Suleman and Minister for Home Affairs (Migration)

[2018] AATA 2310

Suleman and Minister for Home Affairs (Migration) [2018] AATA 2310 (13 July 2018)

Division:GENERAL DIVISION

File Number:           2018/2473

Re:Toni Taban Suleman

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:13 July 2018

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Theodore Tavoularis

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – where visa was cancelled under s 501(3A) because Applicant did not pass the character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No 65 – where Applicant has committed more than 100 offences – where Australia owes international non-refoulement obligations to Applicant – considerations outweighed by protection of the Australian community and community expectations – decision under review affirmed

PRACTICE AND PROCEDURE – Migration Act 1953 (Cth) – s 500(6H) – two day rule – scope of oral submissions and evidence allowed from the Applicant

LEGISLATION

Migration Act 1953 (Cth), ss 499, 500, 501, 501CA

CASES

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Ministerial Direction No 65
Macquarie Online Dictionary (2017)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

13 July 2018

INTRODUCTION

1. Mr Toni Suleman (“the Applicant”) fled his native Sudan while a young child and eventually immigrated to Australia. While he has been here, he has committed a number of criminal offences, which have led to a delegate of the Minister for Home Affairs (“the Respondent”) deciding that his visa should be cancelled pursuant to s 501(3A) of the Migration Act 1953 (Cth) (“the Act”).

2. Seeking to remain in Australia, the Applicant applied for the cancellation of his visa to be revoked pursuant to s 501CA of the Act. In a decision dated 1 May 2018, the Respondent refused to revoke the cancellation of the Applicant’s visa.[1] It is that decision which the Applicant wishes to be reviewed by the Tribunal.

   [1] Exhibit 2, G-Documents, G 02, p 9.

   PRELIMINARY MATTERS

3. The hearing of this matter was vexed by the effect of s 500(6H) of the Act. To understand its effect, it is helpful to set it out in full:

   (6H)  If:

   (a)  an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and

   (b)  the decision relates to a person in the migration zone;

   the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

4. It is clear that both paragraphs (a) and (b) of this provision apply in the present case. Consequently, I must not have regard to any information presented orally in support of the Applicant’s case unless it was set out in a written statement given to the Respondent at least two business days before the hearing of this matter. The difficulty in the present case is that the Applicant neither provided written submissions, statements, nor any other evidence in support of his case during the course of the proceedings before the Tribunal.

5. The phrase “information presented orally” should be viewed broadly; it is not limited to the oral evidence of witnesses. The Macquarie Dictionary defines “information” as “knowledge communicated or received concerning some fact or circumstance” and “knowledge on various subjects, however acquired”. It seems to me that this extends beyond the mere telling of facts in oral evidence. Rather, it should be construed as including submissions relating to how those facts apply to the law (and vice versa) in a given set of circumstances. I take the phrase “in support of the person’s case” to thus refer not only to oral evidence in chief by an applicant or a witness called by an applicant, but also to written submissions or grounds of submission raised or made by an applicant orally at the hearing.

6. This interpretation is understandably problematic; it would lead, in certain cases, to the total inability of applicants to give evidence or make submissions in their own cases. The scope of the restriction on “information presented orally” must therefore be tempered by a broad reading of the phrase “information… set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review”. I consider that while this imposes a hard limit on the latest at which an applicant can provide the written statement, it imposes no such limit on how far back one can look for the written statement. Indeed, it may be reasonable for the Tribunal to look back far in the past – at the very least to written statements provided to the Minister before the matter ever reaches the Tribunal – so long as they can be considered “in relation to the decision under review”.

7. Similarly, as “information” should be read broadly when it relates to that which is “presented orally”, so too should it be read broadly when it is “set out in a written statement”. I recognise that a “written statement” can take many forms. It is not limited to witness statements or statements of facts, issues and contentions. Rather, it should be informed by the definition of “statement” in the Macquarie Dictionary: “a communication or declaration in speech or writing setting forth facts, particulars, etc.”. Of course, this must be limited to communications or declarations made in writing setting forth facts, particulars or submissions. I therefore find that “written statement” relates to any written communication or declaration provided to the Respondent, so long as it is in writing and so long that it relates to the decision under review.

8. Thus, “information… set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review” is not limited to specific submissions or witness statements provided by an applicant to the Minister and the Tribunal during the course of the Tribunal’s proceedings. Rather, it extends to statements or submissions provided to the Minister throughout the process of the Minister or his delegate considering the cancellation and subsequently the revocation of that applicant’s visa. It further extends to statements made in application forms – especially the application to the Tribunal. I should make clear that this list is non-exhaustive and requires an examination of the particular documents which purportedly comprise written statements.

9. While on its face, the limit on “information presented orally” may seem harsh, it will seldom take on that character – especially when the Tribunal takes into account its obligations to provide natural justice and procedural fairness to an applicant. A better reading of s 500(6H) must be that it is a protection for the Respondent from an applicant raising new arguments or calling new witnesses or witnesses giving evidence in fresh evidence, without giving the Respondent at least two days’ forewarning. This reading is supported by s 500(6J), which precludes the Tribunal from taking into account any documents provided to it and the Respondent fewer than two business days before the hearing.

10. The Respondent is bound by s 500(6F)(c)(ii) of the Act to provide to the Tribunal any document “relevant to the making of the decision”. In accordance with that obligation, the Respondent has provided to the Tribunal Exhibit 2 – the G-Documents. Importantly, these documents contain several written statements by the Applicant,[2] as well as a statement by his sister.[3] They also disclose that the Applicant has provided written submissions to the Minister in the form of a “Personal Circumstances Form”, provided in response to the notice to consider visa cancellation which had been sent to the Applicant.[4] His then-representatives also provided submissions dated 5 March 2018 regarding the request for revocation of the Applicant’s visa.[5] On the grounds of these documents, I determined that the Applicant and his sister each were able to give oral evidence which would be considered by the Tribunal, and that oral submissions would also be allowed.

    [2] Exhibit 2, G-Documents, G02, pp 78-80; G02, pp 98-100.

    [3] Ibid, G02, p 101.

    [4] Ibid, G02, pp 66-77.

    [5] Ibid, G02, pp 88-94.

11. I am troubled by the fact that the Respondent in this matter was at the hearing amenable to the Applicant not giving any submissions or evidence pursuant to the effects of s 500(6H), yet wanted others who had provided witness statements to the Minister prior to the Tribunal proceedings to give evidence in this matter. At the hearing, I determined that such a course of action would be wholly inappropriate. On the basis of my above analysis, I determined that it was appropriate for the Applicant and his witnesses to give oral evidence and submissions. As mentioned above, the hearing proceeded on this basis.

    ISSUES FOR CONSIDERATION

12. The issue lying at the heart of this cases is whether the discretion contained in s 501CA(4) of the Act should be exercised, such that the cancellation of the Applicant’s visa is revoked. In essence, there are two issues to be considered in determining whether this discretion should be exercised:[6]

    (a)Whether the Applicant passes the “Character Test”, contained in s 501 of the Act; and

    (b)Whether there is another reason why the mandatory visa cancellation decision should be revoked.

    [6] Migration Act 1958 (Cth), s 501CA(4)(b).

13. Each of these issues will be addressed in turn.

    DOES THE APPLICANT FAIL THE CHARACTER TEST?

14. The “character test” is set out in s 501(6) of the Act, as augmented by s 501(7):

    (6) For the purposes of this section, a person does not pass the character test if:

    (a) the person has a substantial criminal record (as defined by subsection (7)); or

    …

    (7) For the purposes of the character test, a person has a substantial criminal record if:

    (a) the person has been sentenced to death; or

    (b) the person has been sentenced to imprisonment for life; or

    (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

    (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

    (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

    (f) the person has:

    (i) been found by a court to not be fit to plead, in relation to an offence; and

    (ii) the court has nonetheless found that on the evidence available the person committed the offence; and

    (iii) as a result, the person has been detained in a facility or institution.

15. While not the lengthiest criminal record I have seen in cases such as this, the Applicant’s criminal record nevertheless is sufficient for the Applicant to not pass the “character test”. On 28 June 2013, the Applicant was sentenced to 12 months’ imprisonment. Plainly, this sentence means the Applicant has a “substantial criminal record” pursuant to s 501(7)(c) of the Act. The Applicant therefore does not pass the “character test” under s 501(6)(a) of the Act. Accordingly, the Applicant cannot rely on s 501CA(4)(b)(i) as a ground on which to revoke the cancellation of his visa.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE APPLICANT’S VISA?

16. I will now turn to discussing whether there is another reason to revoke the cancellation.

17. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Ministerial Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    …a decision maker: must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [7]

    [7] The Direction, [7(1)(b)].

18. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

19. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

20. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

21. I note and emphasise 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:[8]

    Direction 65 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.[9]

    [8] [2018] FCA 594.

    [9] Ibid at [23].

22. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

    (iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;

    (vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

23. I will now turn to addressing these considerations.

    Primary Consideration A

24. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

25. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

    a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    b)    The sentence imposed by the courts for a crime or crimes;

    c)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    d)    The cumulative effect of repeated 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…

26. There can be little doubt that the Applicant is best-described as a repeated offender. His National Police Certificate runs to some 16 pages,[10] detailing at least 120 offences. The overwhelming majority of these offences are minor property offences – mostly stealing, dishonestly making off without paying, dishonestly obtaining property from another and dishonest application of property for another. The Applicant’s former representatives submitted that the Applicant’s offences were not sexual or violent.[11] While acknowledging that the Applicant had been convicted of occasioning actual bodily harm, the Police Prosecutor had submitted to the sentencing court that this offence was “at the lower range” of offending.[12] I am inclined to agree. However, while the offending itself is not particularly serious, the cumulative effect of his more than 120 offences undoubtedly is.

    [10] Exhibit 2, G-Documents, G02, pp 25-40.

    [11] Ibid, G02, p 89.

    [12] Ibid, G02, p 44.

27. The Applicant has been sentenced to terms of imprisonment some seven times,[13] for periods ranging from one month to two years.[14] The Respondent, appropriately in my view, drew the Tribunal’s attention to the case of Saleh and Minister for Immigration and Border Protection,[15] where Deputy President Kendall stated:

    Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of MrSaleh’s visa.[16]

    [13] I have not included in this number each individual offence for which the Applicant has been sentenced to terms of imprisonment; rather, I have counted each separate court date at which the Applicant was sentenced.

    [14] Exhibit 2, G-Documents, G02, pp 25-40.

    [15] [2017] AATA 367.

    [16] Ibid, [50].

28. Indeed, in the words of Senior Member Poljak in PNLB and Minister for Immigration and Border Protection:[17]

    Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[18]

    [17] [2018] AATA 162.

    [18] Ibid, [22].

1. Clearly, then, even though the overwhelming majority of the Applicant’s offending has been constituted of minor property crimes, it must ultimately be considered serious, particularly given its frequency and the fact that numerous terms of imprisonment have been imposed upon the Applicant, but they have not stopped his offending.

2. I further recognise that among the Applicant’s offences are several charges of breaching bail conditions and contravening lawful directions or requirements.[19] This illustrates a worrying lack of respect for lawful authority or court orders on the part of the Applicant.

   [19] Exhibit 2, G-Documents, G02, pp 25-40.

3. It is also worthwhile noting that this is not the first time the Applicant has been engaged in proceedings under s 501 of the Act. In 2013, he provided submissions as to why his visa should not be cancelled on character grounds.[20] After receiving these submissions, the Respondent gave to the Applicant a notice of decision not to cancel his visa under s 501. That notice dated 3 October 2013, however, included the following formal warning:

   While his visa not being cancelled, [sic] his behaviour is highly troubling and regardless of his visa subclass 202 background, this decision was generous and should not be his expectation in future, should his behaviour continue.

   Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.[21]

   [emphasis in the original]

   [20] Ibid, G02, pp 129-130.

   [21] Ibid, G02, p 118.

4. That letter further requested that the Applicant sign and return a statement reading:

   I, ______________ acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.[22]

   [emphasis in the original]

   [22] Ibid, G02, p 120.

5. The G-Documents do not disclose whether the Applicant in fact signed and returned that acknowledgement. However, in a “Personal Circumstances Form” completed by the Applicant on 18 August 2017, the Applicant acknowledged that he had previously received a warning from the Respondent.[23] Curiously, the date he said he received this warning was 17 December 2014. There is no such notice in the documents provided to the Tribunal, and the Applicant made no statement that he had received the notice dated        3 October 2013. However, this statement against interest contained in the “Personal Circumstances Form” is sufficient for me to be reasonably satisfied that the Applicant received at least one warning that his conduct could result in the cancellation of his visa. The fact he had made formal submissions regarding the possible cancellation of his visa on character grounds in 2013 also shows that he was aware his offending could lead to the cancellation of his visa. His offending continued regardless.

   [23] Ibid, G02, p 75.

6. In consideration of the above, while the circumstances of each individual offence committed by the Applicant are not particularly serious, they take on a serious nature when considered cumulatively. When one takes into account the fact that he received at least one official warning yet continued to offend unabated, and was sentenced to terms of imprisonment at least seven individual times, I can only come to the conclusion that the Applicant’s offending is very serious.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

7. Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:

   (i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)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 reoffending.

8. I do not consider that the nature of the harm to individuals in any one possible future offence to be especially great. The Applicant has not shown himself to be particularly disposed to violent, sexual or drug offending. Rather, most of his offending, as stated above, constituted various forms of stealing, theft or minor frauds. This kind of property offending lies at the lower end of the spectrum of harm to individuals or the Australian community. However, I am aware of the cumulative effect of the Applicant’s repeated offending, which, to my mind, transforms what would be a relatively minor quantum of harm in any one instance to a much broader harm.

9. This factor is exacerbated in my mind by the likelihood of the Applicant engaging in further criminal conduct. His previous lawyers submitted that the Applicant no longer drinks and that he has “long cut off ties to anti-social situations, people and places”.[24] I am sceptical of that point in circumstances where the Applicant has spent very limited time outside prison or immigration detention since he breached bail conditions in March and April 2016. His former lawyers relied on a statement by the Applicant and a psychiatric report of a     Mr Peter Perros, a forensic psychologist and clinical neuropsychologist.[25] However, the only report of Mr Perros which is available to the Tribunal is dated 31 August 2012.[26] As I understand it, this report was prepared for the sentencing of the Applicant by Magistrate Ryan in September 2012.[27] Since then, the Applicant has perpetrated – and been convicted of – dozens of offences. I simply must give that report minimal weight, especially where (1) it does not speak to the Applicant’s state now, some six years later; and (2) it is clear that in any event the Applicant did not take up Mr Perros’ suggestions that the Applicant seek support, guidance and counselling to minimise the risk of his reoffending.

   [24] Ibid, G02, p 90.

   [25] Ibid.

   [26] Ibid, G02, pp 83-87.

   [27] Ibid, G02, p 49.

10. I treat particularly seriously the fact that the Applicant breached his bail conditions a number of times. This is significant because, to my mind, it indicates that even when facing criminal trial and the risk of his bail being revoked – which it was in 2016, causing the Applicant to spend some 260 days in pre-trial detention[28] – his offending has continued unabated. While the Applicant has given evidence that he has turned a corner, I do not find this evidence convincing. His is not a case of occasional offending. Rather, he has consistently and frequently offended, in spite of official warnings of the consequences of his actions, and in spite of previously being imprisoned for the same kinds of offences.

    [28] Ibid, G02, p 42.

11. In these circumstances, I find the likelihood of the Applicant reoffending to be very high indeed. The consequence of this is that there is a very real risk that the Australian community will continue to suffer the effects of his offending were the Applicant to be allowed to remain in Australia. Not only that, but I find that while the nature of the harm incurred in any one instance may be limited, the high frequency at which the Applicant offends means that there is a not insubstantial risk to the Australian community should the Applicant reoffend.

    Conclusion: Primary Consideration A

12. In view of the above, I find that the Applicant’s conduct to date has been very serious, and that his risk of continuing in that pattern of offending should he be allowed to re-enter the Australian community is high. The upshot of this is that Primary Consideration A weighs heavily against the revocation of the cancellation of the Applicant’s visa.

    Primary Consideration B

13. The Applicant claims to have a child, born in 2012.[29] He claims that he did not initially know that he had a son but, after being informed that the child was his, has had regular contact with the child, even though the child lives in Sydney with his mother. The Respondent initially sought to challenge the paternity of the child, but seems to have withdrawn that claim. On the basis of the evidence before me, I find that the Applicant is the father of the child.

    [29] Ibid, G02, p 69.

14. Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of the child. This consideration only applies if the child is under 18 years old at the time of the decision.[30] Clearly, this applies in the present case.

    [30] See The Direction, [13.2(2)].

15. Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:

    ·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where… there have been long periods of absence, or limited meaningful contact;

    ·(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…;

    ·(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·(d) The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact;

    ·(e) Whether there are other persons who already fulfil a parental role in relation to the child.

16. The Applicant’s relationship with his child has been limited. His evidence is that the child’s mother has full custody of him,[31] and that he only actually found out about the son’s existence in 2014,[32] when the son was already two years old. During that period, while the Applicant claims to have tried to see the child every fortnight, he has spent a considerable period of time in prison. Even at present, is seems that the Applicant has been in prison or immigration detention almost continuously since mid-2016. In these circumstances, it is clear that the Applicant has had a very long period of absence from his son. During this period, it seems that the Applicant has maintained regular contact with his son via phone and internet video and messaging. That is to his credit. However, that is precisely the kind of relationship the Applicant would be able to maintain with his child, were his visa cancellation not revoked.

    [31] Ibid, G02, p 100.

    [32] Ibid, G02, p 73.

17. I have some doubts about whether the Applicant will be able to play a positive parental role into the future. As I have noted above, the risk of the Applicant reoffending is very high. In those circumstances, I find it hard to believe he would be able to be a positive role model for his son, were the Applicant to remain in Australia. I make this finding whilst aware of the fact that the Applicant’s son will turn 18 in approximately 12 years, and so would benefit from a father figure in his life during his formative years. However, I also recognise that having a negative role model in this period would also be damaging to the Applicant’s son. I consider this possible future impact to be of some significance, especially where the Applicant’s offending has already meant he has spent significant amounts of time in prison or immigration detention so far.

18. I note that the mother seems to be doing a good job raising the Applicant’s son on her own, and seems to be effectively playing the role of parent. As the Applicant both does not live in the same city as his son, and would be likely to remain in Brisbane should he be allowed to remain in Australia, I do not consider the likely effect of further separation to be great.

19. In consideration of the above, I find that Primary Consideration B weighs in favour of the revocation of the cancellation of the Applicant’s visa. However, its weight is only moderate; as the Applicant already only has limited contact with his son, I do not consider that the Applicant’s removal from Australia would stretch the bonds of their relationship that much further.

    Primary Consideration C

20. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect.

21. The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.

22. The real question with respect to this Primary Consideration C is surely whether the Australian community as whole would expect that a non-citizen with the Applicant’s history of offending should retain the right to remain in Australia.  Each offender’s criminal history and circumstances of offending is different. 

23. While the Applicant has only been offending since 2010, over that time he has committed well over 100 offences. I accept that most of these are minor property offences. Nevertheless, it would be unreasonable to assume that the Australian community would expect a person with such a weighty criminal history to be allowed to remain in Australia. I find that this is particularly the case in circumstances where the Applicant has committed some violent offences and has been repeatedly warned about his behaviour, but has continued on his path of offending unabated even by bail conditions.

24. In these circumstances, I find that Primary Consideration C weighs against the revocation of the cancellation of the Applicant’s visa.

    Other Considerations

25. There are five “other considerations” disclosed in the Direction:

    (f)International non-refoulement obligations;

    (g)Strength, nature and duration of ties;

    (h)Impact on Australian business interests;

    (i)Impact on victims;

    (j)Extent of impediments if removed.[33]

    [33] The Direction, [14(1)].

26. I will address each of these considerations, and their respective weights, in turn.

    Non-Refoulement Obligations

27. In oral submissions, the Respondent contended that it was entirely open for the Applicant to apply for a protection visa, and so Australia’s international non-refoulement obligations ought not be considered by the Tribunal. This submission is fundamentally wrong at law. The Full Court of the Federal Court determined in BCR16 v Minister for Immigration and Border Protection (“BCR16”),[34] per Bromberg and Mortimer JJ:

    48. …the circumstances in which consideration of non-refoulement occurs are quite different as between an exercise of the revocation power in s 501CA(4) and an exercise of power under s 65 of the Migration Act. The revocation power is discretionary, and the risk of significant harm to the appellant in Lebanon (whether for a Convention reason or otherwise, both may be relevant) would be a matter to be weighed in the balance by the Assistant Minister. That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.

    49. In contrast, both in terms of text and of authority, s 65 involves a qualitatively different exercise. In the task required by s 65, the Minister or his delegates are to be “satisfied” of certain criteria, some of which, if considered, may involve assessing the risk of harm to a visa applicant if returned to her or his country of nationality. The delegate, or the Minister, may or may not be “satisfied” to the requisite level about the existence of any such risk, or about its nature or quality. Non-satisfaction requires refusal of the visa. In the discretionary exercise for which s 501CA(4) calls, as we point out elsewhere in these reasons, the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.

    [34] [2017] FCAFC 96.

28. Their Honours concluded:

    The error could also be characterised as a failure to carry out the task required under s 501CA(4) which requires consideration of whether there is “another reason” to revoke the visa cancellation. The appellant submitted that where a person raises “another reason” under s 501CA(4)(b)(ii), part of the discharge of the Assistant Minister’s task is to consider the reason raised, on a correct understanding of the law.[35]

    [35] Ibid at [63].

29. The fact the Respondent did not make oral submissions about this case, and instead submitted that the Australian international non-refoulement obligations were best-determined via the process of the Applicant applying for a protection visa is curious and also happens to be contradicted by the Respondent’s own written submissions.[36] Were I to follow the Respondent’s oral submissions, BCR16 illustrates that I would have been led into error. In accordance with BCR16, and so as to not fall into the kind of error described therein, I will now turn to considering Australia’s international non-refoulement obligations to the Applicant.

    [36] Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), [60].

30. The Applicant was born in Sudan in 1993. His family is of the Dinka ethnic group, which is native to what is now South Sudan.[37] At various points in the past, he has stated that he was for some of his youth a child soldier,[38] however his accounts in that regard are uncorroborated.

    [37] Exhibit 2, G-Documents, G02, p 98.

    [38] See, e.g., ibid.

31. What is clear is that the Applicant fled Sudan with his mother and sisters first to Ethiopia and then Egypt and Kenya, and lived in refugee camps there. They eventually received Class XB Subclass 202 Global Special Humanitarian (Permanent) visas. While not a Protection visa, a person must be subject to substantial discrimination amounting to a gross violation of their human rights in their home country in order to receive this visa. The Respondent, in its Statement of Facts, Issues and Contentions, accepted that the Applicant arrived in Australia as a refugee.[39] It further noted that the Applicant is neither a citizen of Sudan nor South Sudan.[40] It may well be that the Applicant is at present technically stateless.

    [39] Exhibit 1, Respondent’s SFIC, [61].

    [40] Ibid, [61(d)].

32. However, the Respondent nevertheless argued that the Applicant has not “advanced any detailed probative evidence to support a finding that he faces serious or significant harm in South Sudan.”[41] While that may be the case, it must be noted the Respondent did not call any evidence to rebut the proposition that the Applicant will face serious harm if he is returned to either Sudan or South Sudan.

    [41] Ibid, [62(d)].

1. Instead, at the hearing, the Respondent tried to rebut the Applicant’s claimed refugee status claims via a vague line of questioning regarding whether the Applicant was born in Sudan in South Sudan. The Applicant, rightly in my view, pointed out that at the time he was born, South Sudan did not exist as a state, so he had to have been born in Sudan. The Respondent tried to shift this line to discussing which city the Applicant was born in. The Applicant accepted that he was born in Khartoum, the capital of Sudan. While this appears to be the answer the Respondent had hoped for, I have serious questions about its significance.

2. The Respondent has provided no evidence regarding non-refoulement issues were the Applicant to be sent to Sudan instead of South Sudan. I note that I have not had the benefit of Country Information Reports, which would normally have been provided by the respondent in a case such as this. I therefore have before me a dearth of objective evidence on the nature of the risk which the Applicant will be subject to, were he to be removed to Australia and returned to either Sudan or South Sudan.

3. I am left on the one hand with vague assertions from the Respondent that Australia may not owe any international non-refoulement obligations to the Applicant, and on the other the Applicant’s contentions that Australia does owe him non-refoulement obligations. While the Respondent’s assertions rely on the credibility of the Applicant’s evidence – and I do recognise there are inconsistencies in his evidence – the Applicant’s claims of being a refugee are at the very least supported by the fact he arrived in Australia on a visa designed for refugees, and by his repeated statements to that effect.

4. Weighing these claims against one another, I find on the balance that Australia does owe international non-refoulement obligations to the Applicant. In making this finding, I place particular weight on the fact the Applicant entered Australia on a visa designed for refugees, to whom Australia owes non-refoulement obligations. I further find that this factor weighs moderately in favour of the Applicant’s visa cancellation being revoked, although that must be tempered by the fact that it is Australian government policy not to return an applicant to whom it owes non-refoulement obligations to the country from which they fled as a refugee.[42]

   [42] See the Determination, [14.1(2)].

   Strength, nature and duration of ties

5. The Applicant arrived in Australia at the age of 12 and has lived here ever since. However, he started offending here at a relatively young age, and has continued to do so at a consistent pace since then. I recognise that his mother, (now former) step father and sisters live in Australia, as does his child. These ties are undoubtedly strong; that much is clear from the evidence of the Applicant’s sister at the hearing.

6. While the Applicant has strong ties to certain members of the Australian community, it is evident that his ties to the rest of the Australian community are much weaker. This is particularly the case where the Applicant has spent much of his adult life engaged in criminality and a long period of time in either prison or immigration detention.

7. Consequently, I find that although this factor weighs in favour of the revocation of the Applicant’s visa cancellation, it does not attract much weight.

   Impact on Australian business interests

8. There has been no evidence before the Tribunal regarding the extent of the impact on Australian business interests of the Applicant’s removal from Australia. Consequently, I find that this factor weighs neither in favour of nor against the revocation of the cancellation of his visa.

   Impact on victims

9. Again, there is no evidence before the Tribunal regarding the impact of allowing the Applicant to remain in Australia – or indeed of removing him from Australia – on the victims of his crimes. I therefore cannot say that this factor weighs in favour of or against the revocation of his visa.

   Extent of impediments if removed

10. The Respondent accepts that the Applicant would face impediments if he were to be removed from Australia.[43] Plainly, that is correct. The Applicant has not lived in Sudan or South Sudan in well over a decade, and the countries remains conflict-torn. However, he is a young and healthy man. It is unclear whether he speaks the local language. Ultimately, this consideration weighs in favour of revocation, too.

    [43] Exhibit 1, Respondent’s SFIC, [72].

    Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

11. In consideration of the above, Primary Considerations A and C, together, weigh very heavily against the revocation of the Applicant’s visa. These considerations must, of course, be weighed against Primary Consideration B, as well as Australia’s international non-refoulement obligations, the strength, nature and duration of the Applicant’s ties to Australia and the extent of impediments he would face if removed from Australia.

12. Ultimately, I find that the effect of Primary Considerations A and C outweighs that of Primary Consideration B and the other considerations. Simply, I am not convinced that the factors weighing in favour of revocation can overcome the fact that the Applicant has committed well over 100 criminal offences in a relatively short period of time, a pattern of offending that did not subside when the Applicant was on bail, or when he had previously been warned that future criminal behaviour could result in his visa being cancelled. I cannot believe that the Australian community would expect that a person with such a record would be allowed to keep their visa. Consequently, I find that there is not another reason why the cancellation of the Applicant’s visa should be revoked.

    CONCLUSION

13. The decision under review is affirmed.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 13 July 2018

Dates of hearing:	10-11 July 2018
Applicant:	In person
Advocate for the Respondent:	Mr C Brinley
Solicitors for the Respondent:	Clayton Utz