XKTK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 2963
•15 September 2023
XKTK and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2963 (15 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5000
Re:XKTK
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 15 September 2023
Date of written reasons: 15 September 2023
Place:Sydney
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa.
......................[SGD]..................................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – mandatory cancellation of Class XE Subclass 790 Safe Haven Enterprise Visa under section 501(3A) – whether there is another reason to revoke the cancellation – Applicant engages in sexual offence against child – where protection finding made with no prospect of returning to country of origin – protection of Australian community – Strength, nature and duration of ties to Australia – Expectations of the Australian community – legal consequences of the decision – prospect of indefinite detention – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
RRFM vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 25SECONDARY MATERIALS
Wethern et al, ’The Impact of Immigration Detention on Mental Health: a Systematic Review’ (2018) BMC Psychiatry
REASONS FOR DECISION
15 September 2023
Mr Rob Reitano, Member
This case is about whether there is ‘another reason’ to revoke the decision cancelling the Applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa (visa). The visa was cancelled under s.501(3A) of the Migration Act 1958 (Act) because the Minister was satisfied that the Applicant failed the character test in the Act following his conviction for a sexually based offence involving a child.
The Applicant is a person in respect of whom a ‘protection finding’ as defined in s. 197C of the Act has been made. Consequently, unless and until the Applicant is either, granted another visa, or can be moved to a country other than his home country of Sri Lanka, he is likely to remain in Australian immigration detention. And so, the practical effect of not revoking the decision cancelling the visa is that the Applicant will remain indefinitely in immigration detention in Australia. That consequence, together with his chronic mental illness, leads me to be satisfied that there is ‘another reason’ to revoke the decision cancelling the visa. I set out my reasons for that decision in what follows.
ISSUES
The only issue is whether I am satisfied that there is ‘another reason’ as to why the decision cancelling the visa should be revoked. The issue arises because s.501CA(4)(b)(ii) of the Act says that revocation of the decision cancelling the visa can happen if the Minister, and in this review the Tribunal standing in the Ministers’ shoes, is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The other basis for revocation is in s.501CA(4)(b)(i) of the Act and requires a satisfaction that the Applicant passes the character test in s.501. The Applicant cannot pass the character test because of his conviction for a sexually based offence involving a child.
The procedural requirements that give the Tribunal jurisdiction and power are not in issue: the visa was required to be cancelled because of the conviction, the Applicant made representations seeking revocation in the time and manner prescribed by the Minister’s invitation, a delegate of the Minister conducted a review of the decision cancelling the visa and affirmed that decision, and the application for this review of the delegates decision was made in the time prescribed. I am satisfied that the preconditions for this review are met.
ANOTHER REASON TO REVOKE THE CANCELLATION?
The issue concerning satisfaction about whether ‘there is another reason why the original decision should be revoked’ requires an evaluative judgment about there being a reasoned basis or justification for revoking the decision cancelling the visa.
The satisfaction about the existence of ‘another reason’ is guided by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction). Sub-section.499(2A) of the Act requires that the Tribunal comply with written Ministerial directions in performing its functions and in the exercise of its powers. The review of a decision refusing to revoke the cancellation of a visa is one such function or power. The Direction must be applied to determine whether there is satisfaction about there being ‘another reason’ to revoke the decision cancelling the visa.
The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making, or not making, that decision.
The ‘principles’ in paragraph 5.2 of the Direction are:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Naturally enough, all the principles are relevant and must be applied, but it is necessary to say something about paragraph 5.2(6). That paragraph recognises that ‘the inherent nature of certain conduct is so serious that even strong countervailing considerations may be insufficient in some circumstances . . . to justify not revoking the mandatory cancellation’. That statement leaves open that even though the inherent nature of certain conduct is ‘so serious’ there may be cases where ‘strong countervailing considerations’ are sufficient to justify revoking the cancellation of a visa. That is left to the discretion of the decision maker having regard to the ‘countervailing considerations’ and circumstances. I will say a little more about this later as it is important in this matter.
The Direction refers to two categories of ‘considerations’ which are identified as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.[1]
[1] Paragraph 8 of the Direction.
The ‘other considerations’ include:
·legal consequences of the decision;
·extent of impediments if removed from Australia;
·impact on victims; and
·impact on Australian business interests.[2]
The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’, again a matter which is left to the Tribunal to determine, but naturally enough they need to be relevant to the ultimate question of whether there is ‘another reason’ to revoke the decision cancelling the visa.
[2] Paragraph 9 of the Direction.
The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[3] The word ‘generally’ contemplates cases where it may not be appropriate to do that Therefore, there may well be cases which, in their circumstances, require departure from the ‘general’ because of the particular circumstances of an individual case.[4] This is relevant in this review because of some of the particular circumstances that confront the Applicant to which I will refer in due course.
[3] Paragraph 7(1) of the Direction.
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) at [76] (per Charlesworth J); see also Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (per Colvin J)
Further, within the considerations, there are matters that must be taken into account. The obligation to address the considerations and to take matters into account carries with it recognition that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[5] To that end, sight should not be lost of the fact that the subject matter with which the decision is ultimately dealing potentially involves the exclusion of someone from Australia or, as in this case, being placed indefinitely in detention. Those things are no matters of small consequence. It hardly needs to be said that the very real and far-reaching human ramifications of that decision to an individual applicant, her or his family and friends and to the wider community are ever present in the deliberative process and point firmly to the need to consider all matters conscientiously, earnestly, and carefully.
[5] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
It is necessary to consider each of the relevant primary and other considerations. Immediately, I should observe that neither party suggested that considerations related to conduct involving family violence, the best interests of minor children, the impact on victims, and impact on Australian business interests were relevant. The consideration of the extent of impediments if removed is, in the view I take, not relevant because there is no prospect at all that the Applicant will be removed from Australia as a consequence of this decision. I am satisfied that each of these considerations are irrelevant in this case.
I should also indicate that where I refer to being required to consider matters or have regard to them in what follows, those considerations arise because of the Direction.
Protection of the Australian community
I am required to consider the nature and seriousness of the Applicant’s conduct which includes both criminal offending and other conduct and the risk to the Australian community, should he commit further offences or engage in other serious (mis)conduct. I am required to have regard to the fact that the Australian Government and community view violent and/or sexual offences and crimes of a violent nature against children, regardless of the sentence imposed, as being very serious. Although, generally I must have regard to the sentence imposed by the courts, that is not relevant insofar as a sexual offence against a child is concerned; such offences are regarded by the Australian Government and the Australian community as very serious regardless of the sentence imposed. I must also consider the frequency of offending and whether there is a trend of increasing seriousness.
The event that gives rise to the decision cancelling the visa was the Applicant’s conviction on 25 January 2023 in the Parramatta Local Court of New South Wales for the offence of intentionally sexually touching a child aged more than 10 years of age but less than 16 years of age, for which he was sentenced to 9 months’ imprisonment.
The circumstances involved the Applicant meeting a 15-year-old girl, whom he had not ever met before, on the platform of a railway station and then proceeding to follow her onto a train. When seated next to the child in the downstairs compartment of the train, where there were other members of the public - at least one of whom was less than about five metres away and watching on - the Applicant began kissing the girl and embracing or hugging her many times over a period of about two minutes. The child was not consenting and was resisting what was happening. At one point, the child placed her hand over her lips to stop the Applicant’s lips touching hers, but the Applicant removed her hand and continued kissing her. The Applicant eventually stopped of his own accord. The other people including the person watching on did not intervene to stop the Applicant.
The Applicant was then 44 years of age. He was intoxicated, although it is not entirely clear what his level of his intoxication was. He said afterwards, and when he was sentenced, that he had no recollection of the incident but having seen the surveillance footage admitted the offending was his. He said at the time he was shown the surveillance film that it was ‘like a father’s kiss to a child’. He explained in his evidence he did not mean that ‘the way it sounded’, but rather was referring to the age disparity being so great that he was old enough to be the young girl’s father and should not have been kissing her the way he was. His explanation in that regard is probably fairly to be attributed to his first language being Tamil and his incomplete grasp of English.
The nature and seriousness of the criminal offending is objectively very serious, and it is not surprising that the Australian Government and community regard it as so. The Magistrate who sentenced the Applicant observed that the objective seriousness of the offending was around the ‘the mid-range, maybe fractionally lower’ for the particular offence. That is, the Magistrate did not regard the offence for the purpose of criminal sentencing as the most serious offence of its kind. That seems correct as the Magistrate observed that ‘it was not a case of skin-on-skin contact on the genital area for example and was not planned’.
The aggravating factors associated with the offending were, according to the Magistrate, that it involved a stranger on public transport which made the child vulnerable. This was to be considered in light of the fact that the child was travelling alone. The Magistrate also identified subjective factors that mitigated the nature and seriousness of the offending which included the fact that the Applicant had come ‘to Australia about 10 years ago in unfortunate circumstances’, that he lived a ‘solitary life in a boarding house-type existence’, that he had ‘limited support networks’, and that the death of his mother a year earlier ‘seemed to cause the Applicant to descend into a problem with alcohol’. These were, according to the Magistrate, all factors existing ‘against a backdrop of mental health issues and post-traumatic stress disorder arising from torture in Sri Lanka’. It was also relevant that the Applicant was a first-time offender as his one previous run in with the criminal law, to which I will turn in a moment, did not proceed to conviction.
It is convenient here to set out a little more the background to the matters that the Magistrate referred to in his sentencing remarks. The ‘unfortunate circumstances’ referred to by the Magistrate was a reference to the Applicant being tortured and later fleeing Sri Lanka after the end of the civil war in 2009 because he was assumed to be a supporter of the Liberation Tigers of the Tamil Elam due to his Tamil ethnicity. His torture involved physical and psychological torture. One of his legs was broken and a metal plate inserted with a large number of screws. He has mobility issues as a result. He also lost a tooth and suffered some other head injuries so that he was in a coma for some days. He arrived in Australia after fleeing Sri Lanka as a refugee. The circumstances I have described are apparently, broadly speaking, the reason why the protection finding to which I referred earlier was made.
The mental health issues to which the Magistrate referred were confirmed in a letter that was prepared by a general practitioner who had been seeing the Applicant for about five years. The letter referred to the Applicant’s reports of physical torture (in Sri Lanka) as a result of which he suffered ‘multiple injuries’. The letter said that the Applicant was ‘suffering from post-traumatic stress disorder which was complicated by psychotic depression’. The letter recorded that the Applicant ‘has a history of visual and auditory hallucination and persecutory delusions’. The letter referred to counselling to which the Applicant had been referred and medication that had been prescribed, but with which the Applicant had not been compliant apparently due to financial reasons amongst others. The letter went on to state that ‘his complex chronic mental illness, impaired cognitive function, and associated alcoholism are complicated by his lack of legal capacity.’ The letter concluded that ‘when his condition was stabili[s]ed with counselling and medication, he exhibited good behaviour’.
The Applicant suffered from, and continues to suffer from, a complex chronic mental illness. The Magistrate found ‘special circumstances’, which is a prerequisite to reducing the standard non-parole period in a sentence so as to provide the Applicant with ‘… significant time on parole to address his mental health, alcohol, and other issues’. Unfortunately, the Applicant was deprived of the opportunity to get that help whilst on parole as he was taken to immigration detention upon his release. Nevertheless, the sentence of nine months’ imprisonment with a non-parole period of 4 months reflected the Magistrates view that the objective seriousness of the offending fell somewhere at or slightly below the mid-range of seriousness for the kind of offence involved.
The only other conduct that the Applicant has been found to have engaged in of a criminal kind happened in 2017 when he was involved in an altercation with another man. The other man was intoxicated and was speaking to the Applicant about his sister and made claims that the Applicant was sleeping with her. The Applicant was offended, became angry and took hold of a broom. The man stood up but because of his prosthetic leg lost his balance, fell over and hit his head injuring himself. The Applicant was charged with assault and being armed with intent to assault. The assault charge was dismissed. For the other offence the Applicant received the benefit of an order by which the offence was found proven but the court did not proceed to conviction. The court appears to have taken the view that the offending was not serious at all. That offending is at the low level of seriousness.
I do not consider that the two offences, one for which no conviction was recorded, and no penalty imposed, can reasonably be regarded as demonstrating some trend of increased seriousness in the offending because the offences are very different and there are only two of them. To the extent that the two offences demonstrate a trend, there is an obvious increase in seriousness from one to the other. The cumulative effect of the offending is increased slightly by the 2017 conduct. The frequency of the offending is only marginally relevant given there are only two offences separated by five years.
The Applicant’s overall offending is, because of the sexual offence involving violence against a child, very serious. This is so because it involved both offending of a sexual nature, and it involved a child who was in a vulnerable state travelling alone, notwithstanding the other members of the public well within view of the offending conduct. The earlier offending, albeit not as serious as the later offence, adds to the very serious nature of the Applicant’s criminal offending.
I am next required to consider the nature of the harm to individuals should the Applicant commit the same or similar offences in the future. There was no evidence before me about the particular harm caused to the child. It is reasonable to believe that she would have been quite traumatised by being kissed and hugged against her will by a 44-year-old man who was both drunk and unknown to her. That is, having regard to her very young age significant harm. Similar offending could result in the same level of harm, but it is, given the nature of the harm unlikely that it would involve physical injury especially given the very low level of violence associated with the offending. The harm to individuals in the Australian community of offending of the kind here would be significant if repeated.
I do not consider that the Applicant’s offending conduct is such that any risk of repetition is unacceptable even though it was very serious criminal offending involving sexual conduct towards a young child. This is mainly because the conduct was very much at the lower level of such conduct, it did not involve sexual touching of genitalia or ‘skin to skin contact’ as the Magistrate put it, nor did it involve sexual intercourse or anything of that nature. Furthermore, the level of violence was not high. For those reasons, despite being close to the margin, the harm resulting from the offending is not, in my view, such that any risk of the offence being repeated is unacceptable.
Finally, I must consider the likelihood of the Applicant engaging in criminal or other serious misconduct in the future, considering information and evidence on the risk of re-offending and any rehabilitation to date.
When the Applicant was sentenced, the Magistrate referred to an assessment of the risk of re-offending that had been undertaken by a community corrections officer ‘on the papers’ rather than in an interview. It appears that the Magistrate may have been mistaken about that as there was evidence before me that the Applicant was in fact interviewed before the assessment was made. In any event, that assessment put the risk of re-offending at medium. The Magistrate indicated some agreement with that assessment despite what he thought about its inadequate foundation, having regard to what he described as ‘some fragility to his mental health’ and ‘an alcohol issue that is going to need addressing’.
The Minister referred to some other ‘serious conduct’ which was said to involve the Applicant, but not because it was relevant to the questions about the Applicant’s conduct whilst in Australia. Rather, that material was relied upon because that other conduct was said to go to the issue of the risk of re-offending. The other conduct concerned two particular incidents recorded in the New South Wales Police Force Computerised Operational Policing System (COPS) and some more general entries in that system that pertained to the Applicant’s alcohol problem. I should deal with them in turn.
The first entry involved an allegation that on 9 January 2018 the Applicant had taken a child by the hand, walked along the street with the child and attempted to pick the child up outside a shop in Blacktown. The only evidence about the incident was that in the COPS record and that of the Applicant. The COPS record referred to the mother of the child as being the person who reported what happened. She did not give evidence and was not made available for cross-examination. The policeman who made the entry in the record was not made available for cross-examination. The Applicant did give direct evidence and denied the version of events as was alleged in the police record and denied deliberately touching the child by the hand or otherwise. Apart from the untested nature of the information in the police record, the only direct evidence I have about the incident is the Applicant’s. I accept it because I generally formed the view that the Applicant was a credible witness and did his best to tell the truth. I am unable to find that the Applicant engaged in the conduct alleged against him and so, it is not relevant to any issue concerned with the risk of repeat offending.
The second incident also relied upon a COPS record. The record recounted, in broad terms, the allegation that the Applicant, or rather someone who was thought to have fitted the Applicant’s description, followed a woman on foot in the early afternoon of 19 April 2020 and ‘leaned in for a hug where he held [her] against his body and kissed her on the right side of the neck and the right side of the cheek’ and ‘then attempted to kiss her on her lips’ but was pushed away. Again, there was no evidence from the woman or the policeman who took the report, and neither was made available for cross-examination. The Applicant was unable to remember anything about the incident or even being in the suburb where it occurred at the time that was alleged. The COPS entry records that when the Applicant was located by police, he denied that he had engaged in the conduct concerned. Although the similarity between the conduct in the COPS record and the offence involving the child is obvious, I am not prepared to make a finding based on second-hand information that cannot be tested by calling the record maker or the person making the report, where the Applicant denied at the time it was him and especially having regard to the serious consequences that could attach to any such finding. I am not satisfied that the event in the COPS record refers to conduct engaged in by the Applicant such that I should rely on it for any purpose.
The third category of COPS records involve several records or entries that refer to the Applicant being at various places including public places, like parks, where he had been drinking. Those records are in a different category to the others as they confirm the Applicant’s evidence that he drank alcohol. The issue that arose was whether the Applicant drank alcohol before the death of his mother in January 2022 and whether the Applicant drank alcohol to excess before then. That evidence confirms both things, but I do not consider that that means that the Applicant’s credit as to his history of alcohol consumption was adversely affected by that evidence. The Applicant certainly said at times he started drinking after his mother’s death, but I did not gain the impression that he was saying anything more than his drinking problem became worse after his mother’s death. The fact that he drank before his mother’s death, and may have drunk to excess before then, does not mean things did not become worse for him after his mother’s death.
Further, that evidence does suggest that the Applicant may well have been unaware of the level of any problem and, as the Minister submitted, the Applicant had a problem with alcohol that had persisted for some time. The first of those things obviously changed after the Applicant’s offending: he became well aware of his problem as the evidence demonstrates. The second of those things suggests that the Applicant’s drinking may in fact be a future issue insofar as the risk of re-offending is concerned.
The Applicant’s evidence about his risk of re-offending relied upon a report of a Consultant Psychologist, Mr Tim Watson-Munro dated 31 August 2023. That report is the latest word on the Applicant’s risk of re-offending. In his report Mr Watson-Munro expressed the opinion that at the time of his offending the Applicant ‘was suffering a confluence of psychological issues, which were aggravated by his drinking. Arising from this, it is clear that if he does not consume alcohol and maintains a regime of treatment his objectivity is restored, and his behaviour is improved.’ Mr Watson-Munro expressed in his cross examination the opinion that the Applicant’s offending was ‘largely attributable to alcohol consumption and poor treatment’ or, put another way, ‘alcohol leads him to be disinhibited’. Mr Watson-Munro described the offending as a ‘crime of opportunity’ where alcohol affected the Applicant’s judgment. This was because of the Applicant’s age and the fact that he had an absence of prior sexual offending. The offending did not in Mr Watson-Munro’s opinion disclose some ‘underlying aberrant sexual tendencies’
The report went on to identify the factors that Mr Watson-Munro considered would reduce the risk of re-offending in the context of the Applicant’s acceptance of responsibility and understanding of the impact of his behaviour on the victim. Those factors included abstinence from alcohol, maintaining his medication, supervision and guidance from his sister and undertaking psychotherapy. The report did not in terms express an opinion about the risk of repeat offending, but its overall conclusion suggests that it would, should the conditions identified be met, be moderate.
A matter of particular importance to the Applicant’s risk of re-offending is the support that his sister has offered him should he be released into the Australian community; in particular so far as him remaining alcohol free and maintaining his regime of medication. Her evidence about the support she will offer is important in the context where she knows the trouble her brother got into because of his drinking. The evidence suggests that whilst the Applicant has been in detention, he has spoken to his sister on the telephone daily, sometimes several times a day, and she has visited him once or twice a week. Her commitment to her brother whilst in detention suggests she will be an important, supportive factor that the Applicant is likely to have in the community that will contribute to minimising his risk of re-offending.
There are matters that suggest the risk of re-offending is not high. First, the Applicant has only one, albeit very serious, conviction to his name. Second, he has abstained from alcohol for seven months, though this was possible by the controlled environment of a corrections centre and of detention. Yet, that does not detract from the fact that he has remained abstinent from alcohol for some time, which Mr Watson-Munro described as being in ‘partial remission’. Third, the length of time he has spent in a correctional facility and in detention after that, is likely to have had some deterrent effect on him drinking and re-offending in general. It should not be presumed to have had no effect. There is also the deterrent effect of him confronting revocation of his visa such that he will not be permitted to remain in Australia or, as I have stressed because of his circumstances, indefinite detention in Australia. Fourth, the Applicant has expressed, in his evidence and to others, his remorse and he does have some understanding of what was wrong about what he did and its impact on the child. I accept his remorse is genuine. Fifth, he has expressed a desire to do something about his mental illness and his ‘alcohol problem’ under the guidance of his medical practitioner. I accept that his intention to deal with his behavioural issues is sincere in particular having regard to what he has done to date which I refer to below. Sixth, he has indicated he will live with his sister and obtain whatever support she has to offer him.
The Applicant has completed courses, and participated in programs while in detention, which evidence his commitment to rehabilitation if released. The Applicant has backed up his words with actions. While in detention he has engaged in weekly SMART Recovery workshops which is a program directed to mental health and alcohol issues. He explained in his evidence some of the aspects of the program that had been of assistance to him. In his statement, he expressed a desire to continue with such programs if he were released into the community. In his oral evidence he was unable to say what in fact he would do to redress his ‘alcohol problem’ if he were released into the community. I do not consider that significantly diminishes his written word about what he would do to deal with his alcohol issues if released into the community. The fact that he has done things whilst in detention to demonstrate some commitment to changing his ways with alcohol suggests that what he said in his witness statement should be believed. He will obviously need the assistance of his medical practitioners and others to steer him in the right direction. To this end it is relevant that the Applicant has also recently re-engaged with the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors because he is permitted to have a phone in detention which allows him to engage with that service by phone. That service, as its name suggests, and as the Applicant recorded, is a service that helps refugees with counselling. He has engaged with that service once a week and intends to continue his engagement with it if released into the community.
These matters show practical attempts by the Applicant to deal with the core of his issues, his mental health and alcoholism, to the extent he can whilst in detention. I consider they are likely to have assisted him. Importantly, they also demonstrate some understanding of his need to deal with his alcohol and mental health problems, and a genuine desire on the Applicant’s part to deal with the issues that have brought him to this review. That he has been through the whole experience of the criminal justice system and the process of facing detention, together with the practical steps he has taken to address his issues, gives cause for some level of confidence that he will be more astute in complying with his medication regime and attending upon the services that are available to help him.
It is true that If the Applicant is released into the community, he will live with his sister again, who can only offer him limited support, and that he has no immediate plans for, or prospects of, obtaining employment. Those things are naturally enough the same as they were before the Applicant’s criminal offending. But they will be in the context of the Applicant’s time in a correctional facility and then in detention where he has been alcohol free and medication compliant for some time, and where he has made some effort towards rehabilitation insofar as that is possible within those environments.
I consider the likelihood of the Applicant offending in the future to be well below the medium range of likelihoods. I do not accept the suggestion that the Applicant is of no risk of re-offending if only because of his past behaviour.
The protection of the Australian community weighs firmly in favour of non-revocation of the cancellation of the decision cancelling the visa.
Strength, nature and duration of ties to Australia
I am required to consider the impact of my decision upon the Applicant’s immediate family members in Australia where they are Australian citizens, Australian permanent residents or people with a right to lawfully remain in Australia indefinitely. I must give more weight to this consideration where the ties involve children in those categories. Further, I must consider the strength, duration and nature of family ties or social links generally to people in those categories.
I am required to consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community and to have regard to the length of time the Applicant has resided in the Australian community ‘noting that more weight should be given to the time [the Applicant] has resided in Australia where the [the Applicant] has contributed positively to the Australian community during that time’
The only familial or social tie that the Applicant has to the Australian community is to his sister who is an Australian permanent resident. The bond between the two is obviously significant having regard to the evidence of both of them. The Applicant’s sister is obviously distressed about the prospect of her brother being permanently taken from her day-to-day life. She indicated that she needed her brothers help in her life.
The Applicant has been in Australia for about 10 years. As the Magistrate put it, the Applicant lived ‘a solitary life in a boarding house type existence’. The Applicant’s mental illness and physical disability arising from his torture in Sri Lanka has significantly affected his capacity to participate in the community by way of gainful employment. It is not possible to be satisfied about much more concerning the Applicant’s ties to the Australian community.
I give this consideration weight in favour of revocation of the decision cancelling of the visa.
Expectations of the Australian community
The Direction provides that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’ and ‘[w]here a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’. The Direction provides that non-revocation ‘may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or to continue to hold a visa’. The Direction provides that ‘the Australian community expects that the Australian Government can and should . . . cancel their visas, if they raise serious character concerns through conduct, in Australia’ that involves ‘the commission of serious crimes against . . . children . . . where ‘‘serious crimes”’ includes crimes of a violent or sexual nature. . .’
This part of the Direction does not require me to formulate or determine the expectations of the Australian community, but rather involves my consideration as to what weight should be given to the normative expectations that serious criminal offending will lead to non-revocation of a decision cancelling a visa, and that a visa should be cancelled where there is the commission of a serious crime of a sexual nature involving children. That is, I must decide whether more or less weight is to be given to the community expectation of non-revocation of cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[6] This involves an evaluation about how strongly this consideration should weigh in the particular circumstances.
[6] FYBR at [77]
It is necessary to reiterate what I earlier said about the principle in paragraph 5.2(6) of the Direction. That paragraph provides that conduct, or harm that would be caused if the conduct were repeated, ‘may be so serious that even strong countervailing considerations may be insufficient to justify’ not revoking the cancellation of a visa. That leaves open the potential that there ‘may be’, cases that involve serious conduct or harm where the countervailing considerations are sufficient to justify revocation. That proposition has support in the judgment of Charlesworth J in FYBR where one of the predecessors to the Direction which was in slightly different terms was considered.[7] The difference in the two forms of the Directions is not material. Charlesworth J went on to identify that: ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision maker to determine in the ultimate exercise of his or her discretion’.[8]
[7] FYBR at [75]
[8] FYBR at [76]
I should also observe, as Charlesworth J did, in relation to the broadly equivalent principles in the Direction considered in FYBR,[9] that the principles in paragraphs 5.2(4) and 5.2(5) need to be considered. So far as 5.2(4) is concerned it is relevant in that a low tolerance of criminal or other serious conduct is to be applied where people have been participating or contributing to the Australian community for a short time. So far as paragraphs 5.2(5) is concerned amongst other things it identifies that the level of tolerance will rise with the length of time a person has spent in the Australian community.
[9] FYBR at [77]
The starting point is the normative position that the expectation held by the Australian community is that the very serious criminal offence committed by the Applicant means that the community expects that the decision cancelling his visa should not be revoked. Further, this matter involves the kind of offending conduct where the Australian community expects that the Australian Government should cancel the visa because the conduct involved in the offences was sexual and violent conduct against a child.
Next, I must determine what weight to give to that community expectation. There are several matters that need to be considered. First, because as I have said despite involving very serious offending, it was much towards the lower end of the spectrum of very serious offending for the offence concerned, given the circumstances of what occurred. The harm caused by the offending could not reasonably be considered at the high end of serious harm that might be caused by more egregious sexual offences against children.
There are some circumstances here that suggest I should give less weight to this consideration than might otherwise be the case which are: the Applicant having been subject to torture in Sri Lanka; his chronic mental illness, which is wider than Post Traumatic Stress disorder; his relatively small network of support in Australia; and his solitary existence. That is also against the backdrop where the Applicant’s record of criminal offending over about 10 years has involved the commission of only one, albeit very serious, criminal offence for which he has been convicted.
These matters lead me to conclude that this consideration should in the circumstances weigh moderately against revocation of the decision cancelling the visa.
Legal consequences of the decision
The Applicant is a person who has been found to be owed protection obligations and for whom a protection finding within the meaning of s.197C(5)(a) of the Act has been made. The consequence of which is the Applicant ‘must remain in immigration detention as required by section 189 unless and until [he is] granted another visa or [he] can be removed to a country other than the country by reference to which the protection finding was made.’ This means if the revocation is not undone the Applicant has no visa such that he will be in detention for the foreseeable future with an uncertain end date if there will ever be one.
That the Minister might, or might not, one day exercise the powers available in s.195A and 198AD of the Act is not in doubt, but I should not speculate that she or he will do so any more than I should speculate about the prospect that the Applicant might, at some stage in the future, request to be returned to Sri Lanka because he does not wish to be indefinitely detained.[10]
[10] See Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31] – [34] (cited with approval in RRFM vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [31] and in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150]
The immediate consequence of a decision refusing to revoke the cancellation of the visa is that the Applicant will be placed in indefinite detention. As the Full Court observed in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [123]:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.[11]
[11] [2021] FCAFC 25, [123] (Kenny and Mortimer JJ).
Both parties dealt with the issue of the Applicant’s mental illness and need for treatment as part of this consideration and nothing much turns on whether it is dealt with here or as part of some other consideration. The Applicant referred specifically to research that suggested that ‘detention exacerbates the mental health burden of asylum seekers and refugees and that such detention should be viewed as a traumatic experience in and of itself,’[12] and that ‘[a]s put by the Australian Psychological Society detention is in itself traumatic and exacerbates the effect of other traumas.’[13] The Minister noted that there was no evidence particular to the Applicant concerning such harm and that there were mental health services available in detention.
[12] Wethern et al, ’The Impact of Immigration Detention on Mental Health: a Systematic Review’ (2018) BMC Psychiatry 18, Published online 2018 Dec 6. doi: 10.1186/s12888-018-1945-y
[13] J Parliament of Australia, Joint Committee Immigration Detention Report
To the extent that there was some evidence about this it is to be found in the report of Mr Watson-Munro who said in his conclusions:
His anxiety has been compounded by his concerns for his sister, coupled to a possibility of either indefinite detention in an Australian immigration detention centre, or in the alternative, being returned to Sri Lanka. He is fearful for his safety in relation to the latter consideration and certainly, given his complex psychological problems, his symptoms will inevitably be exacerbated by an absence of familial support through his sister and his capacity to access mental health services which are available to him in Australia. The prospect of being detained indefinitely would remove any hope regarding the future for [the Applicant] and in this regard, he inevitably will fall into a state of despair.
I am required to give weight to the fact that if I were to refuse to revoke the decision cancelling the visa, I would be perpetuating the Applicant’s detention and his continued deprivation of liberty with no identifiable or known fixed end point. That would be a significant consequence for the Applicant, denying as it does his fundamental human right to freedom. That the Applicant would be exposed to further harm to his mental health if he remained in detention fortifies me in that conclusion, as does the prospect that there are real doubts as to whether the Applicant can obtain the kind of help he needs in his circumstances whilst in detention. The significance of the consequences leads to me to conclude that I should give this consideration significant weight in favour of revoking the mandatory cancellation.
WHY THE CANCELLATION SHOULD BE REVOKED
I have found that the protection of the Australian community weighs firmly in favour of non-revocation of the visa cancellation. The Applicant’s offending is very serious. The consequences of the Applicant re-offending would be significant. I consider the prospect that the Applicant will re-offend to be in the medium to low range of likelihoods. I have found that the expectations of the Australian community weigh moderately against revocation. I give weight to the strength, nature and duration of the Applicant’s ties to the Australian community because of the Applicant’s strong familial tie with his sister who is a permanent resident of Australia and his ten years in Australia. The primary considerations weighed together favour non-revocation of the decision cancelling the visa.
I have found that the legal consequence of my decision if I were to refuse to revoke the cancellation would be that the Applicant would be placed in indefinite detention. I consider that this weighs strongly in favour of revoking the decision cancelling the visa mainly because the ongoing and indefinite deprivation of an individual’s liberty is such a serious matter, but also having regard to the Applicant’s chronic mental illness for which he needs treatment and the effect of indefinite detention upon him.
The primary and other considerations are relatively evenly balanced. I am satisfied that this is a case where the general position that primary considerations should outweigh other considerations should be departed from such that there is another reason to revoke the cancellation of the visa. That other reason lay squarely in the fact that a seriously mentally ill man, who has suffered immensely at the hands of those who tortured him, would be placed in indefinite detention with the prospect of further harm to his mental health, where there are real doubts about whether he will receive the treatment for that illness he needs should the decision cancelling the visa remain in place. That consequence rationally justifies a decision revoking the cancellation of the visa.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XE Subclass 790 Safe Haven Enterprise visa.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member
..........................[SGD]..............................................
Associate
Dated: 15 September 2023
Date(s) of hearing: 7 and 8 September 2023 Solicitors for the Applicant: William Berthelot, Legal Aid NSW
Counsel for the Applicant: Mr Dev Bhutani, Maurice Byers Chambers Solicitors for the Respondent: Kerwan Eskerie, Sparke Helmore
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