YKZZ and Minister for Home Affairs (Migration)
[2019] AATA 3248
•30 August 2019
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248 (30 August 2019)
Division:GENERAL DIVISION
File Number: 2017/3248
Re:YKZZ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:30 August 2019
Place:Sydney
The Tribunal decides that:
1.The reviewable decision made 18 October 2016, being a decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Spouse (Residence) visa, is set aside.
2.In substitution, it is decided that, in accordance with subsection 501CA(4) of the Migration Act 1958 (Cth), the decision to cancel the Applicant’s visa made 9 May 2016 is revoked.
...........................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – Direction No. 79 – primary considerations – protection of Australian community from criminal or other serious conduct – best interests of minor children – expectations of Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties to Australia – impediments if removed from Australia – Applicant unlikely to re-offend – risk to Australian community acceptable – Applicant likely to face considerable impediments if returned to Iran – decision under set aside and substituted with decision revoking the mandatory cancellation
LEGISLATION
Migration Act 1958 (Cth)
CASES
DKXY v Minister for Home Affairs [2019] FCA 495
FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Department of Foreign Affairs and Trade (Cth), DFAT Country Information Report – Iran, 7 June 2018
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79 – Migration Act 1958 – Direction under section 499 – 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 J W Constance
30 August 2019
A: Introduction [1] B: Background [7] C: Relevant Legislation [16] D: Direction No. 79 [21] E: The Issue for Determination [30] F: Reasoning [33] F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct [33] F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision [64] F3: Primary Consideration 3: Expectations of the Australian community [67] Other considerations [74] G: The Balancing Exercise [90] H: Conclusion [101] A: INTRODUCTION
The Applicant is a 42-year-old citizen of Iran.
He first entered Australia in November 2006 as the holder of a Class TO Subclass 300 (Prospective Marriage) visa. In 2009, he was granted a Class BS Subclass 801 Spouse (Residence) visa. He held that visa until it was cancelled in May 2016.
On 13 March 2015, the Applicant was convicted and sentenced to imprisonment for four years and six months for the offence of manufacturing an indictable quantity of a prohibited drug and exposing a child to the manufacture.[1] By reason of this sentence, on 9 May 2016 the Applicant’s visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).[2] I will refer to this decision as the “mandatory cancellation”.
[1] Exhibit R1 at 115.
[2] Exhibit R1 at 128.
On 18 October 2016, a delegate of the Minister for Immigration and Border Protection decided not to revoke the mandatory cancellation.[3] This decision was made on the basis that the delegate was satisfied that the Applicant did not pass the character test set out in the Act, and that there was not another reason why the mandatory cancellation should be revoked. The decision of 18 October 2016, referred to as the “reviewable decision”, is the subject of this application for review.
[3] Exhibit R1 at 9.
At the time of the hearing of the application, the Applicant was being held in immigration detention.
For the reasons which follow, the reviewable decision will be set aside. In substitution, it will be decided that the mandatory cancellation of the Applicant’s visa is revoked.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant. He provided a statutory declaration dated 11 June 2019[4] and gave evidence at the hearing. I am satisfied he was an honest witness and gave his evidence to the best of his recollection.
[4] Exhibit A2.
The Applicant’s mother and siblings live in Iran. He is an adherent of the Baha’i faith. He married in Iran and divorced prior to his coming to Australia.
The Applicant married for a second time. There is one child of this marriage, a daughter who was born in Australia. She is an Australian citizen.
Shortly after he arrived in Australia, the Applicant gained employment as a welder. He was able to support himself and his family. He worked as both an employee and manager, and later incorporated a company of which he was the major shareholder. The company had several employees.
The Applicant described the manner in which he became addicted to the drug, ice, as follows:
In mid-2008, I was working on a contract in Brisbane. I was on the night shift (from 9pm to 4am) for approximately three months. Due to my management role and working other jobs, I was exhausted because I had to work nights as a physical labourer and then work during the day organising administration, employees, on the other job and so on.
After approximately two months, I noticed that one of the other workers who normally arrived at work annoyed, tired and grumpy would suddenly, just after arriving at work, be happy and full of energy. He could work all night and not get tired.
After observing this behaviour for a while, I jokingly asked him what he was on. I was shocked when he answered that he was on ice and explained what it was. I know it sounds very naive, but I did not know what ice was. Growing up in Iran (which has quite a significant drug problem), I knew about some drugs – heroin and marijuana. I had, however, never heard of ice, which was not known in Iran until relatively recently.
I asked the worker how ice worked and if it had any negative impacts. He said it had no side effects. He said there would be no problem taking it. As such, in order to stay awake all night and be able to work during the day, I started taking ice.
In the beginning, I had no problems functioning while taking ice. In fact, during the first week of taking ice, I worked all night with lots of energy, and then I got lots of other work completed during the day. I could not believe that I could stay awake and function for so long.
After the contract in Brisbane was completed, I returned to Sydney.
At first, I only took ice once or twice every two to three weeks. By 2010, however, I was starting to become seriously addicted to ice.
In 2010, I was addicted to ice. I started taking it almost every day. I could not live without it. I no longer felt good when I took it, but I had to keep taking it because I felt I needed it and the withdrawal symptoms were very bad and painful. I couldn’t do anything without it.
During 2010 and 2011, I kept working part-time, but I could no longer work properly. I was not getting paid much at all. I could no longer afford to buy ice. As such, I sold whatever I could from the family home to get drugs. I then I [sic] borrowed money and used all my savings to purchase the recipe to make ice. Apart from starting to take ice, this was the worse [sic] decision of my life.[5]
[5] Exhibit A2 at [15]-[23].
In December 2011, a fire broke out in the laundry of the apartment in which the Applicant was living with his wife and young daughter. The fire was caused by the reaction of chemicals used by the Applicant for the purpose of producing ice. As a result of his efforts to control the fire, his face and hands were burned and he suffered severe burns to his throat and lungs. He was hospitalised for approximately six days. The residents of the unit block, including his family, had to be evacuated.
From 20 November 2013 until his conviction and sentence on 13 March 2015, the Applicant was held in custody. He was imprisoned from the date of his conviction until 30 March 2017, when he was transferred to an immigration detention centre.
The Applicant’s criminal record
The Applicant’s adult criminal record is as follows:
Offence date Court date Offence Penalty/Sentence 09/12/2011 13/03/2015 Manufacture indictable quantity of drug – expose child 54 months’ imprisonment commencing 19/11/2013, 30 months’ non-parole Damage property by fire/explosion 24 months’ imprisonment Possess precursor intended to use in manufacture/production 18 months’ imprisonment 07/09/2012 05/09/2013 Resist officer in execution of duty Convicted, 12 month good behaviour bond Assault officer in execution of duty Convicted, 12 month good behaviour bond 06/11/2012 25/02/2013 Stalk/intimidate intend fear of physical/mental harm Convicted, 12 month good behaviour bond 24/01/2013 05/09/2013 Resist officer in execution of duty Convicted, 12 month good behaviour bond Goods in personal custody suspected being stolen (not m/v) Convicted, 12 month good behaviour bond 29/04/2013
09/01/2014 Goods suspected stolen in/on premises (not m/v) s10 conviction 21/07/2013
09/01/2014 Drive vehicle under influence of alcohol – 1st off
s10 conviction 6 month disqualification 19/11/2013
29/11/2016 Manufacture prohibited drug
36 months’ imprisonment commencing 19/03/2015, 24 months’ non-parole Failure to pass the character test
It is not in dispute that, by reason of his criminal record, the Applicant does not pass the “character test” set out in the Act.[6]
[6] Applicant’s Statement of Facts, Issues and Contentions dated 24 May 2019 at [9]-[10]; Respondent’s Statement of Facts, Issues and Contentions dated 28 May 2019 at [2].
C: THE RELEVANT LEGISLATION
Subsection 501(3A) of the Act provides:
(3A) 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.
This mandatory cancellation decision is referred to later in the Act as the “original decision”.
Paragraph 501(7)(c) provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more …
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.
D: DIRECTION NO. 79
Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that the “factors that must be considered in making a revocation decision are identified in Part C of this Direction”.
Under the heading General Guidance, subparagraph (1) provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. A copy of Part C is “Annexure A” to these reasons.
In paragraph 6.3, the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[7] Primary considerations should generally be given greater weight than the other considerations.[8]
[7] Direction at [6.2(3)] and [8(1)].
[8] Direction at [8(4)].
Paragraph 13(2) provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
PART E: THE ISSUE FOR DETERMINATION
I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 19). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e. other than the Applicant passing the character test] why the original decision should be revoked”.[9]
[9] Migration Act 1958 (Cth), s 501CA(4)(b)(ii).
If I am satisfied of all the relevant requirements of subsection 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[10]
[10] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].
F: REASONING
F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1, which include:
o… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community …;
o[t]he nature and seriousness of the non-citizen’s conduct to date;
o[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[11]
[11] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
F1.1: The nature and seriousness of the Applicant’s conduct to date
The Applicant does not dispute the entries contained in the National Police Certificates dated 15 June 2015[12] and 26 April 2016.[13]
[12] Exhibit R1 at 115.
[13] Exhibit R1 at 119.
The Applicant’s conduct to date must be regarded as serious, particularly as it involved the production of a prohibited drug and the exposure of his daughter to that process, as well as the intimidation of his wife.
Offences committed on 9 December 2011 (damaging property by fire and related offences)
In his remarks on sentencing the Applicant in the District Court of New South Wales, Judge Conlon said, in part:
In respect of the objective seriousness of the offences it is clear from a recitation of the facts that the resultant fire occurred as a result of an explosion which no doubt occurred in the process of the manufacture of these drugs. … There is nothing in the facts to indicate the type of lab that had been set up, other than to say that it could not have been an elaborate set up and on the balance of probabilities I am prepared to accept that it was a rather primitive attempt at manufacturing the methylamphetamine. There is nothing to suggest that the manufacture of the methylamphetamine was in order to supply for any financial gain. Indeed, when I come to the subjective material I have been able to be satisfied on the balance probabilities that his attempts to manufacture the drug were so that he could obtain the methylamphetamine for his own use.
There can be no doubt that the establishment of these clandestine laboratories does present a significant potential risk of danger to those who are in the vicinity. In this particular case the potential danger extended not only to his own wife and child, but to the other residents in that building. Substantial damage was caused by the explosion and the resultant fire.
Accordingly, they are most serious offences, albeit the Court must distinguish the charge under s195(1)(b) [of the Crimes Act 1900 (NSW)] from those that regularly come before the courts where somebody has intentionally set about setting fire to premises and or buildings or motor vehicles.[14]
[14] Exhibit R1 at 89-90.
On the basis of the evidence of the Applicant, and the findings of fact made by His Honour, I am satisfied that the Applicant used any drugs he manufactured for his own purposes and not for supply to others.
Offences of resisting Police in the execution of duty committed 7 September 2012 and 24 January 2013, and assaulting Police committed 7 September 2012
The Applicant gave evidence that on 7 September 2012 he was stopped by Police and his car was searched. When a Police Officer told him he was under arrest he pulled away from the Officer and attempted (unsuccessfully) to evade arrest. On 24 January 2013, the Applicant’s car was being searched when he again attempted to run away from the scene. He was again charged with resisting Police.
Despite efforts made by the solicitors for the Minister, no detailed statements of facts were available in respect of these offences. While any offence of assaulting a Police Officer in the execution of his or her duty is serious, I accept the evidence of the Applicant that on neither occasion did he fight or struggle with the Police Officers involved. It is to be noted that the Applicant’s evidence as to the circumstances of these offences was not challenged by the Minister at the hearing.
I have also taken into account in assessing the seriousness of these offences that the Court dealt with the assault and resist Police charges together on 5 September 2013. On each charge the Court made a conditional release order under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Applicant was required to continue counselling with a nominated drug and alcohol service for a period of 12 months.[15] Taking into account that the offences of assaulting Police and resisting Police have maximum sentences of imprisonment for 5 years and 12 months respectively, I am satisfied that the offences committed by the Applicant should be regarded as being towards the lower end of the scale of seriousness for those types of offences.
[15] Exhibit R1 at 121.
Offence of stalking/intimidation committed 6 November 2012
The conviction for this offence arose out of the Applicant sending text messages to his wife after their separation concerning his contact with their daughter. The Applicant was convicted and released on a bond to be of good behaviour for a period of 12 months. As this offence involved threats intended to cause fear of physical or mental harm,[16] I am satisfied that it was a crime “of a violent nature” against his wife and must be viewed “very seriously”.[17] However, I do take into account that there was no physical violence involved.
[16] Exhibit R1 at 117.
[17] Subparagraph 9.1.1(1)(b) of the Direction provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including … the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.
Offence of manufacturing a prohibited drug committed 19 November 2013
This offence occurred when the Applicant continued to suffer addiction to ice. He was endeavouring to extract chemicals from non-prescription medication in order to manufacture drugs for his own use.
F1.2: The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that I must have regard to the following considerations cumulatively:
(a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[18]
[18] Direction at [13.1.2(1)].
F1.2.1: The nature of future harm
Should the Applicant further engage in conduct similar to that referred to in relation to his offences involving drugs, there would be a significant risk of serious physical and/or psychological harm to members of the community, including members of his own family. Conduct similar to that in which he has previously engaged (other than drug offences) could lead to harm to members of the community including members of the Police Force going about their duties.
F1.2.2: The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant’s evidence
Time in prison and immigration detention
In his statutory declaration dated 11 June 2019, the Applicant said, in part:
In November 2013, I entered prison. Looking back, I can honestly say that prison was the best thing that happened to me at that time. By being in prison, I was able to get off drugs. I entered into various programs that helped me do this, including the Getting Smart program (completed in July 2014) … and the Alcohol & Other Drug Service at Long Bay Hospital (April 2014) … . I self-referred to these programs.[19]
[19] Exhibit A2 at [32].
While in prison the Applicant undertook the following vocational training courses:
·shift material safely using manual handling methods (as part of a Certificate I in Access to Work & Training (Introductory)), completed in 2014;
·identify own essential skills (as part of a Certificate I in Access to Vocational Pathways), completed in 2016.
The Applicant also worked at the Silverwater Metropolitan Remand and Reception Centre.
The Applicant has been held in three different detention centres, in three different States. Whilst at Villawood Immigration Detention Centre he attended Narcotics Anonymous meetings on a regular basis. After he was transferred to Melbourne Immigration Transit Accommodation, he and other detainees help start a Narcotics Anonymous program there.
Time spent free of drug and alcohol abuse
The Applicant has not used illicit drugs during the past five years, despite such drugs being readily available in detention. He intends to remain free of illicit drugs and to remain sober. He is committed to not re-offending or engaging in similar behaviour.
Future relationship with his daughter
His determination to remain free of illicit drugs and not to abuse alcohol is strengthened by his wish to re-establish his relationship with his daughter if he is able to return to live in the community. As a result of his drug-use, his relationship with his wife has ended. On the advice of a counsellor, he has not had direct contact with his daughter during his time in immigration detention.
Should he be released to live in the Australian community, the Applicant intends to live in a different part of Sydney to minimise the risk of his coming into contact with former associates with whom he was involved in drug-abuse. He plans to remain within commuting distance of his daughter so as to facilitate contact with her.
Support from the Baha’i faith and community
Upon his transfer to Villawood Immigration Detention Centre in 2017, the Applicant re-established contact with the Baha’i community in Sydney. He believes that he will find support from his faith and his faith community should he be released from detention and remain in Australia.
Employment prospects
The Applicant is confident he can gain employment as a welder should he be able to return to live in the Australian community.
Reasons for sentencing 13 March 2015
When sentencing the Applicant for the offences he committed at the time of the fire, Judge Conlon said, in part:
Concerning his future intentions the psychologist stated that the offender had a high level of motivation to return to the work force and indeed hopes to re-enter the welding trade sometime in the future.
…
He informed the psychologist upon entering custody that he experienced withdrawal symptoms, he had hot and cold sweats, muscle pain, shaking, headaches, disruptive sleep, emotional disturbance, nausea, vomiting and cravings. He said it took several weeks for those symptoms to subside. He reportedly engaged in the Getting Smart Program in custody and indicated that he found that helpful. He also had been attending regular Narcotics Anonymous meetings whilst in custody and he said that was a particular benefit to him.
…
In respect of the present offences he informed the psychologist that he had been attempting to make ice in order to feed his own addiction. She commented, “It was evident that his judgement was impaired as a result of the large quantity and increased frequency with his substance abuse at that time”.
…
By way of summary Ms Taylor, the psychologist stated,
“At the time of the current offending behaviour [the Applicant] did not present with a criminal history and as such his involvement in the offending behaviour appears to be out of character … it is likely that his deteriorating psychological health and his increasing substance abuse negatively impacted his judgement and led to his poor choice at the time of the offences. He presented with a level of remorse related to his involvement in the offending conduct”.
…
[The Applicant’s] background indicates that for a substantial period of time in his adulthood he has been a rather industrious person who has shown an ability to seek out employment and to maintain it. He has also demonstrated over the years a deal of enterprise in relation to setting up and running his own businesses.
Accordingly, upon my consideration of that material I am satisfied that he has very good prospects of rehabilitation …[20]
(Emphasis added.)
[20] Exhibit R1 at 93-97.
Reasons for sentencing 29 November 2016
The Applicant appeared before the District Court of New South Wales on 28 November 2016 for trial on two charges of manufacturing a prohibited drug and one charge of possessing a precursor intended for use in the manufacture or production of a prohibited drug.[21] Shortly after the trial commenced and before any evidence was called, the Applicant pleaded guilty to one of the manufacturing charges. This offence occurred almost two years after the offences committed at the time of the fire in the unit occupied by the Applicant and his family, but before he was sentenced for those offences.
[21] Exhibit R1 at 115, 248.
The agreed facts tendered to the Court indicated that the Applicant was apprehended on a street with a shopping trolley containing, amongst other things, chemicals suitable for use in the manufacture of the prohibited drug, methylamphetamine. A subsequent search of the Applicant and the premises in which he was living revealed further chemicals of this nature and equipment used in the manufacture of the drug.
In sentencing the Applicant, Judge Pickering said, in part:
I accept that he is remorseful for what he has done here. True it is that much of the remorse is the impact that drugs have had on his own life, but I think he also has insight through what has happened to him about the significance of methylamphetamine in our community and, as such, the seriousness of the manufacturing before the Court, so I give weight to the plea in both those aspects that I have indicated.
…
[A photograph tendered by the Crown] showed that, really to be perfectly frank, he was living a quite pathetic existence at that stage. Living in a small area on a mattress with a whole bunch of chemicals around him. It was indicative of him being a person who, whilst manufacturing drugs, seemingly was doing most of it, if not all of it, purely to feed his own habit. This was anything but a commercial operation going on, but it was a dangerous operation.
…
… I have had the benefit now of hearing him as a witness giving what I found to be truthful evidence on the sentencing aspect of the matter. Had he simply just sat there in a trial and been convicted after a jury verdict he would have been in no position to give any evidence that outlined his life and his acceptance of guilt in relation to this matter. So it is of much benefit to him in the grand scheme of things here to acknowledge his guilt and he has shown himself to be someone capable of being honest about his involvement in relation to this matter.
…
… As such the particular amount to be manufactured points the matter towards the lower end on the scale of objective seriousness …
…
… Nevertheless he had a seemingly successful life in Iran. He worked with the family, he had no reason to suggest he was anything but of good character when he came to Australia at 30 years of age on a fiancé visa. Indeed for quite a while in Australia he was again a very successful person. I often say to people when you look at someone who comes to Australia with no command of English and a very different culture in Australia to Iran, the fact that you can achieve so much as he did before he ran into problems with the criminal law is actually quite remarkable.
…
… I think the mere fact that the offender has insight and real insight to what has happened in his life, does give him some prospects of rehabilitation. … I think he has real prospects of not necessarily re-offending, albeit that again I have to be guarded about that, because so much of that would flow on how he rehabilitated himself on drugs.
…
… I think one of the answers that he gave Mr Crown in cross-examination was probably indicative of how he was living his life at that time of offending. He was living it day to day and he was not really thinking through the consequences of anything he was doing.[22]
(Emphasis added.)
F 1.2.3: Discussion
[22] Exhibit R1 at 249-260.
In this matter I do not have the benefit of a recent assessment by a psychologist as to the risk of the Applicant re-offending or engaging in other serious conduct. However, after receiving a report from a psychologist, Judge Conlon in 2015 expressed the view that the Applicant had “very good prospects of rehabilitation”.[23]
[23] Exhibit R1 at 97.
Judge Pickering in 2016 referred to the Applicant’s insight into his offending and that this gave him “real prospects of not necessarily re-offending”.[24] His Honour also referred to the Applicant’s productive life prior to his drug addiction.
[24] Exhibit R1 at 259.
The Applicant has spent over five years in either prison or immigration detention separated from his family. This should serve as a deterrent to his resuming his past lifestyle. He has undertaken several rehabilitation courses and he has been free of illicit drugs and excessive use of alcohol. I am satisfied that he genuinely intends not to re-offend and that his addiction is now controlled to the extent that it is unlikely that he will again find himself in the position that led to his criminal activity.
Since the remarks of the Courts set out above were made, the Applicant has acted to rehabilitate himself. To date he has shown that the comments of the sentencing Judges as to his prospects of rehabilitation were justified.
I take into account also that the Applicant has the incentive of the possibility of re-establishing his relationship with his daughter. I am satisfied that he understands his drug use has caused him to lose that relationship. In addition, he will have support of the Baha’i community and friends to assist him with his continued efforts to rehabilitate himself.
In considering all of the evidence, I have come to the conclusion that it is unlikely that the Applicant will re-offend or engage in other serious conduct.
I am satisfied that the Applicant’s most serious offending was associated with his need to satisfy his drug addiction. While I have decided it is unlikely that he will re-offend, his resolve has not been tested in the wider community where he will inevitably find himself subjected to the stresses of living and working in the community. Nevertheless, taking all of the evidence into account, I conclude that while there is a risk to the Australian community, it is an acceptable risk.
F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision
The Applicant’s daughter is 11 years of age. She resides with her mother who is estranged from the Applicant. His daughter has had no contact with the Applicant since he was placed in immigration detention in March 2017.
I accept the evidence of the Applicant that, on the advice of a counsellor, he has not attempted to contact his daughter during the past two years. I accept also that he wishes to re-establish contact with his daughter should he be able to return to live in the Australian community, and that he will act in her best interests.
Further, I am satisfied that the Applicant has endeavoured to maintain as much contact with his daughter as he has been able, consistently with the wishes of the child’s mother and the advice of the counsellor. There are no court orders restricting the Applicant’s contact with his daughter. He receives information as to her progress through his ongoing relationship with her maternal grandfather and uncle.
F3: Primary Consideration 3: Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.
In YNQY v Minister for Immigration and Border Protection,[25] Mortimer J said:
76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[25] [2017] FCA 1466.
Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[26] After referring to the relevant paragraphs of the reasons in YNQY, one of which I have set out above, Griffiths J said:
29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
(Emphasis in original.)
[26] [2019] FCA 495.
After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[27] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[27] (2016) 248 FCR 296.
Having considered these judgements, I have come to the conclusion that I should adopt and apply what has been described as “the broad approach”.[28] As is usually the case in matters such as this, the Tribunal has received little, if any, assistance by way of evidence in taking into account this primary consideration.
[28] [2019] FCA 495 at [34].
There can be little doubt that different individuals and groups within the Australian community will hold differing views as to the particular circumstances in which the cancellation of a visa should be revoked; some, but not all, may support the Government’s view.
Taking into account all of the circumstances of this matter, I have come to the conclusion that the Australian community would expect that the cancellation of the Applicant’s visa be revoked. Those circumstances include:
·the Applicant’s offending took place when he was suffering the effects of drug and alcohol abuse;
·in 2015 and 2016, the sentencing Courts described the Applicant’s prospects of rehabilitation as “very good”,[29] and as depending “on how he rehabilitated himself on drugs”;[30]
·since those remarks were made, the Applicant has made efforts to rehabilitate himself and has not used illicit drugs;
·he has not used illicit drugs nor abused alcohol in the past five years;
·his offences involving Police Officers carrying out their duties were at the lower end of the scale of objective seriousness;
·the Applicant’s daughter is an Australian citizen residing in Australia and with whom the Applicant wishes to resume contact if he is released from detention;
·the Applicant has been a productive member of the Australian community and wishes to be able to return to employment;
·the Applicant has engaged in various rehabilitation courses to assist him to be a law-abiding member of the community.
[29] Exhibit R1 at 97.
[30] Exhibit R1 at 259.
F4: Other considerations set out in the Direction
At paragraph 29 of these reasons I have set out paragraph 14 of the Direction, which mandates that I take into account further considerations as are relevant.
F4.1 International non-refoulement obligations
The Applicant’s evidence
In his statutory declaration dated 11 June 2019,[31] the Applicant gave evidence of events which he claimed were incidents of persecution and/or torture he was subject to when he was living in Iran, as well as those perpetrated against members of his family. He confirmed the veracity of his statutory declaration when he gave evidence at the hearing. They include the incidents set out below.
[31] Exhibit A2.
In 1997, during his compulsory military training in Iran, the Applicant was detained for approximately 30 days. At times during this detention he was hung by his arms with his feet barely touching the ground. At times he was held in a small cold cell and was not properly fed. Attempts by his family to have him released were unsuccessful. The Applicant believes he was released when his captors realised he had been mistaken for another person.
After his military training, the Applicant worked with his brothers as it was difficult for him to gain other employment by reason of his Baha’i faith. He has been verbally abused in public and his family home has been attacked. He believes these actions have been taken against him because of his faith.
The Applicant was arbitrarily detained by airport officials in 2011 as he was leaving Iran to return to Australia. On this occasion his brother produced the title deed to his (the brother’s) house to secure the Applicant’s release.
The Applicant’s nephew has been detained in Iran on several occasions. He is responsible for maintaining the list of Baha’i members in the community of the Applicant’s family in Iran. Each time the nephew has been detained the lists have been seized by Iranian authorities. The Applicant’s name is included in these lists and, as a result, the Applicant believes he is easily identifiable as a member of the Baha’I faith.
Two of the Applicant’s siblings have been arbitrarily detained on several occasions. During detention they have been interrogated as to their Baha’i faith and related activities.
The Applicant owes money in Iran as a result of debts he incurred to support his drug habit in Australia. He believes he will be punished for this and for his drug offences in Australia should he be returned to Iran.[32]
[32] Exhibit R1 at 77-78.
Notwithstanding the treatment he has experienced, the Applicant visited Iran on several occasions in 2011. He made these trips to visit his father who was ill and who subsequently passed away.
Department of Foreign Affairs and Trade Country Information Report – Iran (7 June 2018)[33]
[33] Respondent’s Statement of Facts, Issues and Contentions dated 28 May 2019, Attachment 2: 1-51.
On 7 June 2018, the Department reported in relation to the Baha’i:
The Baha’i faith has its roots in 19th century Persia, and promotes a belief in the unity of God, religion and humanity. According to Human Rights Watch data, the Baha’i community numbers at least 300,000 and is concentrated in Tehran and Semnan. Baha’i is not a recognised religion. In 1991, the Supreme Council of the Cultural Revolution issued a determination on ‘the Baha’i question’ that concluded that Baha’i contradicted the tenets of Islam. A subsequent ruling in 2009 declared that all existing Baha’i administrative arrangements were illegal. As a result of these rulings, thousands of Baha’i have been expelled from their jobs, with their pensions terminated, and Baha’i have been barred from employment in the public sector; authorities have pressured companies to dismiss Baha’i employees; banks have blocked the accounts of Baha’i clients; and authorities have barred Baha’i students from enrolling in universities. In her August 2017 report, the UN Special Rapporteur found that at least 21 Baha’i students who had enrolled in higher education institutions (and attempted to hide their religious identity) were expelled between December 2016 and May 2017.
International sources have reported that authorities continue to harass, interrogate and arrest Baha’i; the government uses anti-Baha’i rhetoric in official statements; employers face considerable societal pressure not to employ Baha’i or to dismiss them from private sector jobs; there have been several cases of vandalism in Baha’i cemeteries; Baha’i are unable to legally reproduce or distribute religious literature; and Baha’i families are excluded from official recognition of family law matters, including marriages, divorces and custody arrangements.
DFAT assesses that Baha’i face a high risk of both official and societal discrimination based on their non-recognised status, the hostile rhetoric used against them in official statements, and limits imposed on their employment, education and family law status.[34]
[34] Ibid at [3.36]-[3.38].
F4.2 Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has resided in Australia for the past 12½ years. His former wife and their daughter are Australian citizens and both reside permanently in Australia. The Applicant also has an ongoing relationship with his father-in-law and brother-in-law who keep him informed as to the progress of his daughter. He has friends in Australia and he is a member of the Baha’i community.
Since his arrival in Australia in 2006, and up until his imprisonment in November 2013, the Applicant has been variously employed or the operator of his own business.
F4.3 Impact on Australian business interests
Although the Applicant has worked in Australia and at times operated his own business employing others, there is insufficient evidence for me to be satisfied that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.
F4.4 Impact on victims
I do not have sufficient evidence to enable me to make a finding as to the impact of a decision to revoke the mandatory cancellation on the Australian community, including the victims of the Applicant’s crimes and their families. The Minister did not call any evidence to assist me in this regard. I was not made aware of any reason why such evidence was not available.
F4.5 Extent of impediments the Applicant may face if he is removed from Australia
I have referred to the impediments the Applicant may face if he is removed to Iran when considering the evidence in relation to the possibility that Australia owes non-refoulement obligations in respect of the Applicant. I have taken that evidence into account when considering the weight to be given to this consideration.
PART G: THE BALANCING EXERCISE
The Applicant’s past conduct, which includes an offence involving the intimidation of his wife, drug offences and resisting Police, is objectively very serious and places him at significant risk of losing the privilege of residing in Australia. However, it is necessary to consider the circumstances of his offending.
I have taken into account that the Applicant’s offences relating to the manufacture of drugs arose from attempts to satisfy his own addiction, which in turn arose from his desire to be able to work longer hours. While this does not excuse his conduct in any way, it does make it more likely that he will not re-offend now that he has been free of illicit drugs for the past five years. I have taken into account also that on both occasions when the Applicant was sentenced for drug offences, the Court referred to his having prospects (and on one occasion “very good prospects”) of rehabilitation. He has undertaken the courses available to him to assist him in his determination not to re-offend.
I have found that it is unlikely that the Applicant will re-offend. However, there is still some risk that he will do so and therefore some risk of harm to the community should he revert to his past conduct.
The Applicant has raised the issue of Australia’s non-refoulement obligations and their possible application to him.
In FAF18 v Minister for Immigration and Border Protection,[35] the Federal Court said, in part:
The Full Court of the Federal Court has recognised that the Minister, when considering cancellation of a visa under subs 501(2), is not required to consider whether Australia has non-refoulement obligations to a person who is able to make an application for a protection visa (see Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 67 at [61]-[65]). However, that does not absolve the Minister from addressing a claim to fear harm if an applicant is forced to return as a reason for revoking any such cancellation decision. Rather, Justices Bromberg and Mortimer held in BCR16 at [32}-[75] that the Minister will fail to carry out the task required by subs 501CA(4) if the Minister fails to address or turn her or his mind to the risk of harm that an applicant may face on return to her or his country of nationality solely because that risk may be addressed through the protective visa process: BCR16 at [62] and [72]; see also BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [60] – [71] (Griffiths J); and Steyn at [15] – [16] (Jagot J) (applying BCR16 by analogy).
[35] [2018] FCA 1474 at [32].
At the time of publication of these reasons, the Applicant has an application for a protection visa before the Tribunal which is yet to be considered. In these circumstances, it is inappropriate that I give detailed consideration to the Applicant’s claims in this regard, other than to take into account that the Applicant has given evidence of his personal circumstances, which may enliven Australia’s non-refoulement obligations and which will require consideration by the Tribunal at a later date.
I do take into account that the Applicant will probably face considerable impediments should he return to Iran. His evidence as to the treatment he may receive is consistent with the matters reported by the Department of Foreign Affairs and Trade in its Country Information Report in relation to Iran.
In summary, I am of the view that the factors which weigh against revoking the mandatory cancellation do not weigh heavily so.
The factors which weigh in favour of revoking the mandatory cancellation are:
·the best interests of the Applicant’s daughter;
·the Applicant’s effort to rehabilitate himself;
·that it is unlikely that the Applicant will re-offend or engage in other serious conduct;
·the expectations of the Australian community; and
·the impediments which the Applicant is likely to face if he is returned to Iran.
Although the Applicant has not had direct contact with his daughter for some time, I am satisfied that he does wish to re-establish that contact. Prior to his addiction to ice, the Applicant demonstrated that he could play an active role in the community and support his family. I am satisfied that the Applicant could again play a positive role in his daughter’s life if he is able to return to live in the Australian community. On the other hand, given his estrangement from his former wife, it is unlikely that he would have any meaningful contact with his daughter should he return to live in Iran.
Weighing all of the factors I have come to the conclusion that, in this application, the matters I have referred to above outweigh the need to protect the Australian community from any risk associated with the Applicant being permitted to return to live in the community.
PART H: CONCLUSION
The reviewable decision made 18 October 2016, being a decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s Class BS Subclass 801 Spouse (Residence) visa, will be set aside.
In substitution, it will be decided that, in accordance with subsection 501CA(4) of the Migration Act 1958 (Cth), the decision to cancel the Applicant’s visa made 9 May 2016 is revoked.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 30 August 2019
Date of hearing: 4 July 2019 Date final submissions received: 16 August 2019 Solicitors for the Applicant: Ms A Battisson, Human Rights for All Solicitors for the Respondent: Ms L Crick, Clayton Utz ANNEXURE A
PART C
13. Primary considerations - revocation requests
(1) Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen 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. A noncitizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c)Expectations of the Australian community.
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen's conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a.The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b.The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
13.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or
non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.
14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
14.1 International non-refoulement obligations
(1) 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non revocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) 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, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
14.3 Impact on Australian business interests
(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
14.4 Impact on victims
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afford procedural fairness.
14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen's age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
9
8
0