YZXB and Minister for Home Affairs (Migration)
[2019] AATA 69
•25 January 2019
YZXB and Minister for Home Affairs (Migration) [2019] AATA 69 (25 January 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6564
Re:YZXB
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:25 January 2019
Place:Sydney
The delegate’s reviewable decision of 31 October 2018 is set aside and, in substitution, the 19 January 2016 decision to cancel the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is revoked.
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Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Class XB Subclass 202 Global Special Humanitarian visa – mandatory cancellation – failure to pass the character test – Ministerial Direction No 65 – serious criminal conviction – risk to the Australian community – risk of reoffending – minimal risk – best interests of minor children – strength nature and duration of ties – impediment if removed – Iraq – non-refoulement obligations – decision set aside
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Aciek and Minister for Home Affairs [2018] AATA 2755
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BKS18 v Minister for Home Affairs [2018] FCA 1731
DOB18 v Minister for Home Affairs [2018] FCA 1523
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Sowa v Minister for Home Affairs [2018] FCA 1999
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Uelese v Minister for Immigration [2016] FCA 348l 248 FCR 296SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, paras 6.3, 13.1.1, 13.1.2, 14.5
REASONS FOR DECISION
Senior Member M Griffin QC
25 January 2019
DECISION
By an application made on 9 November 2018, the Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 31 October 2018 not to revoke, under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act), a decision under subsection 501(3A) of the Act to cancel the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the visa).
The application for review is made in accordance with paragraph 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The issues before the Tribunal are whether the Applicant meets the character test as defined in subsection 501(6) of the Act and, if he does not, whether there is another reason why the mandatory cancellation of the visa should be revoked (subparagraph 501CA(4)(b)(ii)).
The Minister contends that the Applicant does not meet the character test, and that the correct and preferable decision is not to revoke the mandatory cancellation of the Applicant’s visa.
FACTS
Background
The Applicant is a citizen of Iraq and is 25 years old. He arrived in Australia on 18 September 2008, at age 14 years, as the holder of a Class XB Subclass 202 Global Special Humanitarian visa. The Applicant produced a table detailing relevant chronological facts. The table is reproduced below. The facts are not contentious.
Date
Event
18 September 2008
The Applicant arrives in Australia on a Class XB Subclass 202 Global Special Humanitarian Visa.
December 2012
The Applicant finishes Year 12.
11 -12 February 2013
The Applicant and the co-accused meet with the victim and the offences occurred.
7 November 2013
The Applicant is charged with four counts of Aggravated sexual assault in company. He is released on bail.
13 April 2015
The Applicant’s trial is held for 3.5 weeks in the District Court of NSW.
6 May 2015
The Applicant is found guilty of one count of Aggravated sexual assault in company by a jury.
23 October 2015
The Applicant is convicted and sentenced three years imprisonment with 18 months non-parole by Graham AJ.
19 January 2016
The Department of Home Affairs cancels the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa under subsection 501(3A) of the Act.
15 February 2016
The Applicant seeks a revocation of his mandatory visa cancellation through his legal representative Mr Samir Shiba.
2 December 2016
The Applicant serves the minimum of 18 months in gaol and then is released on parole. Due to the visa cancellation, he is detained at Villawood Detention Centre.
28 September 2017
The Applicant appeals his criminal conviction to the Court of Criminal Appeal.
29 June 2018
The appeal is unsuccessful. The Applicant seeks special leave to appeal to the High Court of Australia but does not proceed.
5 November 2018
The Applicant receives notification of a decision not to revoke the visa cancellation from the Department of Home Affairs.
9 November 2018
The Applicant lodges an appeal with the Tribunal.
The Applicant’s National Police Certificate dated 3 February 2016 reveals that on 23 October 2015, the Applicant was convicted of Aggravated sexual assault in company with other person and sentenced to imprisonment for three years with a non-parole period of 18 months.
Procedural history
On 19 January 2016, the Minister’s Department notified the Applicant that his visa had been cancelled pursuant to subsection 501(3A) of the Act (the cancellation decision).
On 11 February 2016, the Applicant submitted a request for revocation of the cancellation decision and supporting documentation. On 7 June 2016, the Department wrote to the Applicant inviting his comments on additional information. The Applicant responded by way of submissions and further documentation.
On 31 October 2018, a delegate of the Minister decided not to revoke the cancellation decision under subsection 501CA(4) of the Act. The Applicant was notified of the cancellation decision, through his legal representatives, on 5 November 2018.
On 9 November 2018, the Applicant applied to the Tribunal for review of the delegate’s decision.
ISSUES
The issue for the Tribunal to consider is whether it should exercise the power in subsection 501CA(4) in favour of revoking the mandatory cancellation of the Applicant’s visa. In addressing this issue, the Tribunal must determine:
(a)whether the Applicant passes the character test (as defined in section 501); and
(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.
EVIDENCE AND DISCUSSION
The Applicant gave evidence. Much cross-examination and stern questioning by the Tribunal centred upon the Applicant’s involvement in a sexual offence for which he was convicted. Those facts are set out in the sentencing remarks of Graham AJ. The Applicant continues to dispute his involvement in the offence but claims to “accept the decision of the Court”.
Despite being given two opportunities during the course of the hearing, to “reconsider” his evidence, the Applicant steadfastly refused to do so, giving what can only be described as ludicrous explanations for his presence during the commission of the offence and his non-involvement in it. He maintained his position obdurately.
The acceptance and recognition of wrongdoing is the first step to a satisfactory rehabilitation according to the evidence of the psychologist Mr Tim Watson-Munro who assessed the Applicant in a contemporary report. The Tribunal accepts this as an appropriate statement of principle.
The Applicant did not accept criminal responsibility when originally interviewed for the pre-sentence report prepared in 2015. It would seem, in fact, that the Applicant’s attitude to his offending has remained unchanged.
That is, however, entirely contrary to the evidence given by Mr Watson-Munro who said that he was “surprised” that the Applicant had assumed that position. This was, he said, in effect contrary to the Applicant’s expressions of remorse and acceptance of responsibility made recently by the Applicant to Mr Watson-Munro. Furthermore, the psychologist gave illustrations that did, in the Tribunal’s view, suggest acceptance of responsibility by the Applicant when speaking to Mr Watson-Munro. These recounted statements included not only remorse but also some limited empathy for the victim.
The Tribunal concludes that although the remorse was largely self-referenced, there was nonetheless an ingredient of appropriate remorse for his actions. The Tribunal has concluded this apparent inconsistency in the Applicant’s expressed acceptance and/or rejection of responsibility may be satisfactorily reconciled.
The Tribunal takes the view that, as a matter of common experience both in Courts and Tribunals, psychiatrists and psychologists who are trained in assessing and distilling the truth of what is said to them by subjects are trained in doing so for the very purpose of distilling the truth.
Mr Watson-Munro, it may be accepted, is a very experienced psychologist. He was surprised and almost disbelieving when informed of the evidence that the Applicant had given concerning criminal responsibility.
The Tribunal is not of the view that the Applicant in any way deceived the psychologist. Rather, it appears to the Tribunal that although genuinely remorseful for his involvement in the offence, for whatever reason, the Applicant is unable to publicly accept and publicly acknowledge and speak words consistent with guilt. This was the same stance referred to earlier that the Applicant adopted with the original report writer who prepared the pre-sentence report. The Tribunal is prepared to accept, therefore, the substance of Mr Watson-Munro’s report. The Tribunal further accepts and places weight upon the pre-sentence report, the writer of which opines that the Applicant was at the time of reporting (2015), a moderate to low risk of reoffending.
The Tribunal accepts Mr Watson-Munro’s evidence that with the effluxion of time, together with the evidence, and by inference what may be accepted as good conduct while in custody and immigration detention, the Applicant should now be regarded as posing an even lower risk of reoffending.
Furthermore, the Tribunal concludes that detention both in custody and in immigration detention is likely productive of a “hothouse” environment where dangerous, violent or even merely bad conduct, by virtue of that environment, will naturally be exhibited by those prone to or disposed to that type of behaviour which would likely impact adversely on the Australian public. No such behaviour was detected in the Applicant in a custodial or detention setting where such behaviour would have been the subject of formal record.
The Respondent accepts, as does the Tribunal, that it is permissible therefore to infer good behaviour on the part of the Applicant since commencing his term of custody in 2015. The Tribunal does so.
Further, the Tribunal accepts that the Applicant has a low risk of reoffending in the future. On this point, the Tribunal has regard to the fact that the Applicant, now 25, has committed only one offence, albeit a serious sexual offence.
The Tribunal also takes into account, in the Applicant’s favour, that the factual circumstances of the offence were unusual to say the least and that the victim originally accompanied the Applicant willingly; and that the offence itself was not attended by threats, violence, or consumption of alcohol. The sentence imposed itself speaks of a level of offending towards the lower end of the scale of seriousness.
Evidence was given by the Applicant’s mother and his younger brother, who will be 18 years of age in December 2019. They both gave evidence that they will be deeply distressed should the Applicant be returned to Iran.
Mr John Khamas gave evidence that he would provide employment for the Applicant should the Applicant be free to take up that offer.
These evidentiary matters referred to above, and the relevant conclusions reached by the Tribunal are matters which inform some of the considerations discussed below.
LAW
Legislation
Mandatory cancellation of visa under subsection 501(3A) of the Act
Under subsection 501(3A) of the Act, a decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that, relevantly:
(a)the person does not pass the character test because of the operation of paragraph 501(6)(a), on the basis of paragraph 501(7)(c); 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: paragraph 501(3A)(b).
The character test
The character test is defined in subsection 501(6) of the Act. Relevantly, a person will not pass the character test if they have a “substantial criminal record”: paragraph 501(6)(a). The phrase “substantial criminal record” is defined in subsection 501(7), and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
Power to revoke cancellation decision
When a visa is mandatorily cancelled pursuant to subsection 501(3A), the Minister must give the person concerned notice of the decision by written notice which sets out the original decision (subparagraph 501CA(3)(a)(i)), and particulars of the relevant information (subparagraph 501CA(3)(a)(ii)), and invite the person to make representations to the Minister in relation to the revocation of the original decision (paragraph 501CA(3)(b)).
Pursuant to subsection 501CA(4), the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation: paragraph 501CA(4)(a); and
(b)the Minister is satisfied that:
(i)the person passes the section 501 character test: subparagraph 501CA(4)(b)(i); or
(ii)there is another reason why the original decision should be revoked: subparagraph 501CA(4)(b)(ii).
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the cancellation.
A determination under subsection 501CA(4) must be carried out in accordance with any written directions under the Act: subsection 499(2A). In considering a request for revocation of a mandatory subsection 501(3A) cancellation, the decision-maker must comply with Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 65).
Direction 65
Direction 65 provides that the decision is to be approached within the framework of the principles in paragraph 6.3 of Direction 65 (the Principles).
Informed by the Principles, the decision-maker must take into account the primary considerations in Part C of Direction 65 in deciding whether to revoke a mandatory cancellation. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also take into account other considerations insofar as they are relevant. These include but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed from Australia.
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63]. On the facts of this matter that the Applicant fails the character test in paragraph 501(6)(a) of the Act.
By virtue of the Applicant’s conviction of Aggravated sexual assault in company in October 2015, for which he was sentenced to a term of imprisonment of three years, the Applicant has a “substantial criminal record” (as defined by subsection 501(7)) on the basis of his sentence to a term of imprisonment of 12 months or more.
Accordingly, the issue is whether there is another reason why the original decision should be revoked. Below, this issue is addressed by reference to the factors set out in Part C of Direction 65.
The protection of the Australian community
This factor involves a consideration of:
(a)the nature and seriousness of the Applicant’s conduct to date; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
Paragraph 13.1.1 of Direction 65 sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant’s criminal offending or other serious conduct.
The Applicant’s offending involved a sexual crime and is accordingly identified by Direction 65 as serious (paragraph 13.1.1(a)). The Tribunal regards the Applicant’s offending as serious.
The facts and circumstances of the Applicant’s offending are not essentially in dispute. The sentencing remarks reveal that the Applicant was charged as a participant in a joint criminal enterprise, involving sexual intercourse with the victim without her consent.
The Applicant, his cousin the co-offender, and the victim went to a motel where the Applicant and the victim had consensual sexual intercourse. The co-offender physically forced himself on the victim, in the presence of the Applicant, and had non-consensual sexual intercourse with the victim. The sentencing remarks also reveal that during the sexual assault, the Applicant told the co-offender “Don’t wear [a condom], it feels better without one. She’s on the pill, so don’t worry about it...” When the victim asked the Applicant to make the co-offender stop, the Applicant laughed and said “don’t worry...you’ll like it.”
Whilst the primary perpetrator of the sexual assault was the co-offender, the Court accepted that the Applicant was in a position to control or dissuade the co-offender from the commission of the assault, and played a leading, dominant role in the events of the evening. The Tribunal is content and independently satisfied to accept this description of the role the Applicant played. Furthermore, it is properly descriptive of his criminal responsibility.
The Court further accepted that the Applicant’s decision not to intervene was a voluntary decision, not made by virtue of any fear or deference to the co-offender. The Tribunal likewise accepts this statement.
The matter proceeded to trial and by virtue of the finding of guilt, the jury impliedly accepted that the Applicant knew what was occurring and the Applicant and co-offender were in an agreement of some sort to commit the crime.
The Court’s sentence of imprisonment for three years is a reflection of the objective seriousness of the offence (paragraph 13.1.1(c)); however, in the Tribunal’s view, it is at the lower end of the scale of seriousness for offences of this type.
Risk to the Australian community
Paragraph 13.1.2 of Direction 65 prescribes that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The nature of the harm of this type of sexual offending deliberately perpetrated upon a vulnerable victim if the Applicant were to reoffend in the future is particularly serious.
As to the risk of reoffending, the sentencing judge considered that the Applicant had a moderate to low risk of reoffending based upon a pre-sentence report provided to the Court (referred to above).
Having regard to the guidance in paragraphs 13.1.2(1) and (2) of Direction 65, the Tribunal considers that the protection of the Australian community is of primary importance. However, as discussed above, the Tribunal concludes that at this time, the Applicant is of minimal risk of committing any offence and the relevant risk is, at most, minimal.
Best interests of minor children
Direction 65 sets out a number of factors to be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions.
The Applicant does not have any minor children.
The Applicant’s brother, RK, is 17 years old. The Applicant submits that he is a “father figure” to his brother in circumstances where their father was murdered in Iraq. The Applicant’s brother has provided a statement which suggests that he is distressed at the prospect of the Applicant’s removal from Australia. The Tribunal finds that insofar as this consideration weighs in favour of revocation due to the impact on the Applicant’s brother, it should be given limited weight because the brother has almost reached adulthood and the Applicant’s relationship to his brother is not paternal.
Expectations of the Australian community
This primary consideration prima facie weighs against revocation. The Tribunal must consider the principle that the Australian community would expect the government to cancel the visas of non-citizens who commit crimes in Australia. Accordingly, in the case of an Applicant who has committed a serious offence, this consideration will always be adverse to the Applicant. As stated by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [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.
This consideration weighs against the Applicant given the nature of the Applicant’s offending. Paragraph 13.3(1) of Direction 65 states that non-revocation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. The weight of this consideration against the Applicant is alleviated somewhat having regard to the offender’s age at the time of offending and lack of any other criminal convictions.
Other considerations
The considerations of the impact on Australian business interests and victims are not relevant in this matter. There is no evidence as to the impact of the decision not to revoke on the victim.
International non-refoulement obligations
The Applicant submits that he cannot return to Iraq as a member of the Sabian Mandaean faith, a minority sect that has been the target of persecution. The Applicant refers to the murder of his father, which he claims to have witnessed; and his evidence that he was kidnapped on three occasions as a child.
The Applicant was granted an offshore humanitarian visa as a dependent Applicant, and has not been assessed against the primary criteria for the grant of the visa. Nor has he ever applied for or been granted a protection visa.
In the circumstances, it is open to the Applicant to make an application for a protection visa, which would then compel the Minister’s Department to assess and determine his non-refoulement claims.
The decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, requires the Tribunal to turn its mind to the Applicant’s claims to fear harm if he were returned to Iraq. However, that obligation does not compel the Tribunal to make a determination on whether non-refoulement obligations are owed (see Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28], [34]; Greene v Assistant Minister for Home Affairs [2018] FCA 919 at [14]; Turay v Assistant Minister for Home Affairs [2018] FCA 1487 at [40]-[41]; DOB18 v Minister for Home Affairs [2018] FCA 1523 at [25] - [27] ; BKS18 v Minister for Home Affairs [2018] FCA 1731 at [101] - [102]; and Sowa v Minister for Home Affairs [2018] FCA 1999 at [27]).
Adopting the approach in Aciek and Minister for Home Affairs [2018] AATA 2755, the Tribunal concludes that it is appropriate for the determination of the Applicant’s non-refoulement claims to be made in response to any protection visa application made by him.
The Tribunal recognises the Applicant’s claimed risk of harm in Iraq. This consideration however does not, in the Tribunal’s opinion, carry any weight in the Applicant’s favour.
Strength, nature and duration of ties to Australia – impact on family members
The Applicant arrived in Australia as a teenager and has lived here for the past 10 years. The Applicant’s mother and brother have both provided statements in support of the Applicant. However, the Applicant has not undertaken any caring or financial responsibilities since his incarceration in 2015. Whilst the Applicant’s return to Iraq would involve a physical separation from his family members, there is no evidence before the Tribunal to suggest that the Applicant would be unable to maintain contact with his family via alternative means, including electronic communication.
The Tribunal accepts that this consideration weighs in favour of revocation, although it should be given limited weight.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 provides that the extent of any impediments to an Applicant establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. There is no evidence that as a citizen of Iraq, the Applicant would be denied access to the social, welfare, and medical services available to other Iraqi citizens.
Whilst the Applicant may face difficulties in re-establishing himself in Iraq, there is no evidence that any hardship would be insurmountable.
CONCLUSION
The primary consideration of the protection of the Australian community ultimately weighs in the Applicant’s favour. The Tribunal considers, as discussed above, that the Applicant is at minimal risk of reoffending or committing other offences. The Tribunal determines this consideration as the most important consideration, taking into account all considerations.
The correct and preferable decision, therefore, is to quash the decision under review and reinstate the Applicant’s visa.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
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Associate
Dated: 25 January 2019
Date of hearing: 21 January 2019 Solicitors for the Applicant: Marta Mamarot, South West Migration and Legal Services Solicitors for the Respondent: Sparke Helmore
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