.1(1)
The Applicant has offended on two occasions in 2016, two in 2017, three in 2018, two in 2019, three in 2020, and eleven in 2021. The Tribunal regards this as very frequent offending. His offences whilst armed have gone from use of a replica gun whilst a child, to a flick knife as an adult, which the Tribunal regards as a very dangerous weapon. The Tribunal views as particularly concerning that the Applicant would commit burglary while armed and in company even while he was electronically monitored. The Tribunal considers there has been a significant increase in the seriousness of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) weighs heavily against revocation.
Sub-paragraph (e) of paragraph 8.1.1(1)
There is no evidence before the Tribunal of the cumulative effect of the Applicant’s offending.
Sub-paragraph (e) of paragraph 8.1.1(1) is given neutral weight.
Sub-paragraph (f) of paragraph 8.1.1(1)
There is no relevant evidence before the Tribunal regarding this consideration.
Sub-paragraph (f) of paragraph 8.1.1(1) is given neutral weight.
Sub-paragraph (g) of paragraph 8.1.1(1)
There is no relevant evidence before the Tribunal regarding this consideration.
Sub-paragraph (g) of paragraph 8.1.1(1) is given neutral weight.
Sub-paragraph (h) of paragraph 8.1.1(1)
There is no relevant evidence before the Tribunal regarding this consideration.
Sub-paragraph (h) of paragraph 8.1.1(1) is given neutral weight.
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Paragraph 8.1.2(2)(a) The nature of the harm
The nature of the harm likely to flow from further similar offending by the Applicant includes financial harm likely to flow from further dishonesty offences, and potentially serious physical harm, should the applicant commit further violent offences whilst armed with a flick knife. Although there is no evidence of any past attempt by the Applicant to actually use a flick knife to wound a victim, he has shown something of a proclivity for using weapons, and the Tribunal is concerned that in the course of an active crime involving a knife, things can happen quickly and unexpectedly. The Applicant’s conduct could also lead to significant psychological harm suffered directly by a victim, and indirectly by the victim’s friends and family.
Paragraph 8.1.2(2)(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal notes that the Applicant has offended on many occasions since being assessed as a low to moderate risk of reoffending by Dr Sara Jones, (Clinical Psychologist).[16]
[16] Exhibit R2 p 28.
The Tribunal does not accept that records of the Applicant’s suboxone use whilst in detention are not accurate, and the Tribunal is concerned that as recently as 17 August 2023 he was recorded as using suboxone three times a week.[17] There is however no evidence that he is smoking cannabis any more, and that is the illicit substance which has been associated with his offending.
[17]Exhibit A3 p 4.
The Tribunal is concerned that the Applicant could commit a very serious criminal offence whilst on parole, and subject to electronic monitoring. In evidence before the Tribunal the Applicant disputed numerous facts which had formed the basis for his sentencing, and this raises concerns not only about his truthfulness, but also his acceptance and acknowledgement of his past conduct, even though he appears to have undertaken numerous courses whilst in detention.
Whilst the Applicant’s work history in prison is not without blemish, it is accepted that he did hold positions of responsibility whilst in prison, and this perhaps reflects the “hope of rehabilitation” perceived by her Honour Judge Loury. The Tribunal notes that the Applicant was previously described as a “model prisoner” by a sentencing judge, and also complied with bail conditions over a period of 18 months, and completed 240 hours of community service.
It is true that the Applicant has the opportunity to return to his past employment and living with his mother and brother, however these factors have not provided any protection against serious offending, notwithstanding the needs of his mother and brother. Whilst the Applicant and his mother have given evidence that they intend to relocate away from bad influences, finding suitable alternative government housing may be easier said than done. His past efforts at recognizing and avoiding negative influences have failed, and it is difficult to discern present factors which are cause for increased optimism that he can do so in the future.
If the Applicant is to be returned to the community, he will for the time being at least, be living in the same circumstances he was in when he previously offended, and his past efforts at avoiding negative influences failed.
There has however been some judicial optimism of his prospects of rehabilitation.
There is reason to believe that the Applicant has not used cannabis for some time, and this suggests that he may have made some progress in the path to rehabilitation. He appears motivated to reform, and, it is clear that his drug taking is trauma related. His planned engagement with QPASST may prove to be of substantial benefit to him.
The Applicant is likely a low to moderate risk of reoffending at present. However, this may reduce with appropriate trauma counselling.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
7The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
8This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
9In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii) efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Tribunal does not consider that there is sufficient evidence before it to allow it to safely conclude that the alleged victims of his family violence were coerced, controlled, or fearful as provided in the definition of family violence provided in the Direction. In the circumstances, consideration of Primary consideration 2 is not enlivened.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant and is given neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 8.3(1) of the Direction requires consideration of any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia. More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:
(a)The length of time the non-citizen has resided in the Australian community, noting that:
(i) Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant’s immediate family consists of his mother and brother, both of whom are also refugees from Eritrea. The Applicant has no children of his own.
The Applicant’s mother suffers deafness, and numerous other ailments, including PTSD, depression, and is under the protection of the Public Guardian for her financial affairs. She suffered a head injury during a bombing in Eritrea, and was left with limited cognition. She is in receipt of the Disability Support Pension (DSP). She does not speak English, and is uneducated. The Applicant’s brother is intellectually impaired and also in receipt of the DSP. The Applicant has effectively been the head of the household since he was 12 years old, and it is accepted that both his mother and brother have been dependent on him for considerable support, particularly because he is the only one with English fluency.
The Applicant has lived in Australia since he was 12 years old, and he is now 24. He spent his formative years in Australia, and during that time he held employment for two and a half years. He has been involved in PCYC and soccer, and can be seen as having social and community ties arising from that, and as having contributed to the community including his care for his mother and brother. The Applicant also has ties through his past employment, and the strength of those ties is reflected in his current offer of employment.
It is accepted that many of his tribesmen live nearby, and that he has played a supportive role for them through his fluency in English, and his ability to drive a motor vehicle.
Ms Battisson submitted that the impact on the Applicant’s mother of his deportation would be disastrous, and the Tribunal accepts this submission.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the Visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(b)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(c)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(d)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(e)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(f)whether there are other persons who already fulfil a parental role in relation to the child;
(g)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(h)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(i)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is only very scant evidence before the Tribunal regarding any claimed impact on a child, and that is found at paragraph 13 of Exhibit A10:
Mv daughter [name redacted and referred to as D]. knows who [the Applicant] is. The Applicant used to visit us prior to him being in jail. When we visit [Applicant’s mother] D asks after [him]. D knows that I get upset and the Applicant’s other family members get upset about [the Applicant] being in detention or the prospects that he may be sent to Eritrea.
The evidence before the Tribunal is insufficient to enable it to form a view as to the impact on D of this decision.
Conclusion Primary Consideration 4
Primary Consideration 4 is given neutral weight.
Primary Consideration 5: Expectations Of The Australian Community
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that 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 he 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.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(j)acts of family violence; or
(k)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(l)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(m)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(n)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(o)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (‘FYBR’) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[18]
[18] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Evidence before the Tribunal establishes that the Applicant has been convicted of an offence relevant under paragraph 8.5(2)(d) in that he Assaulted or obstructed a police officer. However, his actual conduct which attracted the charge was running away from police, and this can be seen as low level offending.
In determining the weight to be allocated to this consideration, the Tribunal has had regard to Principle 5.2(5) as this Applicant had lived in Australia from a very young age, and is entitled to an increased level of tolerance having regard to the fact that he spent his formative years in Australia.
Analysis – Allocation of Weight to this Primary Consideration 5
Conclusion: Primary Consideration 5
Primary consideration 5 weighs moderately against revocation.
PARAGRAPH 9: OTHER CONSIDERATIONS
Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Impact on Australian business interests.
Other Consideration (a): Legal consequences of the decision
Regarding the legal consequences of an adverse decision in this matter, the Applicant is an unlawful non-citizen liable to detention under s. 198 and is liable to removal irrespective of Australia’s non-refoulement obligations in accordance with s. 197.
Were he to make a valid application for a protection visa he would not be removed while that application was under consideration. Moreover if a protection finding were made during the course of consideration of that application, he would not be removed to his place of origin even if the protection visa application ultimately failed, or was granted and then cancelled.
Otherwise, barring a grant by the Minister of a visa in the public interest under s. 195A, or a residence determination under s. 197AB the Applicant would remain in detention until resettled in a third country or he requested voluntary removal.
There is no evidence before the Tribunal that the Applicant is a citizen of any country other than Eritrea. Throughout all of the Applicant’s dealings with the Australian government, he has been identified as an Eritrean citizen, and this accords with the submission made at paragraph 47 of Exhibit A(1)(b). The Tribunal is satisfied that the Applicant is a citizen of Eritrea, and so finds.
However that is not to say that the government of Eritrea will be in accord with this view. Ms Battisson raised concerns of substantial evidentiary difficulties in establishing the Applicant’s citizenship to the satisfaction of Eritrean authorities, and expressed concern that the Applicant would face a substantial and indefinite period of detention while this was being attended to.
The Tribunal accepts that there is no documentary evidence of the Applicant’s citizenship, and even the very registration of his birth is a matter of uncertainty. Efforts to have the Eritrean Embassy clarify his status have thus far failed.
Ms Battisson referred the Tribunal to various constitutional and statutory provisions which appeared to put possibly insurmountable hurdles in the Applicant’s path to establishing his citizenship under Eritrean law. Ms Battisson set out what she described as s. 2 of the Eritrean Nationality Proclamation (No.21/1992), however, no source for this was specifically cited.
Ms Battisson also provided hyperlinks to UNHCR websites with publication dates of 3 September 2009, and 16 September 2013. These sites both carried the disclaimer:
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Whilst the Tribunal does not accept the information contained in these sites as an authoritative statement of the present constitution and applicable laws, it is clear from the document from the Consulate of the State of Eritrea, that the Applicant may find it difficult, and perhaps impossible to satisfy the evidentiary requirements in order to have a birth certificate issued.
If the original decision is affirmed, the issue of the Applicant’s citizenship would clearly have to be resolved to the satisfaction of the Eritrean government. There is no evidence before the Tribunal as to the mechanisms that the Australian government may or may not have at its disposal to achieve swift clarification of this issue.
It was submitted that the Applicant was de facto stateless therefore, and a decision adverse to the Applicant would result in indefinite detention. Ms Battisson also submitted that the Applicant had a well founded fear of persecution if returned, and claimed protection as an Eritrean man of fighting age and of Kumana heritage, he would be subject to discrimination. Discrimination could include extra-judicial killings, and forced long term conscription. His refusal to be conscripted and forced to fight would mean he would face imprisonment and torture. The United Nations had urged all refoulement of Eritreans to end.
Ms Battisson submitted that Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 did not mandate deferral of a claim for protection.
There was no realistic prospect of a protection visa being granted, and that availability of the opportunity to apply should not lessen the weight to be given to this consideration: CRRN v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1050 at [61] – [62]
Ms Battisson submitted that this should weigh significantly in favour of revocation.
The issues raised on behalf of the Applicant are clearly significant and warrant the closest scrutiny, as they do raise the question of Australia’s international non-refoulement obligations. However, in order for this Tribunal to make a determination as to whether or not the Applicant is in fact de facto stateless the Tribunal would require a clear and current statement of all relative law from an authoritative source, and it does not have that at present. Further, the expedited nature of this review prevents postponement for the gathering of satisfactory expert and other evidence in this regard.
The Tribunal notes that at this juncture, the Applicant has made no application for a protection visa, and it remains open to him to do so. Moreover, no finding has been made that the Applicant is owed protection. This distinguishes the current case from CRRN v Minister for Immigration, Citizenship, and Multicultural Affairs (2023) FCA 1050.
It is not for the Tribunal to speculate on the outcome of any future visa application that the Applicant may elect to make or not make.[19] As was observed in Ayoub v Minister for Immigration and Border Protection[20], future exercises of discretion and statutory power are to be resolved as and when they arise.
[19] Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33]; MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150].
[20] [2015] FCAFC 83.
The decision in RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[21] records at paragraph [32]:
As is apparent from the extracts from the reasons previously set out, the Tribunal referred expressly to the decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (“Ali”) and DOB18 v Minister for Home Affairs [2018] FCA 1523 (“DOB18”). In DOB18 Griffiths J referred to a number of other cases in which Flick J’s reasoning in Ali has been adopted and applied. Those decisions show that the course followed by the Tribunal in this case was open to it and that it was not required to speculate about future possibilities with respect to future visa applications or the duration of any detention to which the appellant may be subjected.
[21] [2022] FCAFC 27 at [32].
As was observed by Mr West, during time in detention an applicant might undertake further courses aimed at rehabilitation, and which might well enhance the prospects of its success. To this the Tribunal would add that they may also provide a series of negative blood tests demonstrating cessation of drug use. On the other hand, they might be found to have used illicit substances, and dash their prospects.
An election to make a visa application will have the unavoidable consequence of detention pending its determination, and that is lawful: Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [88]. It might be observed that the prospect of time in detention is a matter for an applicant to weigh up at the time of application, even when requesting revocation of a mandatory cancellation.
Considering the unsatisfactory state of the evidence in this case, the Tribunal considers that the most prudent course for it to take regarding the Applicant’s non-refoulement claims is that contemplated by the majority in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, and the Direction itself.
The Tribunal therefore makes no finding as to whether non-refoulement obligations are owed by Australia to the Applicant, or whether removing the Applicant to Eritrea would be in breach of those obligations.
The issues raised by the Applicant are best addressed in the context of the specific mechanisms provided by the Parliament to consider such matters if and when the Applicant makes application for a protection visa.
Conclusion: (a) Legal consequences of the decision
Other consideration (a) weighs neutrally.
Other Consideration (b): Extent of impediments if removed
The Applicant is presently aged about 24. It has not been submitted that he suffers any health issues which would impede his return to, and assimilation in Eritrean society.
As a healthy man of fighting age, the Applicant may face forced conscription in Eritrea.
It has not been submitted that he will face any language barriers there. He may face substantial cultural barriers in consequence of his ethnicity, and be mistreated and persecuted in consequence.
It has been submitted that he has no family there, and the Tribunal accepts this. It is clear he has no friends or network that he can call upon for assistance. His lack of documentation may also impact his ability to gain employment
The Applicant’s lack of documentation may make it very difficult for him to engage whatever is available in terms of social, medical and economic support if indeed such supports exist at all.
Conclusion: (b) Extent of impediments if removed.
Other consideration (b) weighs very heavily in favour of revocation.
Other consideration (c): Impact on victims
There is no relevant evidence before the Tribunal.
Conclusion (c) Impact on victims.
Other consideration (c) is given neutral weight.
Other consideration (d) Impact on Australian business interests
There is no relevant evidence before the Tribunal.
Conclusion other consideration (d) Impact on Australian business interests.
Other consideration (d) is given neutral weight.
Conclusion: Other considerations
Overall, other considerations weigh very heavily in favour of revocation.
Additional other consideration: Special circumstances of the Applicant’s mother
The Tribunal accepts the circumstances of the mother as submitted, but considers that these are matters properly dealt with under Primary consideration 3. The Tribunal has taken these circumstances into consideration in determining the weight to be given to Primary Consideration 3.
Conclusion Additional other consideration: Special circumstances of the Applicant’s mother
This additional other consideration has been taken into account in determining the weight to be given to Primary consideration 3, and no further weight is attributed.
Additional other consideration: Breach of international obligations.
The Tribunal is not satisfied that Australia will be in breach of any of its international obligations in consequence of this decision.
Conclusion additional other consideration: Breach of international obligations
This additional other consideration is given neutral weight.
Conclusion Other considerations
Overall other considerations weigh heavily in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the power afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal is required to weigh all of the Considerations in accordance with the Direction.
In attributing weight to the various considerations, the Tribunal has, in accordance with Principle 5(2)(5), afforded the Applicant a higher level of tolerance having regard to the fact that he has lived in Australia from a very young age, and also having regard to the length of time he has spent in the community. These factors, coupled with the devastating consequences for his mother were he to be deported, have been determinative of the matter.
The Tribunal finds as follows:
·Primary Consideration 1 weighs heavily in favour of non-revocation.
·Primary Consideration 2 weighs neutrally.
·Primary Consideration 3 weighs very heavily in favour of revocation;
·Primary Consideration 4 weighs neutrally
·Primary Consideration 5 weighs moderately in favour of non-revocation and
·Other considerations weigh heavily in favour of revocation.
The Tribunal finds that the combined weight of Primary Considerations 1 and 5 are insufficient to outweigh the combined weights allocated to Primary Consideration 3, together with the Other Considerations.
In the circumstances, the Tribunal finds that there is another reason why the mandatory visa cancellation should be revoked.
The Tribunal therefore exercises the discretion in s 501CA(4) to do so.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 10 August 2023 and substitutes it with a decision to revoke the cancellation of the Applicant's Class XB Subclass 200 Refugee visa.
I certify that the preceding 204 (two hundred and four) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.....[sgn]...................................................................
Associate
Dated: 7 November 2023
Date(s) of hearing: 17th & 18th October 2023 Counsel for the Applicant: Alison Battisson Solicitors for the Applicant: Human Rights for All Counsel for the Respondent: Chris West Solicitors for the Respondent: Sparke Helmore
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