ToTK and Minister for Home Affairs (Migration)
[2018] AATA 4483
•3 December 2018
ToTK and Minister for Home Affairs (Migration) [2018] AATA 4483 (3 December 2018)
Division:General Division
File Number(s):2018/5358
Re:ToTK
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:3 December 2018
Place:Sydney
The delegate’s reviewable decision of 7 September 2018 is set aside.
In substitution for the 7 September 2018 decision, the 9 January 2018 decision to cancel the applicant’s Class XB Subclass 200 (Refugee) visa is revoked.
........................[sgd]..........................
Mr P W Taylor SC, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – Refugee visa – failure to pass character test – substantial criminal record – Ministerial Direction no. 65 applied – whether another reason why cancellation decision should be revoked – protection of the Australian community – community expectation – Australian ties – whether applicant will face hardship upon return to home country – risk of persecution on the basis of religion – likelihood of indefinite immigration detention – decision set aside and substituted
LEGISLATION
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Regulation 2017 (NSW)
Migration Act 1958 (Cth) ss 4, 5, 5H, 5J, 5M, 13 -15, 35A, 36, 40, 48, 48B, 65, 189, 195A, 196, 197AB, 197AC, 197C, 198, 273, 499, 501, 501CA, 501E
Migration Regulations 1994 (Cth) regs 2.04, 2.07AM, 2.10, 2.12AA, 2.52, Schs 1, 2, 4CASES
Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562
Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Bahrami and Minister for Home Affairs (Migration) [2018] AATA 1332
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR456
Boulton v The Queen [2014] VSCA 342
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307
Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
Drake v Minister for Immigration and Ethnic Affairs [1978] AATA 71
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61
FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555
FTYC and Minister for Immigration and Border Protection (Migration) [2018] AATA 20
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Jal and Minister for Immigration and Border Protection (Migration) [2016] AATA 789
Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; (2016) 241 FCR 461
Maioha v Minister For Immigration and Border Protection [2018] FCA 1016
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664
MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
NBNB v Minster for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 292 ALR 243
Plaintiff M61/2010E; Plaintiff M69/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
R v Way [2004] NSWCCA 131
Re Visa Cancellation Applicant and Minister for Immigration & Citizenship [2011] AATA 690
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Better decisions, Administrative Review Council report No 39 (1995)
Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Direction no. 75 – Refusal of protection visa Relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
3 December 2018
Mr ToTK is a 37-year-old Iranian Christian and former resident of Oroumiyeh, near Iran’s north western border with Turkey. He, and other members of his family, fled to Turkey in November 2007:- see paragraph 85 below. In October 2010 the United Nations Refugee Agency (“UNHCR”) accepted his fear of religious persecution in Iran, and recognised his refugee status under the 1951 Convention on the Status of Refugees. On 15 November 2011 the then Minister granted Mr ToTK a Class XB Refugee and Humanitarian, Subclass 200 (Refugee) visa. Mr ToTK arrived in Australia in January 2012, and has lived here since then.
Although it was not formally characterised as a “permanent” visa in the Migration Regulations 1994(Cth) (“MigReg_94”) Schedule 1 Part 1, consideration of the nature of a Subclass 200 visa, and its eligibility criteria, shows that they justify its vernacular description as relevantly permanent. The visa entitled Mr ToTK to come to Australia, and placed no limit on the duration of his stay. The visa’s eligibility criteria included Ministerial satisfaction (i) that there were “compelling reasons” for considering the grant of a permanent visa (having regard to the degree of persecution in Iran, and the availability of another suitable country) and, (ii) that his “permanent settlement” in Australia was appropriate:- MigReg_94 200.222 & 200.224. Further eligibility requirements were that he intended to live permanently in Australia, and was likely to be able to do so without undue difficulty:- MigReg_94 200.226 & Public interest criteria 4009 & 4010.
VISA CANCELLATION – OBLIGATIONS, DISCRETIONS AND CONSEQUENCES
Notwithstanding the formal distinction in MigReg_94 between permanent and temporary visas, and the unlimited duration of a Subclass 200 visa, every visa holder is subject to the risk of discretionary visa cancellation if they incur a “substantial criminal record”. This is because they will necessarily fail the statutory “character test”:- see Migration Act 1958 (Cth) (“MigAct_58”) s 501(2), 501(6)&(7)(c). If such a person’s visa status arises for consideration when they are serving a full time custodial sentence, the practical reality is that cancellation of their visa is mandated by the terms of MigAct_58 s 501(3A):- Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61 at [53], [84] & [88].
In May 2017 Mr ToTK received a 12 month suspended sentence for a reckless wounding offence. He thereby acquired a “substantial criminal record” for the purposes of the Migration Act:- see MigAct_58 s 501(6)(a)&(7)(c). Moreover, that conviction and sentence ultimately contributed to his imprisonment from 29 November 2017 to 14 February 2018. Whilst he was imprisoned the mandatory provisions of MigAct_58 s 501(3A) resulted in a Ministerial delegate’s 9 January 2018 decision to cancel his Subclass 200 visa.
The Minister has a statutory discretion to revoke a mandated visa cancellation decision, and an obligation to invite the former visa holder to make representations (within 28 days) about revocation of the decision:- MigAct_58 s 501(CA)(3); MigReg_94 reg 2.52(2)(b). Mr ToTK accepted that invitation. His January 2018 representations included claims that he feared for his life if he were returned to Iran. Five months later, the Department of Foreign Affairs and Trade published an updated Country Information report which specifically addressed (amongst other things) the circumstances of returnees to Iran. The report highlighted the fact of the Iranian government’s general practice of refusing to accept any involuntary returnees from Australia. (I summarise the relevant contents of the report later in these reasons:- see paragraphs 98 to 108 below.) However on 7 September 2018, despite Mr ToTK’s representations, and without any reference to that general practice, a Ministerial delegate decided not to revoke the visa cancellation. The delegate’s non-revocation decision is the subject of Mr ToTK’s review application in these proceedings.
Where a visa has been cancelled, its former holder becomes an “unlawful non-citizen”:- see MigAct_58 ss 13-15. Every “unlawful non-citizen” is to be held in immigration detention (ie., typically, but not exclusively, in a “detention centre”) :- MigAct_58 ss 5, 189(1), 196 & 273.[1]Their immigration detention is to continue until they are removed from Australia, unless (i) their visa is restored or, (ii) they obtain another visa:- see MigAct_58 ss 189, 196.
[1]The Minister has a personal “public interest” discretion (whose exercise the Minister is under no obligation to consider) to make a “residence determination” and to impose related conditions. Such a determination allows a non-citizen to reside at any specified address but does not alter their legal status. They remain an “unlawful non-citizen” in immigration detention:- see MigAct_58 ss 197AB, 197AC.
Where a person is an “unlawful non-citizen” because of a mandatory visa cancellation decision there is a negligible likelihood of their ability to establish their eligibility for another substantive visa. Visa cancellation effectively precludes a non-citizen from applying for any class of substantive visa other than a protection visa:- see MigAct_58 s 501E(2)(a) & MigReg_94 reg 2.12AA.[2] Visa cancellation also points to the improbable success of any protection visa application, because compliance with the “character test” is ordinarily one of the eligibility criteria, and inability to satisfy the “character test” is a permissible ground for refusal of a protection visa application:- see MigAct_58 s 65(1)(a)(iii); MigReg_94 reg 866.225 & Public Interest criterion 4001(a). However, compliance with the “character test” is not an inflexible criterion:- see MigReg_94 Schedule 4 Public Interest criterion 4001(d). Furthermore, the Minister does have a general public interest discretion to grant a visa of any class to any non-citizen who is in immigration detention:- see MigAct_58 s 195A(2).
[2]Cancellation of a protection visa also typically precludes a further protection visa application:- see MigAct_58 ss 48 & 48B). But that preclusion does not apply to Mr ToTK. A Class XB Refugee visa is not a “protection visa” for the purposes of MigAct_58 s 35A & 501E(2). Protection visas (classes XA & XD) are visa classes specifically created by MigAct_58 s 35A (and prior to 2014 by s 36). Refugee and humanitarian visas (class XB) are separate visa classes created by MigReg_94 reg 2.07AM and Schedule 1 Part 4: Item 1402. Consequently the term “protection visa” (and provisions that operate by reference to that description) do not apply to applications for class XB visas:- see Jal and Minister for Immigration and Border Protection (Migration) [2016] AATA 789 at [59]-[60].
The ordinary position in relation to removal is that “an officer” must remove an unlawful non-citizen from Australia “as soon as reasonably practicable”. That ordinary position applies to an unlawful non-citizen whose visa has been the subject of a mandatory cancellation decision, unless (i) they have made an undetermined visa application, (ii) they are still within time to make representations about revocation of the visa cancellation or, (iii) they have made, but the Minister has not made a decision in response to, complying representations about the cancellation decision:- MigAct_58 s 198(2B). (The existence of non-refoulement obligations in relation to an unlawful non-citizen is expressly declared to be irrelevant to the statutory removal obligation:- see MigAct_58 s 197C; DMH16 v Minister for Immigration and Border Protection [2017] FCA 448).
Where a non-citizen’s visa cancellation decision has been made under MigAct_58 s 501 (amongst others) (and they have failed to become a “lawful non-citizen”) their detention is to continue (subject to any contrary final curial determination) “whether or not there is a real likelihood of … being removed from Australia … in the reasonably foreseeable future”:- MigAct_58 s 196(4)&(5).
The combined result of the relevant provisions therefore points to the likelihood of two alternative consequences of an unrevoked mandatory visa cancellation decision under MigAct_58 s 501(3A). One consequence is that the non-citizen will be physically removed from Australia, and thereafter face permanent exclusion from the country. The alternative consequence is that the non-citizen will face the prospect of indefinite immigration detention.
On the other hand, a non-citizen’s status as a “lawful non-citizen” (including after a favourable cancellation revocation decision) confers no permanent right to Australian presence. Every visa holder who has acquired a “substantial criminal record” is subject to the risks of (i) mandatory visa cancellation (in the event of any subsequent period of incarceration), and (ii) discretionary visa cancellation, at least in the event of further offending, or a material adverse change in their personal circumstances:- see MigAct_58 s 501(2)&(3B) & Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500 at 511; [2016] FCAFC 185 at [36]-[38].
THE REVOCATION DISCRETION
Because Mr ToTK’s May 2017 suspended sentence requires him to be regarded as having a “substantial criminal record”, the appropriateness of exercising the statutory revocation discretion depends on satisfaction there is “another reason why” the cancellation decision should be revoked:- MigAct_58 s 501CA(4)(b)(ii).
The required enquiry about “another reason” must have regard to all relevant matters, and consider the extent to which each tends to favour maintaining or revoking the mandated visa cancellation decision:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]&[39]. It follows that the considerations relevant to the “another reason” criterion are not circumscribed, and permissibly extend to all of the personal circumstances, and conduct, of the particular non-citizen whose visa status is in contention. In this respect the scope of the revocation discretion is consistent with the visa cancellation discretion conferred by MigAct_58 s 501(2). A non-citizen’s inability to satisfy the character test (because of their statutorily defined “substantial criminal record”) enlivens the general visa refusal and cancellation discretions, but does not itself require their exercise:- NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [206]-]208]. Neither does that inability dictate the outcome of the revocation discretion.
Any decision made in the exercise of the revocation cancellation discretion must be legally “reasonable” – in the sense that it has a rational foundation, takes all relevant considerations into account, and involves a result that is not plainly unjust:- Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 – per Hayne, Kiefel and Bell JJ; Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]-[20]. In addition the purpose of the evaluation required is not just to arrive at a legally “correct” decision. It is to inform the exercise of the discretion with a view to achieving a result that is “fair and rational in all of the circumstances”, including the object and terms of the relevant statutory provisions - Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; (2014) 227 FCR 562. Describing the intended purpose of the discretion in this way is consistent with the established objective of this Tribunal’s review jurisdiction. That objective is to achieve a result that is both legally “correct” (in the sense referred to above) and is also the “preferable” result - having regard to all the available relevant information and the desideratum of “good government” in the exercise of the relevant power:- Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 at 355 (decisions delivered on the same day by the same Full Court); and Better Decisions, Administrative Review Council Report No 39 (1995) at ¶2.5 & fn 31.
“ANOTHER REASON” AND INDEFINITE IMMIGRATION DETENTION
Consistent with the MigAct_58 provisions outlined earlier, Mr ToTK has been in immigration detention since his 14 February 2018 release from prison custody. If his current review application were to be unsuccessful, the “as soon as reasonably practicable” qualification to the mandatory removal obligation in MigAct_58 s 197C(2) & 198(2B) would operate to permit his continued detention pending consideration of any application he might make for either a protection visa or for a public interest visa grant under MigAct_58 s 195A:- see Plaintiff M61/2010E; Plaintiff M69/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [22]-[35]; DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 at [17]. It would also operate to permit his continued immigration detention as an “unlawful non-citizen” even if there is no current or foreseeable prospect of either his return to Iran or his removal to some other country:- see MigAct_58 s 196(4); Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [46], [74] McHugh (Heydon agreeing); [229]-[231] & [247] per Hayne J; [286] [290] [295] per Callinan J; Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251 CLR 322 at [124]-[130], [191]-[201].
In the present case the practicability of Mr ToTK’s involuntary return to Iran is confounded by the reality of the general practice of the government of Iran not to issue travel documents for, nor to accept the entry of, involuntary returnees from Australia. That general practice is acknowledged in (i) the Department of Foreign Affairs and Trade report Country Information Report - Iran (7 June 2018 at ¶5.23), (ii) the Department of Home Affairs, Country of Origin Information Services report:- “Common Claims – Iran” (12 October 2018 at page 36 & fn 414), and (iii) information the Minister’s representatives provided in response to my specific enquiry in the present proceedings.
The obligation imposed by MigAct_58 s 198(1), to remove an unlawful non-citizen from Australia, implicitly confers a power to select the removal destination. Consequently the permissible discharge of the removal obligation is not confined to returning the non-citizen to their “home” country:- Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at [227]; Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 292 ALR 243 per Gummow J at [99]. But Mr ToTK’s involuntary return to Iran is currently precluded, his voluntary return is improbable and there is neither evidence that Mr ToTK has a right to enter any other country, nor that any other country would accept him. (He has no current valid passport[3], nor any other travel document.) Consequently, he faces an indefinite removal difficulty and consequential indefinite immigration detention - unless the cancellation decision is revoked and his visa consequently restored:- NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [4]-[5], [166]-[168].
[3] Mr ToTK’s Iranian passport expired in March 2012.
The likelihood of prolonged or indefinite detention is a permissibly relevant consideration to take into account in the exercise of the revocation discretion. This is so whether or not the prospect arises because (i) of the legal consequences of the non-citizen’s entitlement to the benefit of Australia’s non-refoulement obligations, (ii) the practical inability to remove the non-citizen from Australia or, (iii) the consequences of continued detention on the non-citizen’s physical and mental health:- NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [16]-[18], [177]-[178]; NBNB v Minster for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at [2] & [107]-[122]; Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29 at [40]-[45], [104]-[107], [123], [124]-[133].
MINISTERIAL DIRECTION NO. 65
Exercise of the statutory “another reason” revocation discretion by this Tribunal (and by a Ministerial delegate) is subject to compliance with any relevant Ministerial direction (consistent with MigAct_58 and MigReg_94):- see MigAct_58 s 499(1) & (2A). The currently applicable Ministerial direction is “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”). The terms of Direction no. 65 describe it as providing guidance to assist in the appropriate exercise of the discretion:- see cl 5 & 6.1(4). The Direction does not restrict the duty of any decision maker to reach a correct and preferable decision in the light of the “specific circumstances of the case”:- see cl 6.1(3);NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [22]-[25] per Alsop CJ & Katzman J, [207]-[208] per Buchanan J; Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 at [57] & [78], [79]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J.
It is prudent to outline the material content of Direction no. 65. The Direction Preamble describes the principal objective of MigAct_58 s 4(1) (ie., to regulate “in the national interest” non-citizen presence in Australia) and summarises the nature of the statutory visa cancellation provisions. In relation to the latter, the Direction emphasises the requirement that once the statutory discretion has been enlivened (whether it relates to visa grant, cancellation or cancellation revocation) decision makers “must consider whether [to exercise the relevant discretion] given the specific circumstances of the case”:- see cl 6.1(2)&(3). (In this respect Direction no. 65 is consistent with the propositions discussed in paragraph 13 above, and reflects the view stated in the last sentence of that paragraph.)
The immediately following part of the Direction no. 65 Preamble provides a statement of “general guidance” for decision-makers. The statement commences with a declaration of government commitment to “protecting the Australian community from harm as a result of criminal activity”, and from what is referred to as “other serious conduct”. The latter expression is defined in the interpretation Annexure to the Direction as including behaviour that (i) did not result in formal conviction, (ii) did not “strictly speaking” involve a criminal offence, (iii) was probative of a lack of good character, or (iv) indicated a risk of future criminality, intimidation, danger, or community discord.
The guidance statement continues with a reference to “principles” that are said to provide “a framework” for decision-making in individual matters, and to “reflect community values and standards” relevant in assessing whether “the risk of future harm from a non-citizen is unacceptable”. They are said to be of “critical importance” in furthering the objective of the Government’s protective commitment:- cl 6.2(1)&(3). Those “principles” can be understood as involving the following propositions:-
(a) the character of a non-citizen’s lawful presence in Australia is a conditionally available statutory right (described as a “privilege”) conferred on the basis of expectations the visa holder will (i) comply with Australian law, (ii) respect Australia’s government institutions and, (iii) not cause any harm to either the Australian community or individual members of that community:- cl 6.3(1)
(b) where a non-citizen has committed “serious crimes” (non-exhaustively exemplified as those involving violence, sexual violation and offences whose victims were officials, disabled, elderly or children) there is general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3)
(c) in “some circumstances” the nature of a non-citizen’s “criminal offending or other conduct”, and its associated harm, may be so serious that “any risk” of future similar conduct is unacceptable, despite “strong countervailing considerations” favouring the person’s continued Australian presence:- cl 6.3(4)
(d) in other circumstances it may be appropriate to afford a degree of tolerance in relation to a non-citizen’s “criminal or other serious conduct”.- cl 6.3(5)
(e) the appropriate degree of tolerance is low where the non-citizen is either a visa applicant or the holder of a limited stay visa – because they cannot have any justifiable expectation of continued Australian presence:- cl 6.3(6)
(f) the appropriate degree of tolerance is also stated to be low in relation to the criminal conduct of a non-citizen visa holder whose Australian community presence and contribution has been “only for a short period of time”:- cl 6.3(5)
(g) where a non-citizen visa holder has lived in Australia either “for most of their life”, or from an early age, “Australia may afford a higher level of tolerance” of a non-citizen’s “criminal or other serious conduct”:- cl 6.3(5)
(h) regard must be had to any adverse impact that a non-citizen’s visa cancellation will have on any Australian resident minor children and other immediate family members:- cl 6.3(7)
(i) regard must also be had to the nature and duration of any positive contribution the non-citizen has made to Australian community:- cl 6.3(5)&(7).
Section 2 of Direction no. 65 deals specifically with the exercise of the various visa related statutory discretions. It begins with a general requirement that decision-makers (i) exercise the discretion “informed by the principles”, (ii) take into account “the primary and other considerations relevant to the individual case” and, (iii) recognise that primary considerations “should generally” be given greater weight: - cl 7&8. The Direction then explicitly states that “differing considerations” apply to grant, cancellation, and revocation visa decisions. The Direction goes on to explain that this differentiation “recognises that non-citizens who hold a substantive visa will generally have an expectation of being permitted to remain for the duration of their visa”:- cl 8(1). (That explanation complements the substantive distinction drawn in cl 6.3(5)&(6) between non-citizens who hold unlimited stay visas, and those who do not.)
The guidance that “primary” considerations “should generally” be given more weight than other considerations does not dictate that “primary” considerations must be accorded determinative weight in the exercise of the visa related discretion:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562 at [80]-[83] per Perry J; Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 at [57] per Kenny & Mortimer JJ; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28], [44]; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [34]-[41]. In the circumstance of a particular case, any of the permissibly relevant considerations may be, or may combine to provide, the ultimately determinative influences in the exercise of the relevant discretion: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [59].
CONSIDERATIONS REQUIRED BY DIRECTION NO. 65
Part C of Section 2 of the Direction articulates the “primary” considerations and some of the “other” considerations, to which regard must be had in the exercise of the revocation discretion. The “primary” considerations relevant to Mr ToTK’s circumstances are:-
(a) the protection of the Australian community from “criminal or other serious conduct” – ie., the governmental commitment declared in the Preamble to Direction no. 65, and
(b) the expectations of the Australian community.
The “other” considerations specifically discussed in Section 2 Part C can appropriately be summarised, having regard to Mr ToTK’s personal circumstances, as requiring regard to
(a) the strength, nature and duration of his Australian ties
(b) the impact of the revocation decision on Australian businesses and “victims” of his offences[4]
(c) the nature and extent of the difficulties he is likely to encounter if he were to be required to return to Iran, and
(d) his fears for his safety if he were to be returned to Iran.
[4]Despite the potential relevance of these two matters, the limited evidence relating to them does not warrant either matter being regarded as a significant consideration.
MR TOTK’S OFFENCE HISTORY
Mr ToTK’s various convictions and sentences are summarised in the Schedule to these reasons. The information presented in the Schedule is primarily arranged according to the date of Mr ToTK’s various offences. It also includes (i) Mr ToTK’s age at the time of each offence, (ii) details of the sentence, fine or behaviour bond relating to each of his convictions, (iii) the maximum potential penalty for each offence, (iv) the periods when he was in custody (either on remand or under sentence) and, (v) some incidental details of warnings he received in relation to his unlicensed driving offences. I have grouped the various offences, necessarily somewhat impressionistically, into five categories that most appropriately indicate their essential nature.
The information summarised in the Schedule supports the propositions I set out below.
(a) Twenty two of Mr ToTK’s 25 convictions relate to offences he committed between June 2016 and May 2017.
(b) Ten of his offences involved drug use, and dishonesty related to his illicit drug use.
(c) Seven of the 25 convictions were for driving offences. Four of those were for unlicensed or disqualified driving offences committed after Mr ToTK had been advised of his licence suspension or disqualification. None of the offences resulted in a custodial sentence.
(d) The six convictions recorded in the Schedule as “other” offences resulted in only fines or good behaviour bonds.
(e) Two of Mr ToTK’s offences involved sentences of imprisonment, but the 1 December 2016 offence resulted first in a 12 month suspended sentence and, subsequently a sentence served by way of an Intensive Corrections Order. His 3 May 2017 break and enter offence resulted in an eight month sentence that was also the subject of an Intensive Corrections Order.
(f) Only one of his offences involved personal violence, and only one other offence involved property damage.
(g) Mr ToTK’s only period of incarceration under sentence was from 29 November 2017 to 14 February 2018. That incarceration was the result of his failure to comply with the terms of Intensive Corrections Orders.
(h) Mr ToTK was released from prison on 14 February 2018 (and taken into immigration detention) after having been re-assessed as suitable to have his Intensive Corrections Order re-instated.
THE DRIVING OFFENCES
As the details in the Schedule indicate, Mr ToTK’s April 2012 offences resulted in small fines, and a short period of disqualification. In those circumstances, and where the offences were committed more than six years ago, they do not contribute materially to a contemporary assessment of the preferable outcome of the exercise of the revocation discretion.
Mr ToTK’s suspended licence and disqualified driver offences in 2016 and 2017 are matters of comparatively greater significance. This is partly because they were (in practical terms) repeat offences that involved Mr ToTK driving when he well knew he could not do so lawfully. It is also partly because of the general expectation, of a visa holder’s respectful compliance with Australian laws: see Direction no. 65 cl 6.3(1). However, leaving aside additional periods of suspension or disqualification, three of the offences resulted only in fines. The fourth offence resulted in a good behaviour bond. In each case the sanction was well below the potential maximum penalty for the offences. In those circumstances, whilst the repetition of these related offences contributes to an impression of Mr ToTK’s comparative indifference to the requirements of lawful use of motor vehicles, the small number of the offences of this nature, and the fact that they attracted sanctions very much at the low end of the available range, combine to warrant the conclusion that they also do not materially inform assessment of the preferable exercise of the revocation discretion.
THE DECEMBER 2016 OFFENCES
It is apparent from the details in the Schedule that Mr ToTK had begun significant illicit drug use by at least late September 2016. The details of his various offences in September and November 2016 involved possession of “ice” (methamphetamine), dishonesty in obtaining money or goods for the purpose of funding his drug use, and possession of a small knife. Again each of these matters was dealt with by way of a fine, a sanction that was well below the maximum potential penalty. In those circumstances these offences do not merit characterisation as informatively “serious” in the exercise of the revocation discretion. What they do evidence is the reality that Mr ToTK had developed a significant appetite for “ice” and was ready to engage in dishonesty to satisfy that appetite.
That readiness likely accounts for the circumstances that led to Mr ToTK’s May 2017 conviction for reckless wounding. The likelihood arises because of a suggestion in the police “Facts Sheet” that some months earlier Mr ToTK had mistakenly gone to a house in Liverpool and unsuccessfully sought to get money and “ice” from the resident. The “Facts Sheet” suggests that early on the morning of 1 December 2016, despite the “mistaken” visit three months earlier, Mr ToTK recognised the resident when he encountered him at the Fairfield Railway Station, and challenged him to a fight. When an argument ensued Mr ToTK took a knife from his bag, lunged at the resident, and a fight then developed between the two of them. In the course of that scuffle the resident suffered a small stab wound to his left shoulder, a scratch across the top of his right shoulder and some facial abrasions.
Mr ToTK’s account of this incident depicts the resident, rather than himself, as the provocateur in what happened. Consistent with the suggestion in the police Facts Sheet of the “mistaken” attendance in September, Mr ToTK said he neither knew the resident nor recognised him at the Fairfield station. Rather it was the resident who appeared to recognise him, and had started to abuse and insult him. It was that aggressive attitude, which Mr ToTK said culminated in the resident throwing a cup of coffee over him, that had resulted in Mr ToTK taking what he said was a box cutter knife from his bag and trying to scare the resident off.
On either version of events, it was Mr ToTK who produced the knife, and its use resulted in the, apparently minor, injury the resident suffered. Producing the knife must be regarded, in the light of the conviction, as disproportionate to any offence or apprehension of harm, given by the resident. But that conclusion is not inconsistent with, and neither the Facts Sheet nor the fact of the conviction, involve a total rejection of, Mr ToTK’s version of events, with its indication that the resident partly contributed to the confrontation. Consistent with that view, the court certainly did not deal with the offence on the basis that Mr ToTK had engaged in a premediated attempt to harm the resident. On two occasions the sentencing magistrate described the incident as one that “has got to be at the bottom end of the scale”. That assessment obviously underlay the 12 month suspended sentence, and the additional penalty of a $2,500 fine, that the magistrate imposed.
The Minister submitted in the present proceedings that a 12 month suspended sentence must be regarded as significant, and required Mr ToTK’s 1 December 2016 offence to be regarded as relevantly serious. In support of that proposition the Minister relied on an observation by Rares J in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113 at [7]&[11], and the related proposition that, under the NSW sentencing legislation, a sentence of imprisonment can only be imposed where a court is satisfied that “no other term of imprisonment is appropriate”:- see Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1). The underlying proposition was that because imprisonment is a “last resort” [5], an offence that attracts a custodial sentence must be regarded as relevantly “serious”.
[5] See R v Way [2004] NSWCCA 131 at [115]; Boulton v The Queen [2014] VSCA 342 at [112].
There is a sense in which that general proposition can be accepted:- see eg., cl 6.2(1), 6.3(5), 6.3(6), 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But the whole of Part C addresses the situation of a non-citizen who has a “substantial criminal record” (for any of the reasons in MigAct_58, including having been sentenced to 12 months imprisonment) and parts of Direction no. 65 at least implicitly disavow the inevitability of such a general proposition. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. This permission implies a corresponding recognition that such a characterisation is neither mandatory, nor even appropriate, for some offences. Similarly, cl 13.1.1(c) to (e) require regard to the frequency and number of offences, as well as to the actual sentence imposed. Those obligations provide further context to the permission, and also tend against the conclusion that individual sentences, even of 12 month’s imprisonment, must necessarily be regarded as determinatively serious in relation to the exercise of the revocation discretion. Elsewhere the sub clauses in the statement of principles in Direction no. 65 cl 6.3(2)&(3) use, but do not define, the expression “serious crime”. Similar expressions (“serious” Australian and foreign offences) are defined in MigAct_58 s 5. The general thrust of those definitions is that they mean offences that (i) involve violence, serious property damage or serious drug offences and, (ii) are punishable by imprisonment for a maximum (or fixed) term not less than three years. The exegesis in cl 13.1.1(1)(a)&(b) of Direction no. 65 points to the likelihood that “serious crime” includes violent and sexual crimes, as well as crimes against officials and vulnerable victims.
All of those matters provide insight into the exercise involved in determining whether one or more of the offences of which a particular individual has been convicted merit characterisation, for the purposes of the revocation discretion, as “serious”. But they ought not be regarded as the sole, or even the necessarily determinative, source of information relevant to the characterisation. As North J pointed out in Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91], it is not possible to reach a legally reasonable conclusion about the seriousness of an offence without informative details of the actual circumstances involved. In both NBNB v Minster for Immigration and Border Protection [2014] FCAFC 39; (2014) 220 FCR 44 at [113]-[116] and NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (at [202] & [207]) Buchanan J emphasised that a non-citizen is entitled to have their request assessed with proper regard to the merits of their particular circumstances. That necessarily requires regard to, and an assessment about, the actual circumstances involved in the non-citizen’s offences, taking into account the views of the sentencing court:- see Direction no.65 at cl 8(2) & 13.1.1(1). As to the latter, the best guide to the objective seriousness of any offence is the actual sentence or penalty imposed:- NBNB v Minster for Immigration and Border Protection [2014] FCAFC 39 at [183] & [202].
In that context the characterisation for which the Minister’s submissions contended in relation to Mr ToTK’s 1 December 2016 offence must be balanced against the recognition that (i) the sentencing magistrate regarded the offence as “very much at the low end of the scale”, (ii) the circumstances of the incident appear to have been contributed to by the provocative behaviour of the victim, (iii) the offence did not involve any significant injury and (iv) Mr ToTK has no other convictions for any offence involving personal violence. Furthermore, it is appropriate to attach significance to the reality that the 12 month sentence was wholly suspended. It is relevant because it tends to emphasise the substance of the sentencing magistrate’s view that the circumstances of the offence were at the lower end of the applicable scale. As a former President of this Tribunal remarked long ago, in relation to a 12 month sentence that involved a three month non-parole period:- see Drake v Minister for Immigration and Ethnic Affairs [1978] AATA 71 (per Davies J):
The term of imprisonment imposed on the applicant indicates a degree of severity of crime which is only just sufficient to enable the Minister to exercise his discretion. To regard it as particularly severe or grave is to take a view of it which is inconsistent with the view taken by the law and by the court which imposed the sentence.
Mr ToTK’s appetite for illicit drug use certainly played a motivating role in his 26 December 2016 offences. Just after midday he was apprehended with his then girlfriend. They were leaving a Target store with a shopping trolley laden with about $345 worth of items for which they had not paid. When questioned by police at the scene, Mr ToTK explained he had intended his girlfriend would sell the items to get money to buy drugs. As the Schedule shows, these offences were dealt with by way of fines, penalties that were very much less than the potential maximum penalty.
When he was apprehended at the Target store Mr ToTK also told the Police that he was living with his parents. Later that day, after having been issued with a court attendance notice relating to the incident at the Target store, he went to his parents’ home. He asked his mother for money, which he said he wanted to pay for a drug rehabilitation course. She offered to pay for the course but refused to give him any money. Her refusal resulted in Mr ToTK becoming very angry and verbally aggressive. In his anger he slammed or hit the door to his bedroom and put a hole in it, and then left. (His mother believes he took her mobile phone with him, although its theft is not an offence for which he has been either charged or convicted.) The incident resulted in an apprehended violence order being issued, apparently at the instigation of the police rather than Mr ToTK’s mother. Despite the fact of that order having been made, there is no basis for satisfaction that Mr ToTK either threatened his mother, or that she was apprehensive for her own safety. (Her evidence was that she reported the matter to the police to enlist their aid in getting her son to address his drug use.) Consistent with that view, the only offence with which Mr ToTK was charged was that of damaging the bedroom door, and his conviction for that offence was dealt with by way of a fine.
Two months later Mr ToTK was again apprehended by police after having been observed trying to open mailboxes in an apartment complex at Fairfield. When searched he was found to have an “ice” pipe (which he admitted to having recently used) and a small Swiss army knife. He also had a gold necklace and a medicare card, for neither of which he could satisfactorily account. Those possession offences were dealt with on 20 April 2017, when the fine sanctions imposed were again much less than the potentially available maximum penalty.
The sanctions imposed in April 2017 clearly had little effect on Mr ToTK’s behaviour. That clarity emerges from the facts that, at 7:30pm the same day, he was again apprehended and found to be in possession of a small quantity of “ice”, and a pocket knife that he explained he used to ladle the “ice” into a pipe when he smoked it.
THE 3 MAY 2017 BREAK AND ENTER OFFENCE
A fortnight later Mr ToTK took part in a break and enter offence at an apartment complex at Rosehill. He and an unknown accomplice forced open the front door, made their way to the basement carpark, cut the padlock on the toolbox of a tradesman’s utility vehicle, and stole tools valued at over $2,000. Later the same morning he was apprehended and again found to be in possession of a small quantity of methamphetamine. Little over a fortnight later, on 22 May 2017, Mr ToTK was arrested in relation to the break and enter offence, and thereafter remained in custody on remand, until his court appearance and formal sentencing on 12 September 2017. On that occasion Mr ToTK was given an eight month sentence, to be served by way of an Intensive Corrections Order.
THE SEPTEMBER 2017 INTENSIVE CORRECTIONS ORDERS
Whilst in custody on remand Mr ToTK pleaded guilty to the aggravated break and enter charge on 26 July 2017. That plea necessarily entailed Mr ToTK’s acknowledgement of having breached the good behaviour bond conditions relating to the suspended sentence imposed on 10 May 2017. Consequently, on 26 July 2017 the Local Court referred him for an assessment of his suitability for sentencing by way of an Intensive Corrections Order (“ICO”) in relation to both matters.
An ICO is a sentencing option available in relation to certain offences, where the offender’s sentence is for no more than two years:- see the Crimes (Sentencing Procedure) Act 1999(NSW) (“the Sentencing Act”). As at September 2017 the threshold limitations on the making of such an order were that (i) the offender had been referred for assessment, (ii) the assessment report expressed the view that the offender was a suitable person “to serve the sentence by way of intensive correction in the community”, (iii) the offender had signed a written undertaking to comply with the ICO and, (iv) satisfaction that it was “appropriate in all the circumstances” for the person to serve their sentence by way of an ICO:- see the Sentencing Act s 67.
Mr ToTK participated in the suitability assessment process. That involved an assessment interview, and completing a detailed “intake” questionnaire on 28 August 2017. In the course of those activities he (i) acknowledged his regular use of “ice” since early 2016, (ii) recognised that it had contributed to his offending and to relationship problems with his parents, (iii) expressed willingness to undergo counselling treatment to address his illicit drug use.
The suitability assessment report had to take into account various prescribed matters:- see the Crimes (Sentencing Procedure) Regulation 2017 (NSW) reg 15. Relevant to Mr ToTK’s circumstances, those matters were as set out in the following list. (I have included [in parenthesis] the related responses identified in the assessment interview record and the assessment report.)
(a) His criminal record and likelihood of re-offending - [LISR – medium risk]
(b) Risks associated with managing him in the community, having regard to his previous response to community supervision - [No previous supervision – no issues identified]
(c) The likelihood of him committing a domestic violence offence - [No]
(d) Whether he would be likely to have suitable residential accommodation- [Yes]
(e) Whether circumstances of his residence, employment, study or other activities would inhibit effective implementation of the order – [no issues identified]
(f) Whether the person(s) with whom he resided would understand the requirements of the order; and were prepared to live in conformity with them
(g) Whether any person living with or near him would be at risk of harm – [No]
(h) Whether his drug or alcohol dependency would affect his ability to comply with the order – [Alcohol or Drug Addiction counselling condition to be imposed]
(i) The factors involved in his past offences that would be able to be addressed by targeted interventions, and the availability of resources to address those factors – [Drug use – referral to Odyssey House.].
Under the legislative provisions current in September 2017, an ICO was subject to mandatory conditions:- see Crimes (Administration of Sentences) Act 1999 (NSW) (“the Administration Act”) s 81. Those conditions included good behaviour, reporting, supervision and prohibition on illicit drug use, submission to testing for substance abuse, and community service:- see the Crimes (Administration of Sentences) Regulation 2014 (NSW) reg 186. On 28 August 2017, as part of the ICO suitability assessment process, Mr ToTK signed a written acknowledgement that the nature of the mandatory ICO conditions, and his compliance obligations, had been explained to him. His acknowledgement form included agreement to comply with the ICO conditions.
The ICO assessment report of 4 September 2017 recommended that Mr ToTK was suitable for an ICO, subject to an additional specific condition that he undertake drug counselling. The likely determinative considerations influencing that recommendation were (i) the fact that his offending was directly related to, and likely a consequence of, his illicit drug use, (ii) his apparent motivation to address his drug use issues, (iii) the availability of a drug rehabilitation counselling service and, (iv) his expressed willingness to comply with the ICO conditions. The ICO order made on 12 September 2017 effectively included the assessor’s counselling recommendation.
Mr ToTK was given, and acknowledged his understanding of, his ICO “community service” instruction on 18 September 2017. It required his weekly attendance, commencing on 21 September 2017, at the Cabramatta train station, to do general gardening maintenance and cleaning. But on both 18 and 19 September, just a week after his 12 September 2017 release from custody, and despite his previously indicated agreement to comply with its terms, Mr ToTK used “ice” again. Nevertheless he did report that use to his ICO supervisor on 20 September 2017, and authorised the supervisor to refer him to the Odyssey House rehabilitation service. The referral form indicated an anticipated start date of 11 October 2017, but that seems to have been postponed to 18 October 2017.
In the following weeks Mr ToTK satisfactorily complied with his ICO reporting obligations and supervision requirements. He also began increasingly frequent, but part time, work with a friend as a painter. He attended one of the weekly Odyssey House counselling sessions (and was excused from another) . But, in the period to 29 October 2017 he attended only one of six of his scheduled weekly community work days. On 30 October 2017, after he had been given a previous oral warning, a formal letter sent to his parents’ address, warned that any further non-attendance was likely to result in revocation of his ICO and immediate arrest. Despite that warning he did not attend any of his subsequently scheduled work days. The extent of his failure to reside with his parents is unclear, but likely to have been substantial. In early October 2017 his mother reported that in the previous week he had only spent three nights at home. In early November 2017 Mr ToTK conceded to his ICO supervisor that he was spending all his time with a girlfriend. And in a later concession, he disclosed that he had again used “ice” in early November.
In his October 2018 interview with Mr Gorrell (see paragraph 56 below) Mr ToTK gave ongoing drug addiction as the reason for his ICO breaches in September, October and November 2017. That explanation seems consistent with the contemporary assessments made by Mr ToTK’s ICO supervisor. In a 23 November 2017 note the supervisor recorded that Mr ToTK had “struggled with ICE addiction”. In a December note, the supervisor more bluntly recorded that Mr ToTK’s response to supervision had not been satisfactory because: (i) he had not complied with the direction to reside with his parents, (ii) he had continued to use illicit substances (at least until early November 2017), (iii) he had not attended drug rehabilitation counselling regularly[6] and, (iv) he had not attended for his scheduled community work. The latter failure led to the revocation of Mr ToTK’s ICO on 22 November 2017, and his return to custody on 29 November 2017.
[6]The extent of Mr ToTK’s Odyssey House non-attendance is unclear. However, the supervisor’s 23 November 2017 notes specifically state that Mr ToTK “was attending counselling regularly”. The overall context of the notes suggests that (i) the latest information about his attendance had come from an attendance report the supervisor had obtained from Odyssey House and (ii) Mr ToTK’s irregular attendance most likely related to the period before a 6 November 2017 meeting where the supervisor had reminded him of the attendance obligation.
REINSTATEMENT OF THE ICO
Under the provisions of the Administration Act, the State Parole Authority can re-instate a revoked ICO. According to the provisions in force as at 14 February 2018, the State Parole Authority could do so only (i) if the offender’s re-instatement application disclosed what they have done, or are doing, to ensure future compliance with the re-instated order, (ii) after the offender has served at least one month in custody, (iii) after referring the offender to the Commissioner for Corrective Services for further assessment of their suitability and (iv) subject to compliance with the substantive and procedural requirements in the Sentencing Act – including the existence of a suitability recommendation in a current report :- see the Administration Act s 165, the Sentencing Act s 67 & paragraph 45 above.
Consistent with the statutory requirements the same Corrective Services officer provided a further suitability assessment report on 12 February 2018. The report preparation process involved interviews with Mr ToTK and his mother, as well as discussions with Mr ToTK’s ICO supervisor. The report proceeded on the basis that the operative reason for the November 2017 ICO revocation decision had been his failure to attend for community work (rather than non-attendance at Odyssey House counselling) – and that the reason for his non-attendance was a failure to realise the possible consequences. But, after noting that Mr ToTK had undertaken to comply in future, the report concluded that he was suitable to have his ICO re-instated. That recommendation was supported by the unit leader at the Parklea Correctional Centre, where Mr ToTK was in custody. In the light of that report and recommendation, the State Parole Authority re-instated Mr ToTK’s ICO on 14 February 2018.
The 12 February 2018 report disclosed awareness of the 9 January 2018 visa cancellation decision, and the consequential likelihood that Mr ToTK would be taken into immigration detention immediately on his release from custody. The Minister submitted that this awareness undermined the significance of both the suitability assessment report and the State Parole Authority’s 14 February 2018 decision. That submission involves two propositions. The first is that both the assessor and the Authority approached their respective tasks with a subjective belief that there was no prospect of Mr ToTK’s revocation representations being determined in his favour prior to the expiration of his sentence on 11 September 2018. The second is that, because of that belief, both the assessor and the State Parole Authority acted without conscientious regard to the specific statutory criteria that governed both the suitability assessment process and the reinstatement discretion. Neither of these assumptions can be accepted. There is no factual basis for the first assumption. The second involves imputing impropriety to both the assessor and the Authority and is not a proposition that is justified by the available material. Contrary to the Minister’s submission, the proper view to take is that the State Parole Authority made a considered decision, that took into account the mandatory criteria, and concluded that the appropriate course was to require Mr ToTK to serve the balance of his sentence by way of a re-instated ICO.
THE OCTOBER 2018 PSYCHOLOGIST’S REPORT
Mr ToTK sought to support his review application by relying on a 30 October 2018 report by an experienced psychologist, social worker and counsellor. That report was based substantially on separate consultations with Mr ToTK and his parents, a history he obtained from them, and what the psychologist referred to as his own mental state examination of Mr ToTK.
Part of that history included accounts of Mr ToTK having been a victim of bullying and assault, including sexual assault, and limited employment opportunities in Iran. Mr ToTK attributed all of these to his professed Christianity, and its status as a minority religion in an overwhelmingly muslim country. The recorded history also included an outline of the circumstances that had led to the family’s flight to Turkey in 2007:- see paragraph 85 below. Mr ToTK told Mr Gorrell he often thought, and had nightmares, about what had happened to him in Iran and Turkey. He claimed that his “ice” use had eased the stress and anxiety of those memories.
Mr Gorrell remarked that although Mr ToTK was co-operative during their two hour consultation, he had an inappropriate affect, poor attention and concentration and appeared confused and depressed. Mr Gorrell expressed “impressions” that, upon proper investigation, Mr ToTK might merit diagnoses of PTSD, Substance Abuse Disorder and Traumatic Brain Injury (on account of a motor vehicle accident in Iran when he was about 19 years of age (ie., in about 2000). Mr Gorrell opined that there was a “direct nexus” between Mr ToTK’s mental condition on arrival in Australia as a refugee in 2012 and his subsequent (2015 / 2016) self medication with illicit drugs. Mr Gorrell further opined that “with appropriate medical and psychological treatment” Mr ToTK could become a contributor to the Australian community. But he recommended that he be admitted “to an intensive and long term residential drug rehabilitation facility” that would address both his illicit drug use, and the reasons for it.
I do not wish or intend to be unsympathetic to the difficulties (of language, shortness of time and the interviewee’s likely anxiety) that confronted Mr Gorrell in preparing his report. Those difficulties likely explain the fact that he chose to use the expression “diagnostic impressions”, rather than to record considered views that specifically identified the relevant diagnostic criteria and his detailed evaluation of them. Because of the “impressionistic” nature of Mr Gorrell’s views, and the abbreviated history set out in his report, there is a real difficulty in accepting his characterisation of Mr ToTK’s drug use as self medication, and his suggestion of direct links between Mr ToTK’s mental state in 2012, and his illicit drug use and related offending in 2015 / 2016. Those inherent difficulties are compounded by (i) the evidence of Mr ToTK’s parents, that Mr ToTK’s behaviour and conduct had been “perfect” up until he started his drug use and, (ii) the absence of any reference to psychological symptoms or ill health in the ICO interview and assessment reports in which Mr ToTK participated in August 2017. Because of those combined difficulties I do not accept that there is a proper basis to conclude that Mr ToTK has any psychiatric illness that has either pre-disposed him towards his previous offending, or contributes to any assessment of the likelihood of his future offending.
THE PRIMARY PROTECTIVE CONSIDERATION
What does emerge from Mr ToTK’s offence history is the reality that, in recent years, he has either had a, difficult to understand, lack of motivation to refrain from illicit drug use, or real difficulty in attempting to refrain. That is well exemplified by three considerations. The first is the evidence of his parents of the change in his relationship with them, culminating in the 2016 Boxing Day incident when, after his unsuccessful attempt to steal goods from Target, he lied to his mother about wanting money to attend a drug rehabilitation course, and lost his temper when she saw through his facile deception. The second is Mr ToTK’s apparent inability to comply with his ICO conditions after his release from custody in September 2017, and despite his then recently asserted willingness to comply. The third is the LSI_R assessment (contained in the 4 September 2017 ICO suitability report) that he had a medium level of risk of re-offending.[7] The fourth is the fact that his ICO conditions required his attendance at drug rehabilitation counselling. The fifth is that he has not in the past demonstrated a consistent willingness and ability to address his drug use problems.
[7] As the September 2017 report briefly explains, the Level of Service Inventory – Revised is an actuarially based risk assessment tool. That is to say, it is a predictive tool based on the apparent comparability of Mr ToTK’s personal history and circumstances with those of a cohort of offenders whose re-offending history is known. Such a tool is based on approximated comparisons and is necessarily imprecise. (In particular, it is unclear whether it takes into account the extent to which offenders are aware of (or even subject to) a risk of visa cancellation and removal in the event of further offending. But, as its utilisation in the mandatory ICO suitability assessment report suggests, it is widely regarded as a useful evaluative tool.
Mr ToTK’s uncle and aunt both provided written statements, and were not required to attend the review hearing to give oral evidence. Both attested to their affection for Mr ToTK, remarked on his good behaviour prior to his drug related offending, and expressed confident views about the unlikelihood of Mr ToTK’s future offending. Mr ToTK’s uncle gave a “guarantee” to employ Mr ToTK in his roofing business, if his visa were to be restored.
It is apparent from the foregoing that Mr ToTK does not have extensive Australian ties. Nevertheless, they are significant – as the Ministerial delegate’s decision reasons accepted. An important aspect of those ties is the position of Mr ToTK’s Australian citizen parents and other family members. Mr ToTK’s parents’ interests in their son’s continued Australian residence are both familial and financial (having regard to his past, and likely continuing future, role as a member of their household). His continuing detention, and potential removal from Australia, would be likely to have a significant adverse effect on them. That reality is highlighted by their evidence, by the background details of the circumstances involved in their flight from Iran, and the consideration that those circumstances have resulted in their subsequent separation from all of their children, except for Mr ToTK.
Another relevant consideration, having regard to its explicit recognition in Direction no. 65 cl 8(1) (see paragraph 23 above), is the nature of the visa Mr ToTK was granted in November 2011. The eligibility criteria involved positive satisfaction about the appropriateness of his permanent settlement in Australia, and since the visa had the practical character of granting him residence that was unlimited as to time, it had the practical character of a permanent residence visa. In practical terms, therefore, Australia had become Mr ToTK’s “home” country.
MR TOTK’S FAMILIARITY WITH, AND REASONS FOR LEAVING, IRAN
Mr ToTK was born in Tehran but, by some time between 1987 and 2000 (at the latest), he and his parents had moved to Oroumiyeh. (Mr ToTK’s youngest brother was born in Oroumiyeh in 1987.) Mr ToTK seems to have lived in there until he was 26. (March 2011 UNHCR records record the family members’ 2007 claims to having been active members of the Assyrian / Chaldean Catholic Church community in Oroumiyeh, in the West Azerbaijan province of Iran.)
Mr ToTK was educated to the equivalent of year 11. He may have obtained a formal high school diploma. (In the course of his ICO suitability assessment in 2017 Mr ToTK said he did not actually pass his final tests.) After high school, he completed a four year surveying course in June 2000. Between January 2001 and August 2004 Mr ToTK spent about three and half years as an Iranian army conscript. After his army service he worked as a taxi driver, and as a surveyor’s driver and assistant). Consistent with that level of education and employment, the 2011 UNHCR records describe Mr ToTK as fluent in both Farsi and Persian (Iran’s two principal languages).
The most detailed account of the reasons for Mr ToTK’s flight to Turkey is contained in the March 2011 UNHCR report. It is to the following effect. Mr ToTK, his parents and brothers despite being members of the Catholic Assyrian Church in Oroumiyeh, also participated in “house church” gatherings at their parents’ home. His brothers were active in church organisations and engaged in proselytising activities. During the course of 2006 Mr ToTK’s then 19 year old brother (“TiTK”) had encouraged two of his muslim friends to attend their “house church” gatherings, and to become baptised Christians.
Over a period of several months in early 2007 Mr ToTK’s 24 year old brother (“DTK”) had brought his then girlfriend to the family’s “house church” gatherings. At that time both DTK and TiTK thought she was an Armenian Christian. Once they found out that she was in fact muslim, DTK ended the relationship. That apparently disappointed the girl’s expectations of marriage, and she told her family about the “house church” gatherings. That disclosure led to some of her relatives coming to the house, and attacking Mr ToTK and his father. Mr ToTK’s father reported that incident to the local police, but they took no effective action. On a number of subsequent occasions, some of the girl’s relatives came to the house with angry complaints and threats. Ultimately they went to the police to complain about the TK family’s “house church” activities.
In this atmosphere of escalating religious animosity Mr ToTK’s brothers DTK and TiTK fled from Iran. DTK’s flight must have been particularly urgent, because it appears to have involved him in deserting from the Iranian army. He has not been heard of since. His survival, let alone his current whereabouts, are unknown.
Mr ToTK and his parents also left home for several months, and stayed in neighbouring villages. They returned to Oroumiyeh in mid November 2007. The following day police intelligence officers came to the house and detained Mr ToTK’s father, because of the reports of the church gatherings and muslim conversions. They also detained Mr ToTK’s 21 year old brother (“ETK”). Days later Mr ToTK and his mother fled to Turkey. About a week later, after he had been released, Mr ToTK’s father joined them in Turkey. (It is not clear whether he obtained his release because of a substantial monetary bribe or because he undertook to co-operate in effecting the apprehension of his sons DTK and TiTK.) According to the March 2011 UNHCR report ETK had by then joined the family in Turkey, but the circumstances in which that happened are not disclosed in the available evidence.
The UNHCR’s March 2011 report concluded that Mr ToTK’s claims disclosed a reasonable likelihood that he and his family members would be persecuted because of their activities in proselytising Christianity among muslims in Iran. There was a risk the family members would be arrested, subject to arbitrary detention, unfairly dealt with and mistreated. Consequently, their apprehensions warranted categorisation as a well founded fear of persecution based on religious grounds and established their entitlement to recognition as refugees under Article 1A(2) of the 1951 Convention on the Status of Refugees.
Both of Mr ToTK’s brothers ETK and TiTK still live in Turkey and have refugee status. Both have established local domestic partnerships. Neither wants to come and settle in Australia. That highlights the reality and significance of Mr and Mrs ToTK’s concerns about the prospect of Mr ToTK’s removal from Australia. It would complete their, likely permanent, physical separation from all four of their sons.
REMOVAL AND HARDSHIP
The hardship consideration with which Direction no. 65 is concerned is the difficulty the person can be expected to encounter in “establishing themselves and maintaining basic living standards” in what the Direction refers to as their “home” country. The required consideration explicitly requires regard to three criteria. They are (i) the person’s age and health; (ii) any significant linguistic and cultural barriers they are likely to encounter; and (iii) the potentially available social, medical and economic support. In relation to the question of successfully achieving and maintaining “basic living standards” regard is required to be had to “what is generally available to other citizens of that country”:- see cl 14.5.
In Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 Perry J emphasised that where a revocation submission raised issues of hardship a decision maker must address them genuinely, with proper regard to the person’s particular circumstances, and to the difficulties likely to face them in maintaining basic living standards:- see [2018] FCA 1016 at [33]-[34].
In the present case the delegate’s 7 September 2018 decision reasons accepted the potential relevance of Mr ToTK’s religious persecution claims, even if he were not able to establish affirmatively his ability to satisfy the formal protection visa criteria. Indeed the delegate accepted that, if Mr ToTK were returned to Iran he likely “would face hardship arising from” his Chaldean Christian religion. Later in the decision reasons the delegate collected the various factors regarded as likely to involve hardship, and to warrant its overall characterisation as “considerable”. Those factors were (i) Mr ToTK’s separation from his Australian family, (ii) the absence of Iranian resident family members, and (iii) “the context of his background as a refugee” from Iran. However, the delegate’s decision reasons did not detail the content of the understanding or findings as to what that “hardship” was likely to entail.
It will be apparent from what I have written about Mr ToTK’s Australian ties, and the reasons for his family’s flight from Oroumiyeh, that his removal from Australia would effectively isolate him from his parents, and from the affection and tangible support they have extended to him throughout the wrenching ordeals to which the family has been subject. For him to be isolated in Iran, after all they have been through, could well be a crushing outcome for Mr ToTK, in terms of his emotional and psychological well being. And it is readily apparent from what I have earlier written that he would indeed be isolated from any immediate family. So far as the evidence reveals, Mr ToTK’s only remaining Iranian resident is an elderly grandmother. I would surmise, given the respective ages of Mr ToTK’s parents, that his grandmother is in her 80’s, but there is no evidence otherwise detailing her location or circumstances. That limited evidence provides no basis for satisfaction that the personal consequences of Mr ToTK’s removal to Iran would be other than potentially crushing.
The delegate’s acknowledgement that Mr ToTK’s religion would expose him to hardship in Iran was not the subject of any specific exegesis. Its perfunctory content erodes confidence that the decision making process really did involve genuine regard to the realities of Mr ToTK’s specific circumstances. It may be that the delegate was intending to acknowledge the generality of Mr ToTK’s potential disadvantages as a member of a minority Christian religion in an overwhelmingly muslim republic. But that generality must be given some content before a decision maker can make a properly informed assessment of its comparative significance in the overall exercise of the revocation discretion.
CHRISTIANITY AND IRAN
I have earlier described the fact of the TK family’s membership of the Assyrian / Chaldean Catholic church community in Oroumiyeh, and something of the extent of their church activity. That included hosting “house churches” in the family home, and some degree of proselytization, at least by Mr ToTK’s brothers DTK and TiTK. It was those activities, and the opposition they provoked – from both other members of the community and the authorities - that led to the family leaving Iran. In his representations to the Minister in response to the visa cancellation Mr ToTK said his life would be at risk if he were to be returned to Iran, because there were “certain people” the family had escaped from. He said he was terrified at the prospect of being returned. In his October 2018 statutory declaration Mr ToTK alluded briefly to the events I summarised earlier (in paragraphs 85 to 88) and went on to describe his understanding that “many house church leaders” and muslim converts had been arrested and imprisoned. He cited the particular instance of one preacher who had been arrested and whose subsequent fate was unknown. He described Iran as “basically not the ideal country” of residence for a Christian, and recorded his understanding that a majority of Christians were leaving the country. He expressed “no doubt” that if he were returned to Iran he would be persecuted because of his religion, and that he would not be assisted or protected by the authorities. Mr ToTK’s father expressed a similar generally stated fear. Mr ToTK’s mother linked her fears of persecution to the official intolerance of “house churches” in Iran and, in that respect her apprehensions were linked to the events that had led to the family fleeing Iran in 2007.
In an attempt to substantiate those persecution apprehensions Mr ToTK’s representative provided a number of press reports, and a June 2018 report by the Department of Foreign Affairs and Trade (“DFAT”). The press reports addressed instances in which members of “house churches”, particularly those engaged in evangelism, had been arrested by the authorities. One January 2016 article described as “very dramatic” the situation of any Christian denomination in Iran. It noted however that various churches, and specifically Chaldean Catholics, were allowed to conduct services – provided they were conducted in Persian (rather than Farsi) and were observed by the police. A subsequent July 2017 article reported that the overall number of Christians arrested in recent years had decreased, but that church leaders had been targeted and given harsher sentences. The June 2018 DFAT report presented a more comprehensive overview of Iran generally, and also of the situation in relation to the likelihood of religious persecution. I summarise its content in the following section of these reasons.
DEPARTMENT OF FOREIGN AFFAIRS AND TRADE - “COUNTRY INFORMATION REPORT - IRAN 7 JUNE 2018”
The introductory part of this report described its purpose and scope as setting out DFAT’s “best judgement and assessment” of the objective country information relating to Iran, based upon “on the ground knowledge and discussions with a range of sources in Iran.". The report noted that, pursuant to Ministerial Direction no. 56 of 21 June 2013, it set out information that decision-makers must necessarily take into account in the consideration of protection visa determination processes.
The report referred to a history of two decades of what it described as “fierce rivalry and continuing tension” between two elements of Iranian society – those committed to the conservative ideals of the Islamic Republic, and those advocating for significant reforms in the country’s political, economic and foreign policy directions.
The DFAT report described Iran, a country with a population of approximately 82 million, as ethnically diverse and heavily urbanised with its population concentrated in the north, northwest and western areas of the country. Income and wealth inequality was said to be significant. Corruption and cronyism were reported to be endemic in all sectors of the economy and socially widespread. Bribes were often required to obtain permits or services.
Approximately 40% of the Iranian population were assessed as living below the World Bank defined moderate poverty line (less than USD3.10 per day). Unemployment was the cause of economic difficulty and social unrest. The government reported unemployment rate in 2017 was 12.4% but that was thought to understate significantly the true unemployment rate. Part of the reason for that view was that the Government regarded a person as “employed” even if they worked for only one hour a week. Even the reported employment rate varied significantly between provinces. In some places it was estimated to be as high as 60%.
Consistent with the report’s indication that 40% of the Iranian population lived below the World Bank’s poverty line criterion, there was nothing in the DFAT report to suggest that any economic support would be available to Mr ToTK in Iran. On the other hand, free basic health care is provided by the Government to all Iranian citizens.
Illicit drug use was a significant and growing problem, and described by a UN agency as “one of the gravest addiction crises” in the world. Iranian health ministry officials estimated that it affected up to 2.75% of the population (or about 2.2 million people). The widely available drugs were crystal methamphetamine, heroin and opium. Government controlled treatment services for drug users were limited, and non-government organisations reported that few services were available outside Tehran. Those organisations also reported that whilst police do not generally victimise or harass drug addicts, they were frequently ostracised by their families.
According to the DFAT report, the Iranian Constitution provides for freedoms of expression, association, opinion, assembly and religion. But those freedoms are subject to a number of basic principles “including Islam and public rights”. As that expression perhaps implies, the principles are not clearly defined in legislation and they are subject to significant discretion in their application by the authorities.
In relation to religious freedom, Article 13 of the Iranian Constitution includes Jewish and Christian religions amongst the recognised non-muslim faiths. Five parliamentary seats are reserved for the recognised religious groups, and one of those is for an Assyrian Christian representative. Adherents to the recognised religious are permitted to hold services and operate their own schools. However, despite the constitutional recognition, members of recognised religious groups face significant official and societal restrictions. These include either formal or practical exclusion from a range of public service offices and employment, and “low-level societal discrimination” restricting employment opportunities. Overall the DFAT report assessed that members of the recognised minority religions faced a low risk of official discrimination. But the report went on to note that the structure of the Islamic Republic inevitably favoured “the Shi’a Muslim majority to the exclusion of all others”.
A somewhat different state of affairs, in relation to the risk of official discrimination, was reported to apply in relation to what DFAT described as “unrecognised Christian groups” (the category to which the description “house churches” applies). A starting point in considering the position of “house churches” is that the Iranian Penal Code strictly prohibits non-Muslim conversion of Muslims (and indeed makes it a capital offence). One consequence of this provision is that none of the Constitutionally recognised Churches proselytises or accepts converts as members. Another, and perhaps related, consequence is that members of unrecognised minority churches practice their faith in “underground house churches”. The precise extent of “house church” activity is obviously difficult to determine accurately. They are reported to be widespread throughout Iran but widely varying in their size and style of religious adherents. The overall numbers are estimated be somewhere between 800,000 and 1 million adherents. The growth in house church activities has been regarded by the authorities as a threat to national security and has resulted in some periodic enforcement activities, including prosecutions in July 2017 against a number of Christian adherents. However, DFAT’s formal assessment was as follows:-
….small, self-contained house church congregations that maintain a low profile and do not seek to recruit new members are unlikely to attract adverse attention from authorities beyond monitoring and, possibly low-level harassment. Members of larger congregations that do engage in proselytisation and have connections to broader house church networks are more likely to face official repercussions, which may include arrest and prosecution.
The death penalty was said to apply for a number of crimes including drug-related offences and a range of moral crimes including blasphemy. The annual number of executions was reported at between 500 and 700, with approximately 60% of those for drug related offences. However, in January 2018 there was a formal suspension of the death penalty in relation to a wide range of drug-related crimes. Although the long-term impact of that suspension (and a related review of existing sentences) was unclear at the time of the DFAT report, a reasonable inference (having regard to the comparative number of executions with the overall estimates of the population of drug users) appears to be that the death penalty would be unlikely to be imposed for low-level drug possession offences.
Consistent with the impression that economic difficulties confront a large section of the population, the DFAT report noted that there was a significant incentive for emigration from Iran. Correspondingly there was also an incidence of return to the country. The DFAT report noted that the Iranian government co-operates with the International Organisation for Migration in conducting an assistance program for voluntary returnees. Those returnees were said not to appear to face any significant legislative or social barriers in returning to their home region, or in finding work and accommodation. That benign acceptance appears to extend to voluntary returnees who are failed asylum seekers at least in relation to activities in which they engaged outside Iran during their period of absence. On the other hand, the report noted that Iran has historically refused to accept involuntary returnees. Although that refusal changed as a result of a March 2018 Memorandum of Understanding between the Iranian and Australian Governments, the change only applies to persons who arrived in Australia after 19 March 2018, and is apparently also subject to a case by case assessment.
DEPARTMENT OF HOME AFFAIRS - COUNTRY OF ORIGIN INFORMATION SERVICES SECTION - 12 OCTOBER 2018
The June 2018 DFAT report, despite its generally sanguine assessment of the risks of official discrimination likely to be faced by members of the recognised Christian churches in Iran, leaves open the possibility of significant discrimination and societal harassment, as well as official sanction of active participation in “house churches” and any proselytising. The latter kinds of activities were, as I have previously indicated, at the heart of the reasons for the ToTK family’s flight from Iran in 2007. In the light of those various considerations I requested the Minister’s representatives to provide specific information about the Government’s policy in relation to Christian returnees to Iran. I was informed that there was no such formal policy, because of the Iranian government policy not to accept, or to issue travel documents for, involuntary returnees.
Also in response to my request for information about the current situation in Iran, the Minister’s representatives provided a Department of Home Affairs 12 October 2018 “common claims” report relating to Iran. That report discloses its intended purpose as providing updated information on the Iranian security environment, and its social welfare system, “to facilitate consideration of claims for protection visas in Australia.” The contents of the 12 October 2018 report, in relation to issues of religious freedom and tolerance in Iran, are to substantially the same effect as the June 2018 DFAT report that I have outlined above. It complements that report with a number of additional observations. They can be summarised in the following propositions
(a)There are approximately 20 recognised Christian churches in Iran. All Christians must be registered and, since 2012, only registered Christians can attend churches. However, recognised Christians will generally be left alone “unless they engage in activities perceived to undermine the Islamic Republic”
(b)Members of religious minorities (including the recognised religions) face discrimination in criminal and family law matters and also in education
(c)Congregation leaders and converts are often charged, on national security grounds, for organising or running unregistered churches, but were unlikely to be prosecuted for other more serious charges such as the capital offence of apostasy
(d)Despite some contradictory reports about the treatment of returnees, statements by Iranian officials consistently indicated that returnees have nothing to fear “if they have not committed crimes, but those that have committed crimes will be prosecuted upon return”. In addition, Iran interprets some religious acts as threats to the Islamic Republic, and therefore as within the category of crimes to be punished.
CONCLUSION ON HARDSHIP
I have previously indicated my view that the personal consequences of Mr ToTK’s removal to Iran would likely be crushing:- see paragraph 94 above. In addition, he would face, as the delegate found, “considerable hardship” in establishing and maintaining himself in Iran. Part of the reason for that conclusion is related to the likelihood of his family isolation, and his significant period of absence. Both of those matters would be significant obstacles in a society where cronyism and corruption are said to be endemic, and where significant unemployment is widespread. Although Mr ToTK was able to secure unskilled employment as a young man in his early 20’s who lived with his family, the situation is likely to be very different for a single and isolated man approaching 40 years of age and returning to Iran after a twelve year absence. Compounding those potential difficulties is Mr ToTK’s status as a member of a minority religion in a society whose structure “inevitably favours” the preponderant religious group. A further difficulty is the apparent absence of any available economic support if Mr ToTK were unable to secure employment.
THE UNDERLYING PROBLEM WITH THE “HARDSHIP” CONSIDERATION
Notwithstanding the ultimate conclusion that both the delegate and I have reached on the question of removal hardship, there is an underlying difficulty. The hypothesis that Mr ToTK will be removed from Australia is inconsistent with the information to which I have previously referred - that the Iranian government’s practice is to refuse to accept involuntary returnees from Australia:- see paragraph 16 above.
The practical consequence of that information is that there is no basis for current confidence Mr ToTK’s removal to Iran is “reasonably practicable”. Neither is there any basis for satisfaction that he will be removed to any other place:- see paragraph 17 above. Consequently, unless his visa is restored, he is liable to remain in immigration detention for a period whose limits are not foreseeable, and is potentially indefinite. That prospect was wholly unremarked upon in the delegate’s decision reasons despite the fact that, on any informed, fair and reasonable view, it was a permissibly relevant consideration:- see paragraph 18 above.
In MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123 SM Groom dealt with a similar situation in relation to the practice of the Government of Afghanistan. But in that case the information was merely asserted in the Minister’s submissions and was not the subject of any evidence. In those circumstances SM Groom concluded the Tribunal was obliged to assume that “MLQP” would be returned to Afghanistan. The present case is different in that (i) there is specific evidence, contained in documents intended to inform decision makers about information relevant to the exercise of visa related discretions and (ii) in response to my specific enquiry, the Minister has indicated that the Government has no policy in relation to involuntary Christian returnees to Iran. That evidence makes in inappropriate to make any assumption about Mr ToTK’s return to Iran. But if it were appropriate to make a return assumption similar to that made in MLQP, that result would merely reinforce the pertinence of the hardship conclusion I have expressed above.
Furthermore, even if it were appropriate to make the MLQP assumption, the problem still remains that Mr ToTK’s detention would in fact continue, and for a period whose limit is not presently foreseeable. That is a reality that cannot properly be dismissed as a matter of no significance.
In the review proceedings the Minister disputed the proposition that Mr ToTK faced the prospect of indefinite detention. The basis of that dispute was the statutory permissibility of Mr ToTK making an application for a protection visa, and the asserted possibility that such an application might be successful. The Minister encouraged the Tribunal to act on that basis and to put aside as “unnecessary to consider” in the present proceedings, the grounds on which Mr ToTK might assert his eligibility. This was put notwithstanding that Mr ToTK’s representative made it clear at the outset of the proceedings that she would positively contend for Mr ToTK’s protection visa eligibility. As an alternative or subsidiary submission, the Minister’s representative encouraged the Tribunal to reject as insubstantial Mr ToTK’s currently presented evidence about his persecution fears were he to be returned to Iran. Both parties’ submissions require evaluation of the protection visa eligibility criteria, against the nature of Mr ToTK’s persecution apprehensions, and the available information about the likely relevant justification for them.
NON-REFOULEMENT ISSUES
The submission advanced on Mr ToTK’s behalf was that, in considering the “another reason” criterion the Tribunal should address his persecution claim and conclude that he fell within the scope of Australia’s non-refoulement obligations. This was urged, despite the discouragement contained in cl 14.1(4) of Direction no. 65. That provision informs decision makers that if a non-citizen could make a valid protection visa application, then it is “unnecessary to determine” their persecution claims when considering the exercise of the revocation discretion under MigAct_58 s 501CA(4). That “unnecessary to determine” view has been the approach consistently taken in Ministerial delegate decisions about visa cancellation. It is a view that has been controversial:- see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR456 and Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68. In relation to decisions made by delegates obliged to comply with Direction no. 65 views have been expressed that (i) the “unnecessary to determine” instruction, to the extent that it instructs decision makers not to consider elements of the representations made by a former visa holder, is not consistent with the MigAct_58 discretion:- see FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34]-[35]; and (ii) the true effect of cl 12 (cl 14 is not relevantly distinguishable) is to oblige Ministerial delegates (and this Tribunal) to consider non-refoulement claims raised by non-citizens:- see FTYC and Minister for Immigration and Border Protection (Migration) [2018] AATA 20 at [35]-[39].
After the events involved in the BCR16 and BHA17 decisions, on 5 September 2017 the Minister issued another direction under MigAct_58 s 499 – Direction no. 75 – Refusal of Protection visa Relying on section 36(1C) and section 36(2C)(b). That Direction effectively requires delegates who are determining Protection visa applications to assess the applicant’s protection claims with reference to the Convention related (and complementary protection) eligibility criteria in MigAct_58 ss 36(2)(a) & 36(2)(aa), before addressing the potential application of any disqualifying criteria (ie.,MigAct_58 s 36(1C) and 36(2C)(b)) or residual character concerns. The permissibility of Ministerial decision makers (those not bound to comply with Direction no. 65) following that course has been accepted in authorities binding on this Tribunal:- Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28], [33]-[34]; Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [40]-[41].
Notwithstanding the “unnecessary to determine” guidance in Direction no. 65, there is nothing to preclude consideration of non-refoulement claims where they are apparently relevant to the “another reason” criterion. That consideration cannot, of course, result in the grant of a protection visa, but it may inform the exercise of the revocation discretion, both to the extent that it involves factual matters that overlap with, or colour, issues relating to hardship, and by directing attention to the “specific circumstances of the case”:- see Direction no. 65 cl 6.1(3) & 13.1(1).
The principal statutory provisions relevant to the consideration of any Protection visa application are set out in MigAct_58 ss 36(2)(a) & 36(2)(aa). To the extent they are potentially relevant to Mr ToTK’s circumstances, those criteria can be summarised (with a degree of unavoidable simplification) as follows:-
(a) the visa applicant is not a security risk, nor a person who has been convicted of a serious Australian or foreign offence (ie., amongst other things, one involving violence and punishable by a maximum term of not less than three years), and is considered a danger to the community: MigAct_58 ss 5, 5M & 36(1B), (1C) & (2C)
(b)(subject to certain presently irrelevant qualifications) the visa applicant is either:
(i)a national of another country who fears persecution (ie., “serious harm”) for reasons of religion (amongst others), faces a (not reasonably avoidable) “real chance” of the person’s persecution for that reason in their hypothesised destination country, no effective protection measures are available, and the “real chance” relates to all areas of that country:- see MigAct_58 ss 5H, 5J(1)-(5), 36(2)(a)
(ii)a person who would be at real risk of “significant harm” (ie., death, torture or treatment that is cruel, inhuman or degrading) in the country to which they might be removed from Australia, where the real risk could not be removed by relocation or protection by authorities,:- MigAct_58 36(2)(aa),(2A),(2B)
(c)the visa applicant has not failed to take all possible steps to avail themselves of entry and residence rights in other countries, where they would not be subject to a well-founded fear of relevant persecution:- MigAct_58 s 36(3) to (5A); and
(d)the visa applicant, when they make their application, must claim to satisfy one of the criteria summarised in subparagraph (b) above, and make specific claims as to why that criterion is satisfied: see MigAct_58 s 40; MigReg_94 reg 2.04 & Schedule 2 cl 866.211.
In addition to those specific eligibility criteria, a non-citizen’s inability to satisfy the “character test” is a permissible ground for refusal of a protection visa application:- see paragraph 7 above.
It will be readily apparent from the preceding summary that the complexity of the protection visa eligibility criteria requires careful attention to the formulated claims, and to the nature and quality of the evidence necessary to satisfy them. The mere fact of the previous grant of a visa with similar eligibility criteria cannot be taken to be probative of the non-citizen’s contemporary protection visa eligibility:- Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68 at [128].
I outlined earlier the nature of Mr ToTK’s articulated persecution fears:- see paragraph 97 above. I have also summarised the content of the currently available information about the situation likely to face Christians in Iran:- see paragraphs 97, 104 to 106 and 110 above. That information tends to substantiate the reality of Mr ToTK’s fears of religious persecution. But it also tends to highlight the appearance that his claims, at least to the extent they have been articulated up to the present time, are of a general kind.
A generalised apprehension of potential harm is not sufficient to address adequately the specific matters contained in the protection visa eligibility criteria. In NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 Allsop CJ and Katzmann J made the following comment about the importance of particularity and personal information in the assessment of non-refoulement claims. (Their Honours specifically addressed the 1951 Convention, but what they said applies equally to the complementary protection criteria.)
[22] The nature of the assessment of status under Art 1A(2) is generally one that requires close attention to the personal circumstances and position of the claimant. The Refugees Convention is directed to the human condition of individuals, and their posited flight from persecution. Rarely (save for clear cases of systematic persecution against groups) can a judgment be made about whether an individual is entitled to the status of a refugee by reference to general considerations divorced from the individual’s personal circumstances.
Against that background the currently doubtful propositions involved in Mr ToTK’s attempt to rely on Australia’s non-refoulement obligations are (i) that his fears are well founded, (ii) that any risk he faces could not be removed by his relocation away from Oroumiyeh, and (iii) that he would not be able to rely on the Iranian authorities for protection. Each of those propositions appears doubtful – because of (i) the constitutional provision for freedom of religion, (ii) Mr ToTK’s membership of a recognised Christian Church, (iii) the absence of evidence that he personally engaged in, or was pursued by the authorities for having engaged in, proselytising activities, (iv) the appearance that the religious hostility directed at the ToTK family in 2007 was significantly attributable to the conduct of the family of DTK’s disappointed former girlfriend, (v) the absence of any evidentiary basis for concluding that 11 years later, that conduct would likely be revisited, in relation to Mr ToTK personally, and (vi) the information that members of Christian churches in Iran are generally allowed to practice their faith, without risk of significant harm, provided they do not engage in proselytising activities.
The matters I have addressed in the preceding paragraph provide the reasons why, on the currently available information, I am not satisfied that there is a realistic prospect of Mr ToTK being able to demonstrate that his circumstances attract Australia’s international non-refoulement obligations. In that respect I accept the Minister’s alternative submission that (based on the currently available information) Mr ToTK’s eligibility claims appear insubstantial.
That view does not preclude the possibility of Mr ToTK subsequently submitting a Protection visa application with additional, apparently cogent, supporting information. But it does cast doubt on the appropriateness of Mr ToTK’s continued indefinite detention in circumstances where he has not made a formal protection visa application – despite having been in immigration detention since January this year – and where, even if he were successful in establishing his entitlement to the benefit of Australia’s non-refoulement obligations, a question would still remain about his ability to satisfy the Minister about his character. In that regard there is, in my view, an unacceptable inconsistency in the proposition underlying the position adopted by the Minister in the present matter. That proposition appears to be that Mr ToTK’s inability to satisfy the “character test” (including the conduct involved in his offences) precludes favourable exercise of the non-revocation discretion, but might not preclude favourable exercise of the Minister’s discretion in relation to the grant of a protection visa.
In my view the appropriate way to evaluate the present matter is that Mr ToTK presently faces the prospect of indefinite immigration detention unless the visa cancellation decision is revoked. It is inappropriate to speculate on the possibility of the Ministerial exercise of either the “residence determination” discretion in MigAct_58 s 197AB or the public interest discretion in MigAct_58 s 195A:- NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [117]-[119] & [131]. Nor is there a good reason to entertain speculation that the Minister, if Mr ToTK makes and substantiates a claim for the benefit of Australia’s non-refoulment obligations, might ultimately take a different view of Mr ToTK’s ability (or requirement) to satisfy the “character test” than he has taken in the present proceedings.
OVERALL EVALUATION
My concern about the prospect of Mr ToTK’s potentially indefinite detention unless the visa cancellation decision is revoked is not a determinative consideration. It is simply one of the permissibly relevant considerations. It sits as a counterpoint to the, as it presently appears, artificial exercise of hypothesising about the hardships Mr ToTK is likely to face if he were ever to be returned to Iran. The more immediately relevant consideration is the hardship he, and his parents will face, whilst he continues to be detained in immigration detention. That hardship, with no foreseeable limit to the duration of his detention, and the correspondingly never completely eliminated prospect of his ultimate return to Iran at some unpredictable future time, must be regarded as significant.
In the present case, notwithstanding my view that the two relevant primary considerations favour maintaining the cancellation decision, the preferable course is to revoke that decision. That is the preferable course for essentially these reasons:-
(a)Mr ToTK has demonstrated in the past (ie., up until late 2015 when his drug taking seems to have commenced) an ability to conform with Australia’s expectations of visa holders, and to contribute to the community.
(b)Mr ToTK has not committed any offences that have been regarded by the courts as particularly grave or serious.
(c)There is good reason to believe that Mr ToTK’s likelihood of future offending in a relevantly harmful way is very significantly reduced by the salutary effect of the visa cancellation decision and his subsequent awareness of the exquisitely vulnerable position in which he will be placed by any further offending.
(d)There is a correspondingly good reason to regard the extension of a “further chance” to Mr ToTK as an appropriate exercise of the discretion, and one apt to adequately pursue the government objective of appropriate community protection.
(e)That “good reason” is complemented by the criteria that governed Mr ToTK’s original visa grant, and by the reasons articulated in Direction no. 65 for its differentiation between visa applicants and holders of substantive visas:- see paragraph 23 above.
(f)The interests of Mr ToTK’s Australian resident parents clearly favour exercise of the revocation discretion, and their interests merit significant weight having regard to the trauma of their past, their own commitment to Australia, and Mr ToTK’s status as their only Australian resident offspring and long time member of their family unit.
(g)The recognition that if Mr ToTK were ever to be removed to Iran he would indeed face very considerable hardships – as both I and the delegate have found.
Schedule - ToTK and Minister for Home Affairs
Convictions and Offences - summary
Reasons paragraphs 27 & 28
Conviction Age Traffic Dishonesty Drugs Violence Other Offences Penalty (custodial) Penalty (actual sentence) Bond or Parole conditions No
No of offences(cumulative)
Date
Type
max
actual
Custodial sentence // [ICO]
Bond
Fine
Event
(Court)
months
months
Start
Non-parole
End
months
$
1
30
1
22-Apr-12
15-Jun-12
Drive with low range prescribed alcohol concentration
250
disqf'd 15/4/12 to 14/8/12
2
30
2
22-Apr-12
15-Jun-12
Never licenced person drive on road - first offence
250
3
30
3
22-Apr-12
15-Jun-12
Disobey no left turn sign
100
17-Nov-15
Learner licence suspended - fine default
26-May-16
Formal police warning not to drive - licence suspended
4
35
4
22-Jun-16
23-Aug-16
Drive whilst licence suspended
6
500
disq'fd 3 months from 23/8/16
5
35
1
22-Jun-16
23-Aug-16
Driver/rider state false name or address
500
6
35
5
26-Jul-16
13-Mar-17
Drive whilst licence suspended
6
400
disqf'd 3 months from 13/3/2017
7
35
1
28-Sep-16
2-Nov-16
Possess prohibited drug
24
1,000
8
35
6
12-Oct-16
2-Nov-16
Drive whils disqualified (1st offence)
6
2,000
disqf'd 12 months from 23/08/2019
9
35
2
9-Nov-16
7-Dec-16
Custody of knife in public place
24
500
10
35
1
9-Nov-16
7-Dec-16
Obtain financial advantage by deception - (value $20)
240
500
11
35
2
30-Nov-16
9-Jan-17
Larceny - (value $30)
60
500
12
35
1
1-Dec-16
10-May-17
Reckless wounding
84
12
12(s12)
2,500
13
35
3
26-Dec-16
30-Jan-17
Shoplifting - (value $345)
60
500
14
35
4
26-Dec-16
30-Jan-17
Goods in personal custody suspected stolen (non m/v)
6
500
15
35
2
26-Dec-16
30-Jan-17
Destroy or damage property <$2000
60
500
16
35
5
22-Feb-17
20-Apr-17
Goods in personal custody suspected stolen (non m/v)
6
500
17
35
3
22-Feb-17
20-Apr-17
Custody of knife in public place (2nd offence)
24
200
18
35
4
10-Apr-17
10-May-17
Fail to appear in accordance with bail (1-Dec-16 offence)
36
S10a conviction
12-Sep-17
Reckless wounding (call up - 10 May 2017 bond)
12-Sep-17
12-Sep-18
ICO - non-custodial 12 month Intensive Correction Order
19
35
2
20-Apr-17
12-Sep-17
Possess prohibited drug
24
s10A conviction
20
35
5
20-Apr-17
12-Sep-17
Custody of knife in public place (subsqnt offence)
24
12(s9)
counselling, ed dev'ment, D & A rehab
21
35
6
20-Apr-17
12-Sep-17
Rider not wear approved bicycle helmet
12(s9)
counselling, ed dev'ment, D & A rehab
22
35
6
3-May-17
12-Sep-17
Aggravated break and enter; in company steal - (value = $2,240)
240
8
12-Sep-17
11-May-18
ICO - non-custodial 8 month Intensive Correction Order
23
35
3
3-May-17
12-Sep-17
Possess prohibited drug
24
12(s9)
24
35
7
19-May-17
12-Sep-17
Drive motor vehicle whilst disqualified (2nd offence)
12
12(s9)
counselling etc - disq'fd 23/8/2020 to 23/8/2022
25
35
4
19-May-17
12-Sep-17
Possess equipment for administer prohibited drugs
24
12(s9)
counselling, ed dev'ment, D & A rehab
22-May-17
On remand - (3 May 2017 aggravated break and enter charge)
22-May-17
12-Sep-17
Sep-Nov 17
29-Nov-17
29-Nov-17
14-Feb-18
Parole Authority - revocation of ICO
14-Feb-18
Parole Authority - reinstatement of ICO
14-Feb-18
Immigration Detention
Totals
7
6
4
2
6
Totals
25
Note 1:
"(s 9)":- a release order, subject to good behaviour conditions, imposed instead of a sentence - s 9 of the (NSW) Crimes (Sentencing Procedure) Act (1999)
Note 2: "(s 10)":- a conditional release order where no conviction was recorded - s 10 (NSW) Crimes (Sentencing Procedure) Act (1999) Note 3: "(s 10A) :- a matter where a conviction was recorded, but no penalty imposed - s 10A (NSW) Crimes (Sentencing Procedure) Act (1999) Note 4: "(s 12)":- a sentence suspended, conditional on good behaviour, under s 12 of the (NSW) Crimes (Sentencing Procedure) Act (1999) -a provision repealed in 2017 (effective from 24-Sep-18) Note 5: "ICO":- an order under ss 7 & 66 to 73 of the (NSW) Crimes (Sentencing Procedure) Act (1999) (as at September 2017)
I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member
.......................[sgd].............................................
Associate
Dated: 3 December 2018
Date(s) of hearing: 12, 13, 16 & 22 November 2018 Counsel for the Applicant: Ms U Okereke-Fisher Solicitors for the Applicant: Shiba Legal Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
0
39
0