WRFG and Minister for Home Affairs (Migration)

WRFG and Minister for Home Affairs (Migration) [2019] AATA 916 (12 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0645
GENERAL DIVISION  )
Re: WRFG
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM TO DECISION IN APPLICATION 2019/0645
TRIBUNAL:  Deputy President P Britten-Jones
DATE OF CORRIGENDUM:            15 May 2019
PLACE:            Adelaide
The Tribunal amends its decision of 12 April 2019 by:

correcting the second case cited under “Cases” on page 2 of the reasons such that it reads “DMH16 v Minister for Immigration and Border Protection [2017] FCA 448”;

correcting the case cited at [51] on page 15 of the reasons such that it reads “DMH16 v Minister for Immigration and Border Protection [2017] FCA 448”; and

deleting the word “a” in the penultimate sentence of [57].
……………………[sgnd]………………….
  P BRITTEN-JONES
  (Deputy President)

Division:GENERAL DIVISION
File Number(s): 2019/0645
Re:WRFG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:12 April 2019
Place:Adelaide

The Tribunal affirms the decision under review.
.............................[sgnd]...........................................
Deputy President P Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – serious offending against women - whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 501(3A), 501(6)(a) and 501CA(4)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DRH16 v Minister for Immigration and Border Protection [2017] FCA 448
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NBMZ v Minister for Immigration & Border Protection (2014) 220 FCR 1
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President P Britten-Jones
Introduction

The applicant is an Afghani national who fled his home country after his father and brother were killed by the Taliban. Together with his wife and children, the applicant fled to Pakistan where he resided for an extended period of time. Once he had earned enough money, the applicant left his family and embarked on a journey by boat in search of a better life.
On 4 January 2010, the applicant’s vessel was intercepted by Australian authorities and he was then detained at Christmas Island Immigration and Detention Centre. On 8 April 2010, a delegate of the Minister for Immigration and Citizenship deemed that the applicant is owed protection obligations and was granted a Protection (Class XA) Subclass 866 Permanent Protection visa (the visa).
After leaving the Christmas Island Immigration and Detention Centre, the applicant settled down in Queensland. He gained employment with a meat-processing company.
On 14 December 2010, the applicant returned to Pakistan to visit his family. He stayed in Pakistan for 6 months and returned to Australia on 8 June 2011. Upon his return, the applicant moved to South Australia. Through the Australian Refugee Association, the applicant gained employment in a different meat processing factory.
From 2012, the applicant committed numerous criminal acts which will be discussed further below. He was imprisoned and his visa was cancelled mandatorily in May 2016 under s 501(3A) of the Migration Act 1958 (the Act) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment. In June 2016, the applicant sought revocation of the cancellation decision. On 29 January 2019, a delegate of the Minister for Home Affairs decided under s 501CA(4) not to revoke the cancellation decision. The applicant has now applied to the Tribunal for a review of the decision of the Minister’s delegate to refuse to revoke the cancellation decision.
Issues
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act, as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act.
The only issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 79 (Direction 79), there is another reason why the mandatory visa cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must find that there is another reason why the cancellation decision should be revoked.[1]
[1] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
The Offending
There were three serious convictions plus a driving offence. The applicant was convicted for driving under the influence for which he received a fine and had his driver’s licence disqualified for eight months in November 2012.
The first serious offence for which the applicant was convicted was an assault causing harm against a woman in October 2013. He was convicted following a jury trial in the District Court of South Australia and he was sentenced to 20 months imprisonment on 19 September 2016.
The second serious offence was committed on 14 July 2014. The applicant was convicted of common assault, damage to a building and trespass. On 25 November 2014 he was sentenced in the Mount Gambier Magistrates Court to 3 months imprisonment which was suspended upon entry into a bond.
The third and most serious offence was an indecent assault committed at Christmas time in 2014. The applicant was convicted following a trial in the Mount Gambier Magistrates Court and sentenced to 2 years imprisonment on 27 May 2015. He was also found to be in breach of the bond given on 25 November 2014.
It is of some concern to the Tribunal that, whilst the applicant accepts generally that he engaged in the criminal conduct for which he was convicted, he maintained a denial of specific elements of the offences when giving evidence before the Tribunal.[2]
[2] The applicant gave his evidence through an interpreter via video link from detention
The offence which triggered the mandatory cancellation was the indecent assault for which the applicant was convicted in the Mount Gambier Magistrates Court on 27 May 2015. No challenge can be made to the fact of this conviction or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[3]
[3] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]
Magistrate Foley made remarks on penalty for the indecent assault which included:
…following a trial I convicted you of one count of indecent assault and one count of assault. The victim of both matters was [Ms W], and those offences occurred in her residence. [Ms W] is 64 years old.
…
As I said a moment ago, the indecent assault occurred inside [Ms W’s] premises after you attended at the front door, bringing with you alcohol. She let you into the house and there was a degree of socialising that occurred, with you encouraging her to consume alcohol. She did consume alcohol…She then became somewhat concerned about your conduct, including the fact that you seemed to be checking that there was no one else in the residence. You then indecently assaulted her, by lifting the shirt that she had on and grabbing her breasts, and attempting to put your hand down her trousers.
One way or another, she encouraged you out of the house, and then told you to leave. As she went back inside you struck her in the vicinity of her neck from behind with your walking stick.
[Ms W] has provided me with an extensive victim impact statement, where she talks about the consequences of this attack on her. She speaks of a loss of confidence, and the injury she received, and the adverse effect this has had, both on her and her ability to continue to do the English as a second language work that she does.
At the time of this offending you were on a suspended sentence of imprisonment of three months, imposed by myself in relation to charges of trespassing in a residence, damaging a building and assault. That sentence was imposed just slightly less than a month before these offences occurred.
…
The offending that I am dealing with is clearly very serious. It occurred in and in the vicinity of Ms [W’s] home, in circumstances where she was simply showing you hospitality. I regard a sentence of imprisonment is the only appropriate outcome for the remaining two charges.
In cross examination the applicant denied indecently assaulting the victim and said that she lied about him grabbing her breasts and attempting to put his hand down her trousers. He also denied hitting her with the walking stick. The applicant said that she asked him to dance and took off her panties and that she asked him for money. He said that he tried to leave but that she held him back. I reject this evidence from the applicant.
The essential facts underlying the convictions for the other two serious offences are not immune from challenge and the convictions are only conclusive of the fact of the convictions themselves, albeit there is a heavy onus on a person seeking to challenge the facts upon which the convictions are necessarily based.[4]
[4] Ibid.
With respect to the first offence of assault, the applicant denied punching the victim in the face and said that he didn’t even touch her. He denied the assault and said that there was no fighting. Once again, this is contrary to the remarks of the sentencing Judge who said:
The offender and the complainant became acquainted and went back to the offender’s home to have a drink and something to eat. The offender suddenly became angry and the complainant went to leave. She got to the front door but his hand pushed against the door and closed it. He pushed her into the lounge and held her by the biceps. He punched her in the face several times. That is the charge of assault causing harm.
With respect to the second offence, the applicant admitted being drunk and attending at a house where he thought he would find his friend. Upon knocking on the door and being told that it was not his friend’s house the applicant said that he simply left. The victim said that she told him to leave and that he then kicked her front window causing the window to smash and then continually punched her front door causing damage to the door frame and locking mechanism. The applicant said in evidence that he was drunk and that he did not remember what happened. He did not accept that he assaulted her or made her afraid. He said that he did not accept the charge for which he was convicted.
Legislative Framework
Under section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in section 501(6) of the Act. Relevantly, section 501(6) provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[5]
[5] Migration Act 1958 (Cth), s 501(7)(c)
Where a visa has been cancelled under section 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[6] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[6] s 501CA(4)
Where the original decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
Is there another reason why the original decision should be revoked?
When considering whether to revoke the decision of the Minister’s delegate, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[7]
[7] Direction 79, [6.1]
The guiding principles that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·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 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.
·Australia has a low tolerance of any criminal or other serious conduct by those holding a limited stay visa reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
With respect to these principles, I note that the applicant has committed serious crimes of a violent and sexual nature and that he has only participated in the Australian community for a relatively short period of time, namely from his arrival in January 2010 until he was imprisoned on 29 December 2014. He has no children or relatives in Australia.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia
oExpectations of the Australian community
·Other considerations:
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims
oExtent of impediments if removed
Only two of the three primary considerations are relevant in this case. It is evident on both the documentary evidence before me and the applicant’s oral evidence that there are no children in Australia that would be affected by the Tribunal’s decision.
With respect to the other considerations, no evidence was given relevant to the impact on Australian business interests and the impact on victims. The other considerations that are relevant are the international non-refoulement obligations; the strength, nature and duration of ties with Australia and the extent of impediments if removed.
Generally, primary considerations will be given greater weight than other considerations: see Direction 79 at 8(4) and Minister for Home AffairsvHSKJ [2018] FCAFC 217 at [32].
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
Relevant factors under this consideration include:
·the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
·the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
·the sentence imposed by the courts for a crime or crimes (with the exception of the preceding dot point); and
·the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The crimes committed by the applicant are very serious. Of particular concern is the fact that all three crimes were committed against women. Crimes against women are considered to be especially heinous in our community which values gender equality very highly. It diminishes the position of women in our society and reinforces the notion that they have to be more vigilant when stepping out into public.
The length of the applicant’s sentences, in and of themselves, indicate the seriousness of his crimes. In this case, the applicant has received two lengthy sentences of 20 months on the one hand and 2 years on the other. Neither of these sentences was suspended.
There is a clear pattern and frequency to the applicant’s serious offending. First, all of the applicant’s offences involved alcohol. Second, they involved violence or the threat of violence. Third, they all involved women. Fourth, there is a trend of increasing seriousness culminating in the most recent offence of indecent assault. Fifth, the offences are frequent, having been committed over a period of 15 months from October 2013 to December 2014
I find that the nature and seriousness of the applicant’s conduct weighs heavily in favour of not revoking the visa cancellation.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424. Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J states that, when the Tribunal makes an assessment of risk, there is no statutory constraint on how this must be done ‘save that whatever he or she takes into account must be logical and rational’.[8]
[8] At [68]
The applicant has provided no psychiatric or psychological assessments to support his claim of a minimal risk of recidivism. I find that there is a very real risk that the applicant will offend again because of the following.
First, the pattern of offending in this matter is clear. That is to say, the similarity in the past offending leads to an inference that the applicant may commit similar types of offences in the future. This is heightened by the relatively short period of time between the applicant’s three most serious offences.
Second, there is no real evidence of the applicant having meaningfully addressed underlying issues that may have caused him to offend. Of particular relevance here is the applicant’s alcohol addiction. Notwithstanding the applicant’s evidence that he did participate in a brief course in prison related to alcohol abuse, the lack of detail around the course and the lack of evidence as to the outcome of the course means I cannot be persuaded that the applicant would not fall back into old habits if he was released back into the community. Further, the applicant gave evidence that he had not undertaken any violence prevention courses or sexual offending programs whilst incarcerated and I am not satisfied that these issues have been adequately addressed.
Third, the applicant has demonstrated a disregard for Australian laws. Despite the clear warning associated with a suspended sentence, the applicant committed his most serious offence within one month of being given that suspended sentence and thereby breached his bail conditions.
Fourth, it is apparent from the applicant’s oral evidence that he continues to deny fundamental aspects of his criminal offending. Although he was willing to offer a broad brush apology for his conduct, when each of the elements of his offending were put to him, he vehemently denied them. The failure of the applicant to admit this conduct or to face up to what he did suggests there are limited prospects of successful rehabilitation.
Moreover, remorse and insight into offending is relevant when assessing a person’s risk of reoffending because it can lead to that person undertaking steps in the future to change their behaviour. It was very apparent from the applicant’s evidence that he lacked insight into the seriousness of his offending and the impact that his offending has had on his victims.
The risk to the Australian community of further offending is a factor that weighs heavily against the applicant.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection, Mortimer J held that the expectations of the Australian community was inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused by the Government in clause 13.3(1), rather than any objective expectations put forward by an applicant.[9]
[9] [2017] FCA 1466
For the reasons given with respect to the protection of the Australian community, the applicant has failed to live up to the expectations referred to in clause 13.3(1) of Direction 79.
This primary consideration goes against the revocation of the applicant’s visa cancellation.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
It is not in dispute that non-refoulement obligations are owed to the applicant given that the Australian government granted the applicant a protection visa in April 2010.
The legal consequence of a refusal to revoke the cancellation decision is the removal of the applicant to Afghanistan in breach of Australia’s non-refoulement obligations. The authority for this proposition is the decision of North ACJ in DRH16 v Minister for Immigration and Border Protection.[10]
[10] [2017] FCA 448. See also AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [76]
There are other potential practical consequences of a refusal such as the Minister exercising powers vested by sections 48B, 195A or 417 of the Act, but the Minister is not presently considering exercising any of these powers. To consider the exercise of those powers as a legal consequence would amount to speculation.[11]
[11] NBMZ v Minister for Immigration & Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Based upon the material before the Tribunal, if the decision of the delegate of the Minister is not overturned then the applicant will be removed to his home country. This will result in Australia being in breach of its non-refoulement obligations. It will also put the applicant in grave danger based upon the findings made by the Minister for Immigration and Citizenship in April 2010 when his protection visa was granted.
I give this consideration great weight and it weighs heavily in favour of the applicant.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child; and
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia at the age of 52 and has resided here for 9 years. He has been in prison and detention for the last 4 years. He has very limited ties to Australia. He has no family in Australia and only a few friends.
Direction 79 requires that I give less weight to the applicant’s strength, nature and duration of ties where the applicant began offending soon after arriving in Australia. The applicant joined the Australian community in April 2010 and committed his first serious offence in October 2013. I consider this to be a relatively soon after the applicant arrived in Australia. Furthermore, the time that the applicant did spend in the Australian community cannot be characterised as being positive on account of his offending.
This consideration is neutral and weighs neither for nor against the applicant.
Extent of impediments if removed to home country
The applicant suffers from diabetes, back pain and has deteriorating vision. He is 60 years old. His age and health present some impediments to his removal to Afghanistan. On the other hand, the applicant grew up in and has spent most of his life in Afghanistan up until 2001. He speaks the local languages. This consideration weighs in favour of the applicant, but I give it little weight.
Decision of the Tribunal
The considerations in favour of revocation of the cancellation decision are the non-refoulement obligations and the extent of impediments if the applicant were removed to his home country. Weighing against these considerations are the primary considerations of the protection of the Australian community and the expectations of the Australian community. I consider that these primary considerations outweigh the other considerations.
I have reached this view whilst fully accepting that the applicant has a genuine fear of harm and that there is a real chance of him being persecuted upon his return to Afghanistan. Despite this weighty factor, there is an unacceptable risk of harm to the Australian community and in particular to women within the Australian community if the applicant is returned to the community. Women should not be expected to live in fear of crimes of the serious nature committed by the applicant. The applicant has brought this upon himself by his regular and shameful misconduct towards women in the short time that he has been in Australia. The Australian community expect that non-citizens who engage in such behaviour against women should have their visa cancelled.
The decision of the tribunal is to affirm the reviewable decision.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

...............................[sgd].................................
Associate
Dated: 12 April 2019

Dates of hearing: 11-12 April 2019

Solicitor for the Applicant Self-represented

Solicitor for the Respondent Australian Government Solicitor

[2019] AATA 916

12 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Dates of hearing:	11-12 April 2019
Solicitor for the Applicant	Self-represented
Solicitor for the Respondent	Australian Government Solicitor