YNQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 881

YNQY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 881 (14 April 2021)

Division:GENERAL DIVISION

File Number(s):      2016/3573

Re:YNQY

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:14 April 2021

Place:Sydney

The Tribunal decides that the decision under review is set aside and that in substitution, the cancellation of the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is revoked.

....................................[sgd]....................................

Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – where offending was committed when applicant was 18 years of age – where applicant had traumatic past – Direction No. 79 considered – primary considerations – protection of the Australian community – where applicant was not released on parole due to cancellation of visa – where applicant was transferred to higher security prison due to cancellation of visa – where applicant has matured over time – where risk of recidivism low – best interests of minor children – other considerations – whether international non-refoulment obligations exist – whether applicant would face harm if sent to Sudan or South Sudan – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 197C

CASES

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

14 April 2021

1. I gratefully adopt as the introduction to these reasons the first paragraph of the reasons for judgment of Mortimer J in the first of two Federal Court judgments given on appeal from this Tribunal this matter.

2. Justice Mortimer in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 said at [1]:

   The circumstances and background of the applicant, and the way in which he comes to find himself in the place he does, are testament to the difficulties which may be encountered by people arriving in Australia from war-torn and crisis-laden regions as very young people, then having to adjust to a very different way of life in Australia. I make that observation at the start of these reasons, not because those considerations affect the Court’s resolution of the legal questions before it, but rather because it is important to remember that sitting behind a proceeding such as this are human beings whose lives have become full of tragedy. That applies not only to the applicant and his family, but to those people affected by the applicant’s crimes in Australia.

3. The applicant was born in Khartoum, Sudan in September 1992. He is now 29 years old. He is a Dinka and a Christian. The applicant’s parents fled South Sudan to Sudan during the civil war before the applicant was born. In 2003, when the applicant was aged about 11, the family fled Sudan to Egypt before immigrating to Australia lawfully.

4. The applicant said that from a very young age his culture had indoctrinated in him and his peers with hostility, aggression and violence. Fear, retribution and violence were a part of his childhood. Traumatic events in both Sudan and Egypt, including sexual assault on him in Egypt, left him psychologically unprepared for a peaceful life here. He has been diagnosed with post-traumatic stress disorder and has chronic hepatitis B. He takes medication for both conditions.

5. He attended school in Australia and as the only African student, he was bullied. He left school in Year 11.

6. At age 18, he was the oldest member of a gang of youths who went on a spree of violent crimes. It is described as follows by the respondent in their Statement of Facts, Issues and Contentions (RSFIC) at [4]:

   Over a period of 22 days in mid-2011, the Applicant engaged in “very serious offending”, in the company of other young males, culminating in the Applicant being convicted of fifteen charges. The Applicant, then aged 18, was the eldest member of the offenders. The circumstances of the offending were summarised in the Summary of Prosecution Opening. The Minister notes the following matters in relation to the Applicant’s offending:

   On 12 June 2011, the victim, [redacted], was taking out his rubbish bin at approximately 5:45pm. He was confronted by six or seven men, including the Applicant. [redacted] was “punched and kicked…numerous times to the face, head, upper body, back and chest” and, while attempting to run away, was pushed over and had a bottle smashed over his head. Personal property was stolen from him. The victim reported that the men who attacked him were “laughing” and were “enjoying it”. He also thought, during the attack, that he “was going to be killed”.

   The following day, at approximately 6:35pm, the victim, [redacted], was walking along a street listening to music on his phone. He was hit on the back of the head and then punched in the face by five or six males, including the Applicant. Personal property was stolen from him. [redacted] also “thought that he was going to die”.

   On 22 June 2011, the victim, [redacted], was walking along a street at approximately 8:00pm. The Applicant, who had three other males with him, approached the victim and asked for a cigarette. He said “No”, and walked off, but then saw the Applicant running towards him. The victim defended himself but was punched “to the head a number of times” and was then “struck with a piece of wood” in the face. Aside from the piece of wood, one of the assailants also had a knife.

   On 27 June 2011, the Applicant engaged in five separate incidences of serious misconduct:

   At 2:45pm, the victim, [redacted], was walking along a street when he was approached by the Applicant and two other males. The victim was “grabbed” and there was a struggle over his phone, and he was punched two times to the mouth. One of the males told the victim to “go away and said that he had a bat and would hit the victim if he did not go”.

   Sometime after 7:30pm, the victim, [redacted], was leaving a train station and was walking along a nearby street when he was restrained around the neck from behind and the Applicant and another male then “punched him to the face approximately ten times”. The victim’s phone, iPod and money were taken. The victim was then thrown to the ground and “kicked three times around the head”.

   Later that evening, at approximately 8:45pm, the victim, [redacted], was waiting to be picked up by his wife from a train station’s carpark. He was approached by four males, including the Applicant, who demanded the victim’s phone and money. The victim stated that he feared being hurt if he did not comply.

   At about 9:15pm, the victim, [redacted], was sitting in his taxi. It was approached by five males, including the Applicant, who were holding large rocks. The victim was told to hand over his phone and “stuff”. The Applicant came to the front of the taxi, stood on the bumper bar, held a rock above his head and threatened to throw it unless the victim gave them his property. The males proceeded to damage the taxi and smash its windows with the rocks. The males “were laughing” at the time. The victim contacted police, but while he was doing so, the Applicant broke another window and attempted to enter the vehicle.

   Later that evening, the victim, [redacted], was walking along a train station platform when he was approached by the Applicant and three other males. The males attempted to snatch the victim’s iPhone. The victim then ran to his home and the males chased after him. They then damaged three cars parked outside the home with rocks and smashed their windows. The Applicant also approached the home and smashed the front window.

   On 29 June 2011, the victim, [redacted], was travelling on a train and noticed a group of four males, including the Applicant, “playing and hanging on the bars” in the same carriage. He alighted the train and was walking down a nearby street when he noticed the males were following him. One of the males approached the victim, asked him a question, and produced “a large knife”. The males stole cash and a phone. The victim ran away, but the males followed and then surrounded him. He was hit on the back, grabbed around the neck, and slashed with the knife. The victim “thought that he would be killed”.

   On 4 July 2011, the victim, [redacted], was walking along a street and was approached by a group of three males, including the Applicant. They searched through the victim’s pockets. The victim tried to get away, but four more males joined in. The victim then shouted “Help”, but his neck was squeezed so he could not yell. The victim fell to the ground, a jacket was placed over his face, and he was then hit and kicked to the chest, ribs and abdomen. The Applicant searched the victim’s pockets and took cash, a backpack, two phones, cigarettes and headphones.

   Later that day, at about 8:00pm, the victim, [redacted], was travelling on a train and noticed a group of seven or eight males, including the Applicant. He got off the train at 9:00pm and was followed by the same group of males. As he crossed a carpark, he was surrounded and his hands were restrained. The victim was then punched to the face numerous times and, when he fell to the ground, was punched and kicked to the face, head and ribs. He screamed. He was then grabbed around the neck and bodyweight was placed onto his neck so that he could not breath. He blacked out. Cash, bank cards and his driver’s license were stolen.

   At about 9:50pm that evening, police were called to a “large brawl involving approximately 300 youths”. The Applicant was found there in the possession of stolen property. On 5 July 2011, the Applicant was interviewed by police. He made a number of admissions, including that he had assaulted one victim because he was “just showing off”, robbed another “‘cos he looked rich and all that”, assaulted another because “I was excited ‘cos, like, we had new people”, that there was not any reason for assaulting a number of the victims, that one of the victims was “crying out for help” and “he wanted to shut him up”, that he had laughed at some of his victims, and that when he threw rocks at one of the victim’s homes he was “aiming for…the people” and that he “wanted to get them out so [they could] have a punch on”. Alarmingly, the Applicant admitted also that he had choked one victim because he was screaming for help, and that he had assaulted another victim for “10 to 15 minutes”.

   (Citations omitted. Names of victims redacted.)

7. The offending continued later in 2011 and is described by in the RSFIC at [6] as follows:

   Following the Applicant’s arrest for the abovementioned offences, he spent 10 days in custody before being released on bail with a 7pm curfew. While on bail, the Applicant breached that curfew and committed further violent crimes (in October 2011). He received a nine-month sentence of imprisonment for those violent offences, as well as a three month sentence of imprisonment for breaching bail.

   (Citations omitted.)

8. The applicant was sentenced to a total effective term of imprisonment of five years and ten months. That led to the mandatory cancellation of his visa in 2015. He has been in detention since his release from prison. There is no doubt that the applicant does not pass the character test because his sentence exceeded twelve months.

9. In 2016, a delegate of the Minister refused to revoke the cancellation of his visa. Following two earlier Tribunal members having affirmed that decision and each such decision being subsequently set aside on appeal, the question of revocation comes again before the Tribunal in these proceedings.

10. Direction No. 79 (the Direction) binds the Tribunal in these proceedings in that it is obligatory to have regard to the primary considerations mentioned in it, together with such other considerations as are relevant in the applicant’s circumstances, considered at the date of this Tribunal’s decision. The proper weight to be given to each consideration is a matter to be decided by the Tribunal.

11. The terms of the Direction are published, and I will not repeat their terms. The provisions of cls 13 and 14 of the Direction, considered in the light of cl 6, state the mandatory considerations.

    PRIMARY CONSIDERATIONS

    Protection of the Australian Community

12. The first primary consideration deals with the protection of the Australian community from criminal or other serious conduct. The criminal conduct of the applicant occurred ten years ago was very serious and violent.

13. The conduct was owed much to the applicant’s traumatic youth overseas, and to some extent in Australia. The sentencing judge accepted that the crimes may have owed something to his post-traumatic stress disorder. The sentence which he served was itself designed by the sentencing judge to serve the need of protection of the community, amongst other things. Alcohol affected his offending, and possibly substance abuse (marijuana). Substance abuse in prison occurred later until 2017, when the applicant embarked on a methadone program. His daily dose of methadone reached 75 mg, and over the last two years, he gradually reduced his dose to 10 mg. He was taking that dose when he gave evidence before me on 15 February 2021. He expressed a wish to reduce the dose to nil, although he has not reached that stage yet.

14. Although the sentencing judge fixed a non-parole period of three years and four months, he was not released on parole by the Victorian authorities, apparently because of the mandatory cancellation of his visa in 2015. The mandatory cancellation of his visa also led to him being removed from a low risk prison, where he took no drugs enjoyed doing landscaping and felt as though he made a contribution, to Loddon Prison, a higher risk prison, where he got into fights, was put into isolation and became disoriented, and resumed drug taking, using buprenorphine.

15. Maturation also affected his time in prison and especially in detention. He has taken a number of courses, including anger management, improved his education, studied history, and was reading privately. He has also been writing on his own, impressing others with his expression.

16. I heard from the applicant’s family members, and his girlfriend, whom he plans to marry and with whom he plans to have a family. I also received evidence from a mentor who has had extensive contact with him over the last four years, albeit by telephone during most of 2020 owing to COVID-19. I also received written evidence from torture and trauma counsellors who treated him in detention centres at the request of the International Health and Medical Services (IHMS) from January 2018.

17. As the sentencing judge noted, he had a supportive family who spoke well of him and his behaviour within the family. That is true today.

18. The applicant has come to feel much remorse about his crimes from a decade ago. He has come to understand the effects upon him of the trauma that he had suffered. He saw his best friend killed in Egypt. He was subjected to abuse on a number of occasions as a child. His mother was attacked, and he suffered guilt because of an inability to protect her. He suffers from flashbacks including of the faces of his victims from a decade ago. He has benefited from trauma and torture counselling, and from his anger management course and other courses, including passing a Year 11 maths exam.

19. Foundation House (the Victorian Foundation for Survivors of Torture) provided reports in 2019, 2020 and 2021. The reports indicated that after a time, the applicant engaged well with counselling sessions and a strong rapport was established between the applicant and the counsellor. He used his counselling sessions as a way to help him better understand his past and how he ended up in gaol and then in detention. The applicant was described as a having a long-term history of disrupted attachments, trauma and traumatic losses, as well as being a survivor of childhood sexual abuse. He had, in the detention centre, a sufficient sense of safety in order to be able to spend time reflecting on and writing about his past experiences. The counsellors confirmed the earlier diagnosis of post-traumatic stress disorder and did not expect his psychosocial functioning to improve dramatically unless or until he is released from detention and no longer faces the prospect of deportation.

20. The most recent report stated that he has impressed the counsellor with the depth of his reflection and sensitivity. The reports also made mention of the benefit he had derived from the mentor with whom he had regular contact.

21. I heard from the mentor, who is a secondary school teacher and volunteers with the Jesuit Social Services. He has mentored the applicant for nearly four years, both in gaol and since he has been in detention. The mentor would visit him at least once a month until personal visits were interrupted by the pandemic. Mentoring is intended to continue, whether or not he remains in detention. In the community, the Jesuit Social Services can assist with obtaining employment, keep him in touch with good, decent people, and assist with obtaining accommodation as required. He told me that he believes the applicant will make a positive contribution to the community, including by helping others, especially those who could go down the wrong path. He says the applicant has a mindset of making amends.

22. His family circumstances were explored in the hearing. Several years ago, his elder brother died, which was one of the catalysts for the applicant to change. He told his mother that losing his big brother made him wish to go into the community, obtain employment and take care of his mother. She said he is a changed man, determined not to offend again.

23. Two of the applicant’s siblings gave evidence, stating that they wish to have the applicant home, so they can fill the void created by his absence, and that for their part they will assist with anything the applicant needs to get him back on his feet. His sister is single mother of three children, one of whom is disabled. She said that she would look to the applicant for support with her children if he is released from detention.

24. The family relationship and their needs will strongly motivate the applicant not to reoffend.

25. His uncle also gave evidence concerning the applicant’s closeness to his family, including his cousin. He said that the applicant is very sorry for his crimes.

26. The applicant has a girlfriend who has known him for a decade. They met through playing basketball. The applicant plans to marry her and have a family with her. She is studying social work at university and has a Diploma of Community Service. They speak to each other daily for two to three hours. He has discussed his plans for the future with her. He intends to assist South Sudanese youth.

27. His girlfriend wants to finish her degree before marrying and having a child. She said that she would be able to support the applicant in the community and has arranged with colleagues to be available to assist as required.

28. I gathered that the applicant’s girlfriend is likely to encourage the applicant to further his education and is likely to be a source of useful support for him. She said that although she would wish to start living with the applicant as soon as possible, she recognised a need for him to reunite with his family after a long absence first and would wait for him to spend time with his family before cohabitating with him. That suggests to me that she will bring common sense and maturity to their relationship.

29. The Direction requires attention to be given to the consideration of protection of the Australian community, including the nature and seriousness of the wrongdoing and the risk to the community of recidivism. I have mentioned the criminal record of the applicant, including the seriousness of the violence involved, and the fact that vulnerable persons were the victims of the group of young persons of which the applicant was the eldest. I accept the applicant’s submission that the risk of recidivism if the applicant were released is low. That is so, in my opinion, because of the maturation of the applicant, the assistance he has derived from counsellors, his mentor, the love of his family and girlfriend, and the opportunity for reflection on his past which his time spent, especially in detention, has given him. He has a very strong motivation not to reoffend and is likely to have whatever support he may need to remain a law-abiding person. He has a strong desire to reunite with his family and he is fortunate to have the support and love of his girlfriend.

    Best Interests of Minor Children in Australia

1. The applicant was, even before and no doubt during the time when he was offending, a loving family member, both for his parents and siblings. He will be a positive influence and support for all minor children with whom he interacts, including his younger brother, cousins, and for his sister’s infant children if he is released. It is in the best interests of all the minor children that he be released from detention.

   Expectations of the Australian Community

2. The consideration of the expectations of the Australian community, understood as deemed expectations stated by the government, favours non-revocation of the cancellation of the applicant’s visa. As with all considerations, its weight requires to be considered by the decision-maker exercising the discretion.

   OTHER CONSIDERATIONS

3. The consideration of non-refoulement obligations has been associated with a submission made by the applicant that he will suffer personal harm if returned to Sudan or South Sudan, or if his detention, itself a source of his depression and anguish at isolation from his family and girlfriend, is prolonged.

4. As the law presently stands, the operation of s 197C of the Migration Act 1958 mandate removal to Sudan or South Sudan even if the removal puts Australia into breach of this country’s international obligations, a very serious consideration in itself. It may be that the law will change insofar as s 197C is concerned, because of the introduction into the House of Representatives of a bill to amend the provision.

5. Even if non-refoulement obligations are not owed in respect of the applicant, the passage of that bill may remove a legal impediment to the government following a policy of detaining non-citizens rather than putting Australia into breach of its international obligations.

6. Such detention may be prolonged, even indefinite, depending on future governmental policies.

7. Bringing about either a breach of international treaties or prolonged or indefinite detention would not, in the particular circumstances of this case, be consistent in my opinion with the dictates of good government. Those dictates are particularly important in the exercise of the discretion or evaluative task involved in ascertaining whether there is “another reason” why the cancellation should be revoked.

8. Moreover, even if refoulement is not involved, sending the applicant back to Sudan or South Sudan would, as is conceded by the respondent, involve harm to him. That is, he presently takes medication (both methadone as required, and medication for hepatitis B) which would likely be unavailable to him in Sudan or South Sudan, he would risk serious injury or death in tribal conflict, he may not obtain employment, has no family support in Sudan or South Sudan, and is not likely to receive any financial support from a government source. It may be added that he has previously contemplated suicide and that prospect exists if he is deported.

9. I think that there is a likelihood that non-refoulement obligations are owed in respect of the applicant. The respondent has submitted to the contrary. In my opinion, it is not necessary in the circumstances of this case to finally resolve the question of whether non-refoulement obligations are owed. If non‑refoulement obligations are not owed, the humanitarian reasons not to deport the applicant are strong enough in themselves, having regard to what has been said earlier, to justify his release.

10. Similarly, further prolonged or indefinite detention is not, in the circumstances of this case, an exercise of discretion or evaluation consistent with good administration. He has suffered mental harm as a result of his detention to date, and the causes of that mental harm may be expected to continue, absent release or the granting of some other visa by the Minister. I have no evidence of any such intention. It must also be borne in mind that when the applicant’s offending was dealt with in the criminal courts, he was given a lengthy sentence with a non-parole period which might have seen him released after three years and four months, but as a result of the mandatory cancellation of his visa, he was denied the possibility of parole. Since then, he has so far spent further years in detention.

11. The failure to release the applicant (whether by prolonging his detention or by deporting him) would cause injury not only to the applicant but also to his family and his girlfriend, who are anxiously awaiting his release at this time.

    DECISION

12. Putting together what I have written, and balancing that which favours his release against such parts of what I have explained above which may, taken alone, favour affirmation of the reviewable decision, I have decided that the correct or preferable decision is to revoke the cancellation of the applicant’s visa.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 14 April 2021

Date(s) of hearing:	15, 16 & 17 February 2021
Solicitors for the Applicant:	Ms A Battisson, Human Rights for All
Counsel for the Respondent:	Mr N Swan
Solicitors for the Respondent:	Mr N Rogers, Australian Government Solicitor