XNDR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 2450

XNDR and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2450 (10 August 2023)

Division:GENERAL DIVISION

File Number(s):      2023/0969

Re:XNDR

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM KC

Date:10 August 2023

Place:Sydney

The decision under review is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

.................................[SGD].......................................

Deputy President B W Rayment OAM KC

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of Class WA Subclass 010 Bridging A visa – citizen of Bangladesh – involvement in Bangladesh Nationalist Party (BNP) – theft, obtaining financial advantage by deception, make false accusation with intent to subject other to investigation and intimidation convictions – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth)

CASES

Pearson v Minister for Home Affairs [2022] FCAFC 203

SECONDARY MATERIALS

Administrative Appeals Tribunal Migration and Refugee Division, The Bangladesh Nationalist Party (BNP) (Report, March 2022)

Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights (Report No POL 10/5670/2023, 27 March 2023)
<

‘Bangladesh: Crackdown on Political Opposition’, Human Rights Watch (Web Page, 10 October 2022) < Violence, Repression Ahead of General Elections’, Human Rights Watch (Web Page, 12 January 2023) < of Foreign Affairs and Trade, DFAT Country Information Report Bangladesh (30 November 2022)

‘Freedom in the World 2023 Bangladesh’, Freedom House (Web Page) < for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)

REASONS FOR DECISION

Deputy President B W Rayment OAM KC

10 August 2023

1. This review concerns a person whose visa was the subject of mandatory cancellation because of a criminal conviction, and who sought revocation of the cancellation and made representations under s 501CA of the Migration Act 1958 (the Act). The applicant sought review of a delegate’s decision refusing to revoke the cancellation. The case is Pearson-affected so for a period of time recently the applicant was at liberty.

2. The applicant was self-represented before the Tribunal. He arrived in Australia from Bangladesh at the age of 19 on 9 December 2015, with his father and mother who are in their mid-fifties, and his sister who is now 22. The applicant is 26 years old. He arrived by plane and then had a visitor visa. His most recently held visa was a Class WA Subclass 010 Bridging A visa.

3. The sister is now married, and has moved away from their parents’ home.

4. He has one living uncle in the USA and another uncle passed away in the USA. He has two aunts on his father’s side, one living in the UK and the other in Europe. Only his immediate family lives in Australia.

5. In Bangladesh his father once had a leading role in the Bangladesh Nationalist Party (BNP) in his local area. The BNP was once in Government (between 1991 and 1996, and again between 2001 and 2006) but is now opposed to the present government, controlled by the Awami League. The role which his father once occupied is now held by a representative of the Awami League.

6. According to country information, mass arrests of BNP leaders and activists took place in 2014-2015, and violence occurred. BNP rallies and meetings were violently attacked by activists who supported the Awami League. According to Odhikar, a human rights organisation in Bangladesh, BNP leaders and activists became victims of enforced disappearance, extrajudicial killing and knee-capping.

7. Since the applicant and his immediate family left Bangladesh, unrest has continued against BNP members, and action has been taken against them in the courts. The former leader of the BNP was imprisoned on corruption charges in 2018 and BNP members agitate for her release from prison.

8. He said that his father was driving a motorbike and was attacked by supporters of the Awami League, and his leg was broken and he was laid on the railway track and left there. People came and took the father away from the railway tracks and took him for treatment. He said his father did not get proper treatment for his leg until he went to Royal Prince Alfred Hospital in Australia when metal was put into his leg. His father now works part-time, making naan bread. His mother does not work because she has heart disease, diabetes, high blood pressure and kidney stones. She sees a doctor every week in Australia. The applicant wants to return to their home to assist them.

9. One issue in this review is whether protection obligations are owed in relation to the applicant, despite a view to the contrary having been taken in the Migration and Refugee Division of the Tribunal. That decision is presently under appeal to the Federal Court of Australia.

10. He said that before he left Bangladesh he was attacked while he was in college because he was involved in the student wing of the BNP and he was attacked by Awami League supporters. A group of people from the college attacked him, and he was injured in the head. He was hit with a large wooden stick, a branch from a tree. He was hit above the ears on both sides. He was hospitalised with concussion. It took a long time for him to recover. He gets a CT scan every two or three months in Sydney. He said he has been told by a doctor in detention that his condition may worsen.

11. He said that in detention he is given painkillers for headaches, and that he hears knocking sounds. This suggests that the consequences of the attack on him continue.

12. He said he took part in demonstrations on behalf of the BNP before he was attacked in college. His and his family’s connection with the BNP appears to have been the occasion for the attacks on his father and on him.

13. I will return to this matter when considering whether protection obligations are owed in respect of the applicant.

    Direction 99

14. The Tribunal is bound in this review by Direction 99 made under s 499 of the Act, the terms of which are published, so I will not repeat its terms. Instead I will deal with the expressly mentioned considerations in the order mentioned in the Direction and any other considerations which appear to me to be relevant in the light of the evidence before the Tribunal. The ultimate question is whether there is another reason, within the meaning of

    
    

    s 501CA(4)(b)(ii) of the Act, to revoke the cancellation of the applicant’s most recently held visa. There is no doubt that the applicant does not pass the character test.

15. I have taken note of the provisions of cl 5.2 of the Direction which sets out a framework within which decision-makers should approach, inter alia, the task which I am undertaking.

    Primary considerations

16. Clause 7 of the Direction refers to primary considerations which are such that, “generally” they should be given greater weight than other considerations.

17. Clauses 8.1, 8.1.1 and 8.1.2 refer to the first primary consideration, the protection of the Australian community. I note what is said in cl 8.1(1). I am to consider the nature and seriousness of the applicant’s conduct to date (cl 8.1.1) and the risk to the Australian community should the applicant commit further offences or engage in other serious conduct (cl 8.1.2).

    The nature and seriousness of the applicant’s conduct to date (cl 8.1.1)

18. The applicant after some delay pleaded guilty to a number of charges made against him in the Local Court and was dealt with in that court on 11 February 2021. The first two charges that the magistrate dealt with were intimidation offences. He threatened violence which occurred on 2 and 3 April 2020. He threatened violence but did not carry it out. The third charge related to stealing $350 worth of toilet paper. The next charge involved fraudulently advertising headphones for sale for $180. The next charge involved advertising a sham job and defrauding a victim of $860, supposedly so she could purchase a laptop to use on the job. In all the quantum of the fraud was $2,300.

19. On 15 July 2019, he made a false accusation against a person with intent to subject another to investigation, offending practised on two persons. The offence involved fraudulently offering a car for rent, via Facebook. He received $690. He had actually rented the car himself and told the true owner it had been stolen. He then went to the address supplied by the person who paid him $690 for the car, and called triple-0 and told the police that he had found the ‘stolen’ vehicle and a firearm had been produced in his presence.    

20. He was at conditional liberty for a number of other offences at the time of the offences just mentioned, and the Magistrate also dealt with those matters as a part of the sentence. They involved stealing a mobile phone, stealing $840 from a victim’s purse and stealing a poker machine ticket to the value of $700.

21. The applicant was sentenced to an aggregate term of three years and three months with a non-parole period of two years to date from 19 June 2020 and to expire on 18 June 2022.

22. The Magistrate noted that the offences were all committed in order to feed a gambling habit, that he was at a low risk of reoffending and had reasonable prospects of rehabilitation. New community correction orders to be of good behaviour and to attend court if called upon to do so, were put in place for two years by the Local Court.

23. The Magistrate noted that he had worked as a kitchen installer for three years before entering custody, and that he had not entered custody prior to June 2020, and that he had been abused in prison.

24. The applicant told the Tribunal that his employment history was that at first he worked as a kitchen hand, and in addition to working as a kitchen installer for nineteen months. He said he helped his family pay rent with his earnings. He said he also worked part-time moving furniture. And for two months, he did cleaning work.

25. His gambling addiction involved playing roulette in clubs and casinos. It started when one day a fellow worker involved in the kitchen installation suggested he come with him to a club. He was given $20 to play a roulette poker machine and won money, which he used to play more. I gathered that then he became hooked on gambling and, as the Magistrate said, his offending was in order to feed his gambling habit. He lost all his savings, and turned to the crimes for which he was imprisoned.

26. He said that the gambling began when he was 21 years old, that is, about three years after he arrived in Australia.

    The risk to the Australian community should the non-citizen reoffend or engage in other serious conduct (cl 8.1.2)

27. He said his gambling time is over. He wants to go back to his parents’ house and resume helping them with their expenses, and for that purpose to obtain fresh employment. He said he has barred himself from entering any club or casino in NSW. He said that he blames himself for his offending, and feels sorry for the victims. He said that what he did to them he had never done to anyone else in his lifetime.

28. He said he obtained some treatment for his gambling addiction in gaol, and wishes to obtain more such treatment at his own expense if he is released into the community. That additional treatment is part of his parole conditions.

29. His case is Pearson-affected and he took a pizza delivery job after he was released from detention for a period. He did that work 7 days a week. He said that by some arrangement involving the Federal Court he was in the course of obtaining a Medicare card, but the process was incomplete when he was returned to detention.

30. He told me he was sexually assaulted in prison.

31. The motivation of the offending, as I have said, was the gambling habit of the applicant. That habit arose when he was 21, and continued until his imprisonment two years later. If his gambling addiction recurs, it is possible that some offending will recur. On his history, without his gambling addiction, reoffending will not likely occur.

32. It appears to me that the applicant’s time in gaol and in detention has led him to desire counselling for his gambling addiction. His barring himself from clubs and the casino is clearly part of his effort to avoid gambling in the future. It is an important step in the right direction. No doubt his maturation at this stage, and his imprisonment and later his detention have been a wake-up call for him.

33. The chance that he might gamble again and reoffend does appear to be, as the Magistrate commented, low. His gambling from 2018 to 2020 cost him all his savings and his time in gaol and detention. The offending was, as the magistrate noted, the sole motivation for all his offending. If he is back in the community again, he may be expected to do as he did when briefly released from detention recently, that is, work hard.

34. If he were now released, he told me that he cannot now drive until November because his licence is suspended until then on account of unpaid driving fines. That would mean that he cannot work in pizza delivery until November 2023, but that would not be a bar to other employment.

35. Cross-examined by Ms Lecher-Boldt, for the Minister, the applicant agreed he had turned 19 just before his arrival in Australia.

36. The applicant began to tell the Tribunal when cross-examined the basis on which he originally pleaded not guilty to the various charges for which he was sentenced, but I am bound by the Magistrate’s findings on the essential ingredients of the offences, and I give no weight to what he said about those offences.

37. The applicant said that he understands that if he were to gamble again, and reoffend, he would either be put into detention indefinitely or be sent back to Bangladesh.

38. The applicant called no other witnesses to give formal evidence before the Tribunal.

    Family violence (cl 8.2)

39. This consideration does not arise.

    The strength, nature and duration of ties to Australia (cl 8.3)

40. This consideration relates to the ties which the applicant has to his mother, his father, and his sister in Australia. The duration of those ties is for his lifetime. I gathered that the relationship within the family is close. It seems clear that the applicant would again live with his parents if released and that, as in the past before his gambling began, he would assist them with living expenses. They would clearly be affected by his removal to Bangladesh or his being placed in long-term detention. They are all persons with a right to remain in Australia indefinitely.

41. The applicant has no other ties to the community, having lost his old friends when his gambling began, and no longer associating with any of his gambling friends.

42. Before his gambling began, he contributed positively to the community with his work.

    Best interests of minor children (cl 8.4)

43. This consideration does not arise.

    Expectations of the Australian community (cl 8.5)

44. This consideration relates to deemed expectations stated by the government, which does not favour the revocation of the cancellation.

    Other considerations

45. The expressly stated other considerations are set out in cl 9 of the Direction. Two of them only are relevant to the case.

46. The first is called the legal consequences of the decision, dealt with in detail in cl 9.1, and in cls 9.1.1 and 9.1.2.

47. The applicant believes that if he is returned to Bangladesh he will be killed. He told me that the person who replaced his father as the person having the leading role in the local area, as mentioned in [5] above, said clearly to his father that if any member of his family comes back to Bangladesh, they will be killed. It was upon this threat being made that the father, the mother, the applicant’s sister and the applicant flew to Sydney from Bangladesh, via Hong Kong. The applicant and his father both had injuries requiring medical treatment when they came here, as discussed in [8] and in [10], [11] and [12] above. As a person who has already been attacked by government supporters and seriously injured, the applicant is right to fear grave injury at the hands of the government or its supporters if he is returned to Bangladesh. The specific threat made to the family by the local leader, appointed by the Awami League government, is rightly taken seriously in the light of the attacks on father and son. It seems to me that on any view s 36(2)(aa) of the Act is engaged with respect to the applicant. He is a person in respect of whom there are reasonable grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Bangladesh, there is a real risk that the applicant will suffer significant harm. I accept the applicant’s evidence of the threat having been made, and about the matters referred to in paragraphs [8], [10], [11] and [12] above. It should be noted about the threat conveyed to the father was taken seriously enough to cause the whole family to leave the country of their birth, and that it was a threat of killing all members of the family if they (or clearly, any of them) returned to Bangladesh, that is, anywhere in Bangladesh.

48. More up to date country information suggests that BNP members are still at risk in Bangladesh.[1] That is, violence may still be practised upon them. Mr Duldig, who replaced Ms Lecher-Boldt on the second day of the hearing, accepted that the situation in Bangladesh at the present time appears to be worse for people prominent in the BNP than it was when the MRD decision was made. An Amnesty International Report refers to actions taken against such persons in December of 2022.[2]

    [1] Administrative Appeals Tribunal Migration and Refugee Division, The Bangladesh Nationalist Party (BNP) (Report, March 2022); ‘Bangladesh: Crackdown on Political Opposition’, Human Rights Watch (Web Page, 10 October 2022) < ‘Bangladesh: Violence, Repression Ahead of General Elections’, Human Rights Watch (Web Page, 12 January 2023) < Department of Foreign Affairs and Trade, DFAT Country Information Report Bangladesh (30 November 2022); ‘Freedom in the World 2023 Bangladesh’, Freedom House (Web Page) <

    [2] Amnesty International, Amnesty International Report 2022/23: The state of the world’s human rights (Report No POL 10/5670/2023, 27 March 2023) <>

    I have read the MRD decision, and remarks there made about the credibility of the applicant are made there which I have not made. I am not bound by that decision and would not follow it for reasons I have given. Factual findings I have made were not the foundation of that decision.

49. Then, returning to the “other” consideration I am addressing, it semes to me that the provisions of s 197C of the Act produce the result that if the applicant is not released from detention, he faces the prospect of indefinite detention. For a man of 26 years, with some significant health issues to face such a prospect, with depression the likely consequence as time goes on, is a result to be avoided.

50. The next “other” consideration relates to the extent of impediments if removed (cl 9.2). The age of the applicant and his health, and the treatment which he did and did not receive in Bangladesh when he was injured and hospitalised suggests that the applicant would be adversely affected if he were returned to Bangladesh. The age and health of the applicant (cl 9.2(1)(a)) must be taken into account in this “other” consideration. The contrast between Bangladesh and Australia from that point of view suggests to me that, because of the risk of further injury to the applicant if he is returned, he may well face significant impediments because of the state of medical care in Bangladesh.

    Balancing the considerations

1. In my opinion, the correct or preferable decision balancing all the matters discussed above is to revoke the cancellation of the applicant’s visa. The consideration which most does not favour him is the factor of expectations of the Australian community. While the factor of protection of the community has certain aspects of concern if the applicant should reoffend, there are protective factors: they include his desire to remain with his family, and give them assistance, his desire to obtain further treatment to avoid further gambling, his conduct before the gambling addiction, his work ethic, his determination not to reoffend and his remorse. Next to be mentioned is the fact that his ties to the community (his immediate family) are strong. The factors of the legal consequences of the decision and the extent of impediments if removed also favour revocation.

2. In the result the decision under review is set aside and substituted with a decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 53 (fifty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM KC

...................................[SGD].....................................

Associate

Dated: 10 August 2023

Date(s) of hearing:	3 & 12 July 2023
Applicant:	In person
Solicitors for the Respondent:	Clayton Utz