WDCH and Minister for Home Affairs (Migration)

WDCH and Minister for Home Affairs (Migration) [2018] AATA 1052 (26 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0756
Re:WDCH
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:26 April 2018
Place:Sydney

The Tribunal affirms the decision under review.
............................[sgd]............................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – employer nomination scheme visa – failure to pass character test – substantial criminal record – sentenced to a term of imprisonment of 12 months or more – whether there is another reason to revoke the cancellation decision – Direction 65 applied – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Do and Minister for Immigration and Border Protection [2016] AATA 390
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
26 April 2018
INTRODUCTION

The applicant is 22 years old. He is a citizen of South Africa who first arrived in Australia on 9 September 2008.
On 25 January 2017, the applicant’s class BW 856 employer nomination scheme visa (the visa) was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The reason for the mandatory cancellation of the applicant’s visa was he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
The applicant made a request on 22 February 2017 for revocation of the mandatory visa cancellation decision under subsection 501CA(4)(a) of the Act. On 1 December 2017, the applicant’s representative made further submissions.
On 5 February 2018, the Minister’s delegate decided not to revoke the cancellation decision and, on 12 February 2018, the applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.
The matter was heard in Sydney on 11 April 2018. The applicant attended the hearing and gave evidence by videoconference from Christmas Island. He did not have legal representation but was assisted by his mother, who attended the hearing in person and gave evidence.
BACKGROUND
The applicant was born in South Africa in 1995. He first arrived in Australia in 2008, when he was 13 years old, with his parents and younger sister.
The evidence provided to the Tribunal by the applicant and his mother was that he had difficulties with delayed learning from a young age and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was six years old. His mother said he had a short attention span and his behaviour at school was disruptive. He was bullied, involved in physical fights and became known as “the naughty child”, which would make the applicant angry, upset and depressed. He later moved to a school for children with learning difficulties and his situation improved. His mother’s evidence was that the applicant was under the care of a paediatrician in South Africa, and also received assistance from an occupational therapist and speech therapist. The applicant’s ADHD was initially treated with Ritalin and later Concerta; the applicant ceased taking medication in 2011.
After he arrived in Australia, the applicant attended school until he was expelled in year 9. The applicant’s mother reported that he was racially abused and bullied at school, particularly after his diagnosis of ADHD was disclosed. The applicant was employed in 2013 as a warehouse clerk. In 2015 and 2016, he worked as a kitchen hand and was offered an apprenticeship as a chef. An offer to resume this apprenticeship remains available to the applicant if the cancellation of his visa is revoked.
The applicant returned to South Africa on two occasions, for brief periods of time, in 2010 and 2011. The family of the applicant’s mother, including her parents and siblings and their families, still reside in South Africa. The applicant’s grandfather is receiving palliative care and his grandmother is elderly and caring for her husband. The family of the applicant’s father also still live in South Africa. The applicant’s mother gave evidence to the Tribunal that her family members were “battling” and could neither afford nor were willing to care for the applicant if he returns to South Africa. Her husband’s family were also unwilling to assist or accommodate the applicant, even if the applicant’s parents provide financial support.
Criminal record
The applicant’s National Police Certificate dated 16 February 2017 shows he was convicted of six offences as an adult from 2014 to 2016. These include the following criminal offences:
·30 January 2014 – conviction in Sutherland Local Court: stalk/intimidate intend fear physical etc harm (personal), possess unauthorised prohibited firearm, assault occasioning actual bodily harm – imprisonment 16 months.
·26 September 2016 – conviction in Sutherland Local Court: assault occasioning actual bodily harm, possess prohibited drug, common assault – imprisonment 20 months.[1]
[1] Exhibit G, G02, pages 27-28.
Between 6 March 2012 and 30 January 2014, the applicant was convicted of 22 offences in the children’s courts. These offences include aggravated robbery (three counts), shoplifting (three counts), stalk/intimidate intend fear of physical/mental harm (six counts) and reckless wounding (two counts).[2] For these offences, the applicant received various control orders, suspended sentences and supervised juvenile justice service.
[2] Exhibit G, G02, pages 28-29.
The applicant has been incarcerated for two periods; from 23 September 2013 to 20 August 2014, and from 9 March 2016 until his present detention in immigration. There is no evidence before the Tribunal that the applicant has offended while in prison or in immigration detention.
RELEVANT LEGISLATION AND ISSUES
The power to revoke a visa cancellation
Pursuant to section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test. A person is taken to not pass the character test if he or she has a “substantial criminal record”. A person who has been sentenced to a term of imprisonment of 12 months or more has a “substantial criminal record” as defined in sections 501(6)(a) and (7) of the Act.
Under section 501CA(4) of the Act, the Minister (and therefore the Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or “there is another reason why the original decision should be revoked”.
The applicant has a “substantial criminal record” and so does not pass the character test. This is not disputed by the applicant.
The Tribunal must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Principles set out in clause 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[emphasis added]
Informed by the Principles, the Tribunal must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under section 501CA of the Act. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:
(a)international non-refoulement obligations;
(b)strength, nature and duration of the applicant’s ties to Australia; and
(c)extent of impediments if the applicant is removed from Australia.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that the Tribunal consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of the applicant’s conduct to date.
The applicant was first incarcerated for his criminal offending as an adult on 23 September 2013 when he was 18 years old.
On 30 January 2014, the applicant appeared in the Sutherland Local Court in relation to three offences – assault occasioning actual bodily harm of a person, intimidating a person and possessing an unauthorised prohibited firearm – which relate to an incident on 22 September 2013 where the applicant held an imitation calibre Kommer pistol to the head of the victim and head-butted him.
The sentencing remarks of Magistrate Budgen on 30 January 2014 in relation to these offences included the following findings:
(1) Although the defendant had just turned 18 as at the time of these offences he had already accumulated a criminal record which had nine matters on it including robbery, aggravated robbery, intimidation, reckless wounding and it was for that matter of reckless wounding that he was serving a suspended sentence when these offences were committed.
(2) He had developed at that stage a drug and alcohol problem at an early age. The pre-sentence report indicates that he has used since he has gone into custody and he has already done the PALM program and relapsed so that does not give the court any great confidence that he will not use again. I know that his mother is in court… she is desperate that he does not use again, use drugs or alcohol to the extent that he gets himself into trouble. She would like him not to use drugs ever again in his life.
(3) Through the Probation and Parole report there is remorse there. I note the Probation and Parole officer indicated… that the defendant was still at that stage attempting to minimise the seriousness of the offences. The officer also indicated the defendant is unsuitable for a community service order because of the drug and alcohol issue… The officer also referred to the defendant’s ADHD and there is a number of references to ADHD in the defendant’s life in the different reports… [3]
[3] Exhibit G, G02, pages 43-44.
Magistrate Budgen acknowledged in his sentencing remarks that the applicant appeared to understand the combined detrimental effect of his ADHD and drug and alcohol use, and he applied special circumstances in his sentencing because of the applicant’s age, remorse and realistic prospects of rehabilitation.[4]
[4] Exhibit G, G02, page 44.
At the Tribunal hearing, the Minister’s representative produced a letter addressed to the applicant from the Department of Immigration and Border Protection (the Department) dated 20 November 2014, three months after the applicant was released from prison after his first period of incarceration. This letter advised the applicant that consideration was being given to cancelling his visa and provided the applicant with an “opportunity to comment or provide information on whether [he passes] the character test”.[5] Neither the applicant nor his mother could recall receiving this letter from the Department. The applicant’s mother noted the letter was sent to an address she moved from in July 2014, four months prior to the date of the letter. The Minister’s representative at the Tribunal hearing was also unable to provide any evidence to show the applicant either received or responded to this letter.
[5] Exhibit R2.
The applicant’s National Police Certificate dated 16 February 2017 shows he was convicted of three offences in the Sutherland Local Court on 26 September 2016. These offences are described in the sentencing remarks of Magistrate Walsh, which set out the following agreed facts before the Court:
·The victim knew the applicant from the incident on 22 September 2013 where the applicant held an imitation firearm to the head of the victim and head-butted him (the offences described in paragraph 26 above).
·About six months earlier (September 2015), the applicant had apologised to the victim for the incident in September 2013 and they had shaken hands.
·The victim attended a party on 5 March 2016 and consumed alcohol. He left the party at about 11:40pm, without any contact with the applicant. The victim phoned a friend to pick him up and heard someone say his name from behind him.
·The victim turned and was immediately punched to the head by the applicant, which knocked the victim to the ground. The victim attempted to stand up and was punched again to the head by the applicant. The victim was then lying on his back and the applicant continued to throw punches at the victim, connecting with his head. The victim attempted to protect himself by placing his hands in front of his head. At one stage the applicant began kicking the victim. During the assault the applicant said to the victim ‘you snitch’ and ‘you’re the reason I went to gaol’.
·The assault lasted a few minutes before other people restrained the applicant who then ran away.
·The victim was taken to emergency at St George Hospital; he suffered “pooling or a collection of blood inside his right eye, a displaced fracture of the inferior wall of his right orbit – that is the eye socket”.[6]
[6] Exhibit G, G02, pages 35-36.
Magistrate Walsh assessed the “objective seriousness of the [applicant’s] offending behaviour” as “very serious” and “significant”. [7] He concluded:
This was an unprovoked attack on a man who had turned the other way and was speaking on the telephone whose attention was called to him by uttering [his name] such that he would turn around. There was no argument. This was an unprovoked attack in the street which degenerated not only into punching when the man tried to get to his feet into kicking the man whilst on the ground…[8]
[7] Exhibit G, G02, page 40.
[8] Exhibit G, G02, page 38.
Magistrate Walsh’s sentencing remarks on 26 September 2016 also refer to an incident in the early hours of 6 March 2016, where the applicant pushed a woman “several times to the chest and once on the neck and chin [which caused her] to stumble back several metres and feel immediate pain to her neck and jaw”.[9]
[9] Exhibit G, G02, page 36.
In considering the relevant factors set out in clause 13.1.1 of the Direction, I find that:
·The applicant’s offences include committing serious and violent offences.
·The applicant’s record of criminal offending shows he has been convicted of six offences as an adult and has been sentenced to prison for periods of 16 months and 20 months. He has a further 22 convictions in the children’s courts between March 2012 and January 2014.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
·There is insufficient evidence before the Tribunal to be satisfied the applicant received a formal written warning from the Department that any further offending would result in the cancellation of his visa. I note, however, that the sentencing remarks of Magistrate Walsh on 26 September 2016 indicate that the applicant’s legal representative was aware that a “continuous 12 months imprisonment will affect his immigration status in terms that could affect his permanent residence to be cancelled by the Minister…”.[10]
·There is no evidence before the Tribunal that the applicant has committed any offences while he was incarcerated or since his visa was cancelled in January 2017.
·There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department.
[10] Exhibit G, G02, page 39.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
I must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

A personal statement by the applicant included in his representative’s submission to the Minister on 1 December 2017 noted that he has “learnt a lot from this experience” and “would be so grateful for the opportunity to prove that I can be a law-abiding citizen and to prove that I can be a positive contribution to the Australian community”.[11]
[11] Exhibit G, G02, page 72.
Mr Sam Albassit (psychologist) produced a psychological assessment of the applicant on 23 September 2016 in which he reported the applicant suffers chronic post-traumatic stress disorder (PTSD) with features of major anxiety with paranoia, in addition to his ADHD and learning disability.[12] Mr Albassit also reported the applicant told him that, when he was about seven or eight years old, he witnessed a man sexually assaulting two women on his way home from school. The applicant had not previously disclosed this incident to anyone and Mr Albassit diagnosed the applicant with PTSD because he continued to experience traumatic and intrusive memories from this incident. He opined that the applicant’s:
…untreated symptomatology [for chronic PTSD and anxiety] with the lack of insight and self-destructive behaviours… has significantly impacted [the applicant’s] ability to make clear choices and decisions… It appears as though [the applicant] acts irrationally and without thought of consequence and deliberation.[13]
[12] Exhibit G, G02, page 78.
[13] Exhibit G, G02, page 81.
I note that Magistrate Walsh, in his sentencing remarks on 26 September 2016, considered and strongly criticised Mr Albassit’s psychological assessment of the applicant, particularly in the reporting of offences that occurred on 5 March 2016.[14] Magistrate Walsh then made the following remarks regarding the applicant’s offending:
The offender has had many opportunities to be supervised and to change. He has not grasped it at all. I would be satisfied that there are mental health conditions and that I should take that into account…
One of the causes of his criminal behaviour, it seems, is the reliance upon cannabis and alcohol…
There is no causal relationship, in my view, with any medical condition from which [the applicant] suffers and the offending behaviour. He is simply a person who is angry and assaults people. That is borne out by his record.[15]
[14] Exhibit G, G02, page 38.
[15] Exhibit G, G02, pages 40-41.
At the Tribunal hearing, the applicant was asked to comment on his offending behaviour. He either minimised the seriousness of his behaviour (as observed in Magistrate Budgen’s sentencing remarks set out at paragraph 27 above) or commented his behaviour was “to protect himself” or excused his behaviour as a reaction to being provoked by other people. The applicant displayed little remorse for or insight to the impact of his offending behaviour on any of the victims of his assaults, even when he was explicitly asked this question at the hearing. He only described the effect of his behaviour on his partner and immediate family.
Based on the evidence before the Tribunal, I am not persuaded the applicant will not reoffend should he be released into the Australian community. His behaviour shows a consistent pattern of serious and violent offending and he demonstrates minimal understanding about the consequences of his behaviour on others. While I note the applicant has said he would like to attend counselling if he remains in Australia, there is no evidence before the Tribunal that he has chosen to participate successfully in counselling or rehabilitation programs while in prison or immigration detention.
In considering the nature of the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences of assault occasioning actual bodily harm, common assault, and aggravated robbery.
On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
The best interests of minor children in Australia affected by the decision
Clause 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant does not have any children. However, his previous employer provided a statement dated 8 April 2016 in which he noted that the applicant had become a close friend to his family over the past six months and his six-year-old “son looks up to him and has an uncle like relationship with him”.[16]
[16] Exhibit G, G02, page 87.
There is no evidence before the Tribunal that the applicant assumed a parental role in relation to this child over this six months period or there has been any adverse impact on this child due to being separated from the applicant. I am not satisfied that this primary consideration has any significant weight or relevance in this matter.
The expectations of the Australian community
The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (clause 13.3(1)).
The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note a previous decision by the Tribunal, which states:
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done. [emphasis added][17]
[17] Do and Minister for Immigration and Border Protection [2016] AATA 390, [23].
Having regard to the Principles in clause 6.3 of the Direction (and set out in paragraph 19 above), I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[18] I must therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[18] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant arrived in Australia in 2008 when he was 13 years old. He attended high school until year 9. Given the applicant’s age and periods of incarceration, he has limited employment experience. His previous employer, in a written statement on 8 April 2016, made the following observations about the applicant:
…I offered him a position as a full time apprentice chef… In the last six months [he] has developed in leaps and bounds as an apprentice. He has a 100% attendance rate at both work and college… His head teacher [at college] is of the same opinion that [he] has a big future in the hospitality industry….
From very early on… [he] was honest and upfront about his past convictions. He spoke of his past as a great learning curve and something he was not at all proud of. [He] is a very honest and reliable young man…
I truly believe that he is a good person and upon his release I will once again mentor him to become one of the leading professionals in our industry.[19]
[19] Exhibit G, G02, page 87.
I also note the applicant has provided character references from immediate family members, his girlfriend and family friends. These references set out the effect on the applicant’s family, particularly his mother and sister, if the applicant’s visa cancellation is not revoked and his family members are separated. The applicant’s girlfriend also states that she has “found it extremely hard to cope since he has been moved to Christmas Island, where [she is] unable to visit him”.[20]
[20] Exhibit G, G02, page 92.
The applicant’s sister provided a written statement filed on 6 April 2018 and gave oral evidence to the Tribunal. She observed that he was “young and naïve and an angry guy” when he committed his crimes, and their “parents separating did not help [her] brother”.[21] She noted that her brother “is also a loving person and is always ready to help the community”.
[21] Exhibit A2.
There is some evidence from the applicant, supported by the evidence of his mother and sister, that he played community club soccer and coached little league soccer.
I accept the psychological assessment of Mr Albassit that the applicant has been diagnosed with ADHD, PTSD and learning difficulties. The applicant’s mother provided extensive evidence at the Tribunal hearing about the effect of these conditions on the applicant’s behaviour. She noted that he had been bullied from a young age at school in South Africa and also experienced bullying and racial abuse at school in Australia. She explained that recently finding out about the incident the applicant had witnessed when he was seven to eight years old in South Africa and which had caused Mr Albassit to diagnose the applicant with PTSD made some sense of the applicant’s behaviour and reactions to situations over the years.
In a written statement filed on 6 April 2018, the applicant’s mother asserted that she and her husband left South Africa to give their “children a better and safer life”. She expressed concern about the current crime situation in South Africa and noted their “son does not have the mentality to sustain a safe life in SA [South Africa]…he has had enough time to reflect on his wrongs” and he “will not be able to cope mentally being around people who don’t know him”.[22]
[22] Exhibit A1.
Despite his relatively young age, the applicant has been convicted of six criminal offences as an adult, relating to two separate occasions in 2013 and 2016 involving the same victim. He has also been convicted of 22 offences as a minor. As described in paragraph 33, his offending shows a pattern of committing serious and violent offences and he has continued to offend despite repeated warnings from the judicial system.
In assessing all the relevant evidence, it is my view that the Australian community would have limited consideration for the applicant’s employment experiences and community contributions given the frequency and seriousness of his crimes. I consider the separation of the applicant’s parents may have influenced his behaviour. I understand the applicant’s conditions of ADHD and PTSD also may have affected his behaviour, including affecting his capacity to show insight into the impact of his offending behaviour. I also have sympathy for the applicant’s family situation, noting that his mother feels she must accompany him if he returns to South Africa.
On balance, however, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at clause 14 that other considerations must be taken into account where relevant.
The Tribunal was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There is no evidence of any impact on victims from the applicant’s criminal behaviour.
The relevant other considerations I must take into account are
(a)international non-refoulement obligations;
(b)the strength, nature and duration of the applicant’s ties to Australia; and
(c)the extent of impediments if the applicant is removed from Australia.
I first consider international non-refoulement obligations. The applicant’s mother made the following submissions in her written statement filed with the Tribunal on 6 April 2018:
South Africa is a hard and harsh country who don’t take well to migrants who have returned. Right now, South Africa as a notable high rate of murders, assaults, rapes and other violent crimes, compared to other countries…
I am scared for my son’s life as he will not live long as he will be murdered in front of people on the streets.
My son has Human Rights too. He has the right that his non refoulment obligations were owed. He should not be sent to a country where he is going to be subjected to horrific crimes and violence. [23] [reproduced as in original]
[23] Exhibit A1.
At the Tribunal hearing, the applicant’s mother reiterated her concerns if her son returns to South Africa. She stated that South Africa is a hard country and not sympathetic towards people who migrate overseas and then return. She also outlined concern for her son given her knowledge of him witnessing the incident that has been outlined in paragraph 37 above. Relying on her “gut instinct”, she told the Tribunal she feared that the person who perpetrated the sexual assaults knew the applicant had witnessed the incident and would hurt him. The applicant also confirmed to the Tribunal that the perpetrator would recognise him and that he still resided in the same neighbourhood in South Africa.
While I have sympathy for the fear expressed by the applicant’s mother, I have difficulties accepting the postulations as described by the applicant and his mother. Firstly, the applicant resided in the neighbourhood for about five years after witnessing this crime, which provided significant time and opportunity for the perpetrator to hurt the applicant if he intended to do so. The perpetrator would also have had opportunities to hurt the applicant when he returned to South Africa in 2010 and 2011. Secondly, the applicant is not required to live in the same neighbourhood (or indeed the same city) if he returns to South Africa. Finally, there is no objective evidence before the Tribunal that the applicant has ever received any personal threats.
On the basis of the evidence currently before the Tribunal, I am satisfied there are no international non-refoulement obligations. I also note that it is open to the applicant to apply for a protection visa if these circumstances change.
I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to South Africa.
The applicant’s mother, father and younger sister reside in Australia. The evidence of the applicant’s mother is that she feels she must accompany her son if he returns to South Africa. The applicant’s sister told the Tribunal her home is now in Australia and she would not leave to go to South Africa. The Tribunal understands this places the applicant’s mother in a situation where she must either live in South Africa with her son or in Australia with her daughter who is aged 21 years old.
There is also a statement from the applicant’s girlfriend dated 24 October 2017, noting that she has been in relationship with the applicant for over three years. The applicant told the Tribunal he and his girlfriend have discussed their future and marriage; the Tribunal accepts this is a genuine relationship.
I find that consideration of the applicant’s ties to Australia weighs strongly in his favour.
The impediments to removing the applicant from Australia rely on his capacity to live and work in South Africa. Pursuant to clause 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant’s mother told the Tribunal that neither her nor her husband’s extended family in South Africa would provide her son with accommodation or assistance, even if they provided financial support. She also noted that if she accompanied her son to South Africa, she would have difficulties finding accommodation and paid work. She said the applicant would have difficulties finding employment in the hospitality industry and accessing social and medical support for his ADHD and PTSD.
There is nothing before me to refute these contentions by the applicant’s mother. I further note an attachment to the respondent’s statement of facts, issues and contentions dated 28 March 2018 states that a wide range of psychological health services are available in South Africa, but psychological health care is underfunded and under-resourced.
As the applicant departed South Africa in 2008 and visited in 2010 and 2011, the Tribunal is satisfied he would have limited cultural and language difficulties with living in South Africa.
I find that there are impediments – primarily concerning the applicant’s ability to access accommodation, employment and psychological care – that would affect the applicant commencing a life in South Africa.
CONCLUSION
The first and third primary considerations weigh heavily against the revocation of the cancellation decision, and the second primary consideration has minimal relevance to this matter.
In regard to the other considerations, I find there is no substantiated evidence of international non-refoulement obligations for the applicant. The applicant’s ties to Australia and the impediments to his removal from Australia weigh strongly in his favour. However, the weight I give these other considerations is low and they do not outweigh the primary considerations.
In these circumstances, it is not appropriate for me to revoke the decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

............................[sgd]............................................
Associate
Dated: 26 April 2018

Date of hearing: 11 April 2018

Advocate for the Applicant: Applicant’s mother

Solicitors for the Respondent: Ms L Crick, Clayton Utz

[2018] AATA 1052

26 April 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Proportionality

Remedies

Date of hearing:	11 April 2018
Advocate for the Applicant:	Applicant’s mother
Solicitors for the Respondent:	Ms L Crick, Clayton Utz