ZLYD and Minister for Home Affairs (Migration)

[2020] AATA 1737

ZLYD and Minister for Home Affairs (Migration) [2020] AATA 1737 (8 May 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0988

Re:ZLYD  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:8 May 2020

Date of written

reasons:5 June 2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant’s visa not be cancelled.

...........[sgnd].............................................................

Senior Member N A Manetta

MIGRATION- cancellation of applicant’s visa- applicant has substantial criminal record including most recently indecent assault against a woman – whether visa should be cancelled – interests of minor children and impediments on removal to Sudan- decision set aside and visa reinstated given interests of minor children, interests of partner and impediments on removal – non-refoulement obligations not decisive but also relevant

Legislation

Migration Act 1958 (Cth)

Cases

FBYR v. Minister for Home Affairs [2019] FCAFC 185
QDWQ v. Minister for Home Affairs [2019] AATA 4622
Ung v. Minister for Immigration, Migrant Services and Mutlicultural Affairs [2020] AATA 112

Secondary Materials

Direction 79- Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

5 June 2020

1.After I delivered my oral reasons, a request was made for written reasons, which I now publish. 

2.This is an application by the ZYLD seeking a review of the decision taken by the respondent’s delegate that his humanitarian visa should be cancelled.  The decision to cancel the applicant’s visa was based on the applicant’s criminal offending. The delegate decided[1] in his or her discretion to cancel the visa having first satisfied himself or herself that the jurisdictional threshold giving rise to the discretion was satisfied.  That threshold is that the applicant failed the so-called “character test” in the Migration Act 1958 (“the Act”). It was common ground before me that the applicant does in fact fail that test.

[1] Ex R1 at pp 12ff.

3.Hearing the matter afresh on the evidence before me, I must decide, therefore, whether I, too, would cancel the visa in the exercise of my discretion. I must reach that decision on the evidence adduced before me. That is, I have to exercise the statutory discretion de novo on the merits.

4.At the hearing before me the applicant represented himself; the respondent was represented by Mr Ellison. The delegate was required to apply Direction 79, which was issued under section 499 of the Act. Similarly, on my review, I must apply the direction.

STATEMENT OF CONCLUSION

5.I have decided to set aside the delegate’s decision and to substitute a decision that the applicant’s visa not to be cancelled. My reasons for this conclusion follow.

BACKGROUND FACTS

6.I first set out the background facts. In summary form they are as follows. The applicant was born on 1 January 1983 and is presently 37 years of age.  He was born in what was formerly known as Sudan, in that part of the country which now forms part of South Sudan (recognised today as an independent country).  He left Sudan at about eight years of age, together with an older brother (who was about ten years old at the time).

7.I accept the applicant’s evidence about his early life.  He said he had been forced to join a rebel militia which misused children by training them to plant bombs in Government premises. He was fortunate enough to escape.   An Anglican bishop smuggled him across the Ugandan border hidden in a car. At first, he lived with a friend of the bishop until about 1995.  In 1995 he was taken by the bishop to a refugee camp and was reunited with certain family members living in Uganda at the time, namely, an aunt and uncle together with their extended family.  He lived in the camp whilst his mother remained in Sudan. I note that his father had left the family at some earlier time.

8.Life in the camp was rudimentary. Families who settled in the camp had to clear the land with machetes and pitch tents. They were given a monthly food ration and water was supplied from the bore equipped with a pump.

9.In the refugee camp, the applicant was not safe as looters would attack the camp from time to time. Nevertheless, he worked hard to improve himself and to obtain as good an education as he could. He won a scholarship to secondary school and in his final years of school attended a Catholic College.

10.During his final year of schooling, he applied to emigrate to Australia. He and his brother filled out forms distributed by the UNHCR. He believed he had no family left in Sudan at that time and that the political situation there was getting worse. He had heard nothing of his mother and had assumed she had lost her life in the civil unrest. He is not aware of any other family members remaining in Sudan. In June 2004 the applicant arrived in Brisbane on an “XB 202” special humanitarian visa. He arrived alone as his brother had opted to emigrate to Canada.

11.At first, he boarded with a close family member who was already living in Brisbane. He found a job quickly in a local meatworks. He wanted the position, which was casual at the time, to become permanent but unfortunately, he lost his job when he was laid off after sustaining an injury whilst playing sports in the community.

12.The applicant attended TAFE. He enrolled in a Certificate IV in business administration at the Southbank campus. He did not finish the course, however. He found odd jobs in aged care and as a labourer for some four months. He did some volunteering for the Salvation Army at this time.

13.At around this time the applicant became HIV-positive following a casual sexual liaison with a female acquaintance who he said he did not realise was a prostitute. On account of the diagnosis, he began to drink heavily in about 2005/2006. He accepts that he harboured a great deal of anger at this time. In this period, he began to commit a number of offences.

14.I turn now to describe some, but not all, of the offences, which are set out in the “G documents” that were tendered.[2]  I have had regard to all the offending, however. 

[2] Ex R1, pp 24ff.

15.The first offence involved the commission of a public nuisance. The applicant ripped a tarpaulin after an argument with some street workers. He was fined $1000 on this occasion. The second offence, dating from 2005, involved his failure to disclose his HIV-positive status to a sexual partner. He pleaded guilty, and no conviction was recorded on that occasion. In 2006 he was convicted of six charges of recklessly putting someone at risk of infection by failing to disclose his HIV-positive status. He was sentenced on that occasion to 12 months’ imprisonment on each charge (to be served concurrently).  After serving four months, the sentence was to be suspended for two years. There are assault charges that were laid against him in 2006 as well as an attempted burglary offence.  On this occasion he was drunk and tried to open a house window when trespassing on land. He was convicted in 2008 of common assault against a taxi driver who had taunted him.  He also has a conviction of assault while threatening a minor with a knife.  That is a serious matter.

16.Eventually, he and his partner decided to leave Queensland. The local African community in Brisbane had apparently found out about the applicant’s HIV-positive status and he found himself unfairly stigmatised.  He and his partner moved to Adelaide. The applicant’s partner pursued her preferred course in Criminology online through Griffiths University. At this stage the applicant became involved with Relationships Australia and Positive Life SA. The applicant decided to study a human resources management degree through the University of South Australia. He began this degree in 2010. He found the first year challenging and failed three of his subjects. In 2012 he went part-time and obtained a position as a trainee finance administrator. This job inspired him to press on with his degree.

17.Unfortunately, he and his partner separated in 2013.  His partner had found a job as a parole officer and she left him. He began to drink again.

18.In about 2014 the applicant met a new partner, Ms H. She fell pregnant, but in fact the child, T, was the result of sexual relations she had continued to have with her former partner.  Nevertheless, the applicant raised the child as if the baby were his own.  In 2018 a daughter, N, was born.  The applicant is the biological father of this child.

19.In 2016 a serious offence occurred. I note here that there had not been any offending since the applicant’s departure from Queensland apart from a minor offence in 2017 for which he was fined $200.  The gap between the departure from Queensland and the indecent assault in SA is some six or so years.

INDECENT ASSUALT

20.In 2016, the applicant committed an indecent assault. He gave evidence before me that he had got on a bus whilst drunk to go to the University of SA’s City West campus to meet a student who needed assistance with his work. The sentencing remarks[3] record that he was intoxicated and that he approached a young woman who was using the library and rubbed her outer thigh through her clothing on two separate occasions.  He said to her on the second occasion that he wished “to impregnate” her.  He said before me that he has no recollection of saying to her that he wished to “impregnate her”.

[3] Ex R1, pp 41ff.

21.This led to a charge of indecent assault, of which he was convicted. He was sentenced to two months’ imprisonment.  There is also, apparently, a charge pending in the Elizabeth Magistrates Court, but that has yet to be tried and I say nothing further about it.

APPLICANT’S RELATIONSHIP WITH HIS PRESENT PARTNER

22.It is clear that the applicant’s relationship with Ms H is problematic. The evidence before me suggests that the relationship has been marred in a number of ways. First, the applicant has misused alcohol frequently.  Ms H has also misused substances- the evidence before me suggests marijuana.

23.There have been occasions when the police have attended the household. It is clear, according to the police records that were in evidence before me,[4] that on some occasions violence has been directed by the applicant to his partner and sometimes vice versa.[5] The applicant’s partner’s mother, Ms N, gave evidence before me. She indicated that her daughter had “a short fuse”.  She also indicated that her daughter had suffered from abuse as a child and presently had psychological difficulties.

[4] In Ex R2.

[5] See for example report at Ex R2, p 203.

24.In addition, there was evidence given by Mr G, a social worker from Centercare Catholic Family Services, who indicated that he had heard the applicant’s partner swearing in the background when the applicant was on the telephone with him. He described the applicant’s relationship with his partner as “toxic”. 

25.All that said, however, the applicant has treated his partner on some occasions with violence, and I am conscious of the physical imbalance in this case between the applicant, as a man, and his partner, as a woman.

RE-EXERCISING THE DISCRETION

26.The delegate placed great emphasis upon the fact that the applicant posed an unacceptable risk of harm to the Australian community. This is made clear at paragraphs [85] and [87] of the decision.[6]

[6] Ex R1, p.21.

27.In considering the matter afresh I must, like the delegate, apply Direction 79. In QDWQv. Minister for Home Affairs (Migration)[7] I summarised parts of Direction 79 and I refer to that summary without reading it out verbatim in these oral reasons.  I would also refer, without setting it out verbatim, to the summary I made of the matter in Ung v. Minister for Immigration, Migrant Services and Mutlicultural Affairs.[8]

[7] [2019] AATA 4622 at [154] to [157]. I note QDWQ concerned Part C of the Direction, but it is identical to part A in this regard.

[8] [2020] AATA 112. Again, this case concerned Part C of the Direction.

28.Under Part A of the Direction, I must consider the protection of the Australian community and the nature and seriousness of the non-citizen’s conduct to date.

29.The Direction makes it clear that without limiting the range of offences that may be considered serious, violent crimes are viewed very seriously.[9] The applicant has been violent in threatening a child in the past, and irrespective of the sentence imposed I must take that very seriously.  I do so.  I also consider the applicant’s failure to disclosing his HIV-positive status to his sexual partners as a type of sexual crime since the consent to the sexual act was not given on a fully informed basis. Sexual crimes are viewed very seriously under the Direction.[10]  I accept, therefore, that in the early years of his presence in Australia, the applicant was guilty of very serious crimes.

[9] Para 9.1.1(1)(a) and (b).

[10] Para 9.1.1(1)(a).

30.I also regard the more recent indecent assault as a sexual crime since it involved an unwanted touching of the victim’s body coupled with unwanted sexual advances.  It must be regarded very seriously.

31.I must also have regard to the frequency of offending and whether there is any trend of increasing seriousness.[11] There is now a long criminal record, but I note there was a significant gap of some years during which the applicant was of good behaviour. The most recent offence does not signify a trend of increasing seriousness as such, but it does represent a very serious lapse. I think that when one looks at the applicant’s entire criminal history, it can be said that his persistent and anti-social offending has had a cumulatively negative effect in the community.[12]

[11] Para 9.1.1(1)(g).

[12] Para 9.1.1(1)(h).

32.I have dealt only so far with conduct that has resulted in charges. The respondent pressed me with a submission that the domestic violence that has been a feature of the applicant’s relationship with his partner should be taken into account.  I accept that on some occasions physical injuries were inflicted by the applicant; but I also accept that the applicant’s partner has contributed to the domestic disharmony through her own behaviour and occasionally violent acts.   That said, however, there is no doubt in my mind that the applicant has contributed substantially to the disturbances in the household.

33.One question that immediately arises is why the applicant did not decide to leave the household permanently given the domestic disharmony. Here I believe some credit must be given to the applicant for persisting in what was undoubtedly a difficult relationship from both parties’ perspectives because of his commitment to make a positive contribution to the upbringing of T (of whom I note he was not the biological father) and of his daughter N.

34.Evidence before the Tribunal from his partner’s mother indicated that the applicant had taken a leading role in the care of N in the year following her birth because Ms H was unable to look after the child, due to a physical injury.[13] In my opinion, he remains committed to making a positive contribution to the upbringing of these two children. Whereas many men might have decided to leave a strained household permanently and strike out afresh while still young, leaving their responsibilities behind, the applicant decided to remain in the household.

[13] The evidence was supported by Dr S’ evidence that she had seen the Applicant with N changing nappies.

35.I must also take into account the risk to the Australian community should the applicant commit further offences or engage in other serious misconduct.[14] In this regard I note that alcohol has lain at the root of many of the applicant’s criminal offences.[15] That is true also of the indecent assault committed in the University library.

[14] Paragraph 9.1.2 of the Direction.

[15] As was noted by the sentencing Magistrate in the most recent sexual assault conviction: Exhibit R1, p. 42 at [7].

36.I accept that the applicant has had a considerable period of time now in detention where he has not drunk; but it seems to me that the critical aspect of his problem in this regard has not been a physical addiction as such, but a habit to which he periodically reverts and which will require professional help in order for a relapse to be avoided.  Given my conclusion that his partner is not likely to be of much help and given his past history, I conclude there is a serious risk that  the applicant will lapse into poor drinking habits again and that these will lead to criminal offences. I regard this risk as a serious one.

37.I note that for many years after his move from Queensland to South Australia, the applicant did not have any criminal offences charged against him.  This counts in his favour and demonstrates positively that he is capable of personal reform.  Nevertheless, the most recent offending represents a serious lapse, as I have said, and the fact that alcohol was involved seems to me to be a serious aggravating factor because it indicates, once again, a return to old habits and anti-social behaviour that has harmed the community in the past.

38.In addition, I must say that I was not impressed by the applicant’s belated admission in his evidence to me that his behaviour in the library was accurately reflected in the Court’s sentencing remarks. It seemed to me that he only belatedly accepted the truth of the accusations made by the student against him. He does appear, therefore, to lack insight into his behaviour, which is of concern.

39.The applicant readily asked me to consider his troubled background as a contributing factor to his offending but it seems to me that first feature of the offending that he needed to accept before me was that his victims have not deserved the harm inflicted upon them.  The applicant needed to plainly acknowledge that fact before asking me to see as a mitigating factor the undoubted difficulties he has suffered in his life including the acquisition of an HIV-positive status. I do not doubt, therefore, that the applicant does pose a risk to the Australian community in respect of further criminal offending.

40.Before considering the best interests of minor children in Australia, I turned to consider expectations of the Australian community. As is made clear in recent full Federal Court authority,[16] I am not to evaluate these for myself but rather I should regard the direction as encapsulating the proposition that the Australian community has limited tolerance for future harm and that the Australian community expects compliance with its laws.  I think that this factor counts against the applicant.

[16] FBYR v. Minister for Home Affairs [2019] FCAFC 185.

41.So far as the interests of minors are concerned, I believe that the applicant has established himself as a positive father figure in relation to T, and I believe he has a close bond to N, although she is very young. I believe their interests are served by his remaining a parental figure in their lives. This view of the matter is shared by Ms N, his partner’s mother.

42.I also believe the children may well be at some risk from their mother’s poor choices, and the applicant may protect them from those poor choices. I accept on the evidence before me that Ms H became involved with a man known as “W” who was supplying her with marijuana and who then sought to introduce her to harder and more addictive drugs. On the evidence before me, I believe that they had become sexually involved with one another.  (In this regard, I accept the applicant’s evidence and reject Ms H’s evidence that he was a friend who stayed the night sleeping in the living room.)  I accept also that Ms H has serious emotional/psychological issues and that the applicant has had to provide substantial assistance when his partner was physically unwell.  I also believe that Ms N is not able to contribute as much as she might think she can to the upbringing of the children as she is frequently away, working in a resort outside the city. In all the circumstances, I attach significant weight to the best interests of the children not only because of the appropriate role that the applicant could play in their lives but because of the intermittently inadequate role their mother plays.

43.I say expressly that in all of this I have not overlooked the fact that violence and alcohol abuse cannot be said be an appropriate environment in which children will thrive. I have considered whether it might not be in the children’s long-term interests for the relationship to end and for the applicant to leave Australia. It occurred to me that it might be better if the children no longer witnessed what must be very disturbing scenes between mother and father. Notwithstanding that factor, I believe there is a strong interest in these children continuing to have the applicant as a strong male role model in the house in circumstances where the applicant’s partner has shown herself willing to bring men into the household who were inappropriate partners for her and thereby expose the children to far worse than the scenes of domestic disharmony that they have no doubt witnessed too often between their parents.

44.I have been fortified in this view by the evidence of Ms N who believes that the relationship was overall an appropriate one for the children. I do not believe she would have given that evidence if she entertained the belief that the applicant was a danger to the children.  On my review of the evidence, he is not a danger to the children.

45.I must take into account the other considerations that are listed in the direction which include five matters in a non-exhaustive list.[17]  I accept that these matters are generally to be given less weight than the primary considerations.

[17] Paragraph 10 of the Direction

46.I would leave to one side for the moment non-refoulement obligations.  I do not regard these as decisive in this case.  But I would say here that I do intend to follow and repeat what I put in relation to this issue in QDWQ.

47.I must have regard to the strength, nature and duration of ties. I believe in this regard that I should have regard to the fact that the applicant’s partner expressed very clearly to me her attachment to the applicant. I do not regard her evidence in this regard as balanced, however. I felt that she was saying whatever she thought necessary to secure his presence in Australia.  Nevertheless, I do not doubt that she continues to love him and I also believe she rightly appreciates the contribution he has made to their family life.

48.The applicant’s partner has many problems, and I think she is largely dependent upon him. It may be that their relationship would be best re-nurtured not by the applicant’s immediate re-entry into the household, but rather by his living apart and visiting the family from time to time to begin with.  I believe this would be the most appropriate way to reintegrate him.

49.For the purposes of applying the direction, I do believe I should take into account the legitimate interest the applicant’s partner has in securing his future ongoing support and maintaining an important relationship.

50.There is nothing I need say about the impact on Australian business interests.

51.There is nothing I can say about the impact on victims. There was no evidence put to me about the effect of the applicant’s remaining in Australia on the unfortunate victim of the indecent assault. I attach no weight one way or the other to this factor.

52.In respect of impediments the applicant would face on removal, I would note that the applicant is HIV-positive. He is taking a medication that ensures that his “viral load”, as it is described, is kept at a minimal level. I accept that his access to medical supervision and healthcare may be problematic in South Sudan, as was fairly put to me by Mr Ellison.[18] I think this is a very important feature of this case. It is important to bear in mind that it is a very serious matter to deport to South Sudan, the only country on the evidence before me that can receive the applicant, a person who requires ongoing medical supervision in relation to an incurable condition. 

[18] See Exhibit R2 at p.585.

53.I believe also the applicant will suffer a degree of discrimination on account of his HIV-positive status and that this discrimination, whilst it exists in Australia, is likely to be stronger in South Sudan and therefore to affect him proportionately more.[19]

[19] See Exhibit R2 at p.574, for example.

54.I also accept a limited risk to the applicant’s personal safety. I accept that he may be known as a person who left the militia during the civil war and may therefore suffer on that account. The evidence before me in this regard is not however very strong. I accept that there is a risk to the applicant, but I do not attach particular significance to it in the circumstances of this case in the absence of that evidence.

55.I now turn to consider the non-refoulement obligations. I would note, however, that my ultimate conclusion in this case has been reached independently of this factor.

56.In my opinion, non-refoulement obligations are owed to the applicant in respect of the harm that he may well suffer as a person who is HIV-positive.  This was conceded by Mr Ellison before me.

57.Mr Ellison submitted that I need not consider non-refoulement obligations because the applicant was eligible to apply for a protection visa. I refer however to my analysis of this issue in the case of QDWQ.  I remain of the view that I am required to have regard to international non-refoulement obligations under the Direction unless I am satisfied that the applicant can make a “valid application” for another visa. The only visa for which I believe the applicant can make an application is a protection visa. If, however, any application for a protection visa is bound to fail because the applicant is properly assessed to be a danger to the Australian community under section 36(1C) of the Act, he is not able, in my opinion, to make a valid application for that visa and I remain obliged by the Direction to consider the non-refoulement obligations.

58.Mr Ellison drew a distinction between a finding that a person is “a risk” to the community and one that he or she is “a danger” to the community. It seems to me, however, that if the delegate in this case concluded, as he or she undoubtedly did, that the applicant poses a high risk of re-offending, the applicant would also be assessed to be a danger to the Australian community in the delegate’s view. For my own part, I believe that the applicant is presently a danger to the Australian community. The applicant has not yet overcome his drinking problems and there is a serious risk of his reoffending.

59.The most recent offending was serious, and not trivial, in so far as it involved an indecent assault.  Moreover, the applicant’s low viral load is the result of his faithfully taking his medication and this adherence is diminished when he drinks regularly. Were the applicant to entice a woman to have sexual relations with him, without disclosing his status, which has been a feature of his past offending, he would represent a danger to that person.

60.On the evidence before me, I believe the applicant cannot make a valid application for a protection visa as he is a danger to the Australian community and fails the test in section 36(1C). Therefore, my obligation to consider non-refoulement obligations remains.

61.I do not wish to repeat here in the course of these oral reasons my analysis of the matter that I put in QDWQ. I do accept that my analysis did not find favour with the presiding Deputy President in that case but I believe that the issue has yet to receive a binding ruling from the Federal Court. I believe I am entitled to follow what I put in QDWQ while expressing my complete respect for the position expressed by the  Deputy President. 

62.In the circumstances, as in QDWQ itself, I do not believe that this factor is determinative of this case; but it is a further reason for me to decide in the applicant’s favour.

CONCLUSION

63.All in all, I have decided that the interests of the minor children, a primary consideration, coupled with Ms H’s interests and the impediments on removal the applicant would face in South Sudan outweigh the admittedly strong primary considerations of the risk he poses to the Australian community and of the community’s expectations.  It is a finely balanced decision, but I believe the balance favours reinstating the visa.  If I add in the non-refoulement obligations, the answer becomes even clearer.

64.It is obvious that the applicant is an intelligent man. There is no doubt there is a serious imbalance in his life caused by alcohol abuse, and he has engaged in highly anti-social behaviour. The applicant could contribute much to the community if he grasps the opportunity.

65.He has not done so to date and there has been limited insight on the applicant’s part into the unfortunate repercussions of his behaviour on others. There is at the present time only a limited acceptance by him of his need to accept once and for all the misfortunes of what has happened to him both as a child and then as a young adult who contracted HIV and to move on from those experiences. My decision gives him an opportunity- perhaps a final one- to plot a way forward in which he can show himself to be a responsible father to two children and a supportive partner to Ms H.    I believe the applicant needs now to reflect carefully going forward, and I encourage him to do so.

66.For the reasons I have given I shall make the orders that I indicated at the commencement of these reasons.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta.  

.........[sgnd].....................................................

Administrative Assistant Legal

Dated: 5 June 2020

Date of hearing:	6, 7 & 8 May 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr Ellison, Minister for Home Affairs