ZMBZ and Minister for Immigration and Border Protection (Migration)
[2018] AATA 1869
•27 June 2018
ZMBZ and Minister for Immigration and Border Protection (Migration) [2018] AATA 1869 (27 June 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1781
Re:ZMBZ
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal:Senior Member Antoinette Younes
Date:27 June 2018
Place:Sydney
The Tribunal affirms the decision to refuse to grant the applicant a Safe Haven Enterprise (Class XE) Visa.
............................[sgd]............................................
Senior Member Antoinette Younes
Catchwords
MIGRATION – protection visa – failure to pass character test – non-refoulement obligations owed to applicant - Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – expectations of Australian community – impact on victim – decision to refuse to grant the applicant a Safe Haven Enterprise Visa affirmed
Legislation
Migration Act 1958 (Cth) ss 5H(1), 36(2A), 46(2), 48B, 189(1), 197C, 198, 501, 501(1), 501(6), 501(6)(aa)(i), 501(6)(d), 501(6)(d)(i))
TREATIES
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT)
International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR)Cases
DMH16 v Minister for Immigration and Border Protection [1017] FCA 448
Lafu and Minister for Immigration and Citizenship [2010] AATA 234
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Secondary Materials
Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – clauses 6.1(1) 6.1(2), 6.3(6), 11.1.2, 11.3(1), 12.1(2), 12.2
REASONS FOR DECISION
Senior Member Antoinette Younes
27 June 2018
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 12 December 2017 to refuse the application for a Safe Haven Enterprise (Class XE) visa, which the applicant lodged on 5 May 2016. The Immigration Assessment Authority (IAA) remitted the matter to the Department on 31 October 2016 on the basis that the applicant is a refugee within the meaning of s 5H(1) of the Migration Act 1958 (Cth) (the Act).
On 17 December 2015, the applicant was convicted of “assault aggravated or in circumstances of racial aggravation” and he received a sentence of seven months imprisonment wholly suspended for 12 months.
The delegate refused the application on the basis that the applicant did not satisfy relevant requirements of the Act. Specifically, the delegate found that the applicant did not meet the requirements of s 501 of the Act relating to character.
For the following reasons, the Tribunal has concluded that the decision to refuse the visa should be affirmed.
RELEVANT LEGISLATION
Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The character test is defined in s 501(6). Relevantly, a person does not pass the character test if the person has been convicted of an offence that was committed while the person was in immigration detention (s 501(6)(aa)(i)) or in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia (s 501(6)(d)(i)).
The conviction
The applicant assaulted his wife in the early hours of 2 December 2014 at the Christmas Island Detention Centre. On 17 December 2015, the applicant was convicted of assault aggravated or in circumstances of racial aggravation and he received a sentence of seven months imprisonment wholly suspended for 12 months.
Procedural issues
The applicant appeared before the Tribunal on 5 June 2018. At the commencement of the hearing, Mr Parwarni for the applicant advised the Tribunal that the applicant would not be giving evidence because he is exercising his right against self-incrimination. Mr Hutton contended that the applicant is required to give evidence and given the conviction, the respondent would like to cross-examine the applicant. Mr Parwarni submitted that the respondent is relying on evidence that could incriminate the applicant in matters which have not been put before the Court. It was clarified that those matters related to allegations of domestic violence prior to the incident that led to the conviction. Mr Hutton contended that they were matters which the Tribunal needed to be fully-apprised of in order to make the decision. Mr Parwarni contended that there was no evidence of any prior conduct to which Mr Hutton replied that there is evidence of prior conduct such as a sworn statement of the applicant’s spouse[1] relating to the impact that the violence had on her for the preceding three years. Mr Parwarni objected to the statement of the spouse being tendered. Mr Hutton contended that the material is directly relevant to the issues requiring the Tribunal’s determination. Mr Parwarni contended that the material is hearsay and is prejudicial to the applicant. The Tribunal does not agree that the Statement is hearsay as the spouse recounts her own experiences of domestic violence.
[1] Exhibit F (Tender Documents) – Statement of applicant’s spouse of 2 December 2014 pp 30-35.
The Tribunal decided that it was appropriate under the circumstances to accept the applicant’s submission not to give evidence on the ground of exercising his right against self-incrimination. The Tribunal is satisfied that this was the correct course of action and as advised in the course of the hearing, the Tribunal has not drawn any adverse inferences on the basis of the applicant’s exercise of that right.
The Tribunal is not bound by the rules of evidence and the Tribunal may inform itself of any matter in such a manner that the Tribunal considers appropriate. In relation to the material relating to prior conduct, the Tribunal is satisfied that the allegations of the history of domestic violence are relevant as they provide a context to the conviction of the applicant so that the Tribunal is not considering a single incident in isolation. Those matters are directly relevant to the assessment of risk.
It is correct that the conviction related to a single incident, however that does not mean that it is appropriate for the Tribunal to consider that incident in a vacuum. The material is relevant because it provides a history of physical abuse and puts in context the conviction. The material is also relevant in terms of the weight that the Tribunal could give to the applicant’s explanations about the assault. As advised in the course of the hearing, the Tribunal is satisfied that the allegations of prior incidents of domestic violence have significant probative value that outweighs the risk of prejudice. It is in the interest of a fair review that the Tribunal takes into account all relevant information to ensure the making of a correct and preferable decision.
Statement of spouse of 2 December 2014[2]
[2] Exhibit F (Tender Documents) – Statement of the applicant’s wife of 2 December 2014 pp 30-35.
In the Statement of 2 December 2014, the applicant’s wife stated that:
·Since their marriage in January 2012 in Malaysia, the applicant has had
a bad habit when he comes home being angry and frustrated from being out, he would take out his anger on me by pulling my hair, slapping, kicking and punching me… He would not hit me in the face. He would hit me on the parts of my body that are not exposed. I would be in pain for long periods of time.
·She never disclosed the abuse to anyone as she did not want to disrespect her parents and his parents by leaving the marriage. She was beaten on the hands to the point where she was unable to use them for periods of time.
·They arrived on Christmas Island on the 18th or 19th of August 2013 and they were placed in immigration detention where the abuse continued. It was “his habit to beat, slap and punch me”. She did not report the abuse because she was afraid that he would kill her. When he assaulted her in the detention compound, she would not yell out or make any noise. The applicant would say things like “I will destroy your future life if you say anything, I am not afraid even that you are here in Australia, If you are at home I would beat you more serious than here”.
·On 2 December 2014 at about 12am, she returned to her room after watching television and the applicant was asleep. At about 3 am, she was woken up by the applicant who was yelling and shouting. He was cursing her father and mother. He was saying that her mother was a “prostitute” and she asked him not to say such things about her parents. He rolled on top of her, sat on her stomach and placed both hands around her neck. He used his weight to hold her down. He squeezed her neck very hard and she could not breathe. The pressure on her neck made her think that she could die if he kept going. She felt as if she was losing consciousness and her eyesight. She could not yell out. She had to use all of her strength. She was able to break his hold around her neck but as soon as she did so, he punched her once on the mouth with his clenched right fist. The punch was very hard and she thought she had lost some teeth. She felt pain and tingling in her mouth. It was dark and she could taste the blood in her mouth. He then threw another punch on the left side of her body which hit her on the shoulder and then her left rib area. She felt a lot of pain. The assaults continued for a while and then he started yelling and saying:
I will destroy your life, I will tell my nephew’s case manager that you will not be able to watch television again with my nephew, he would be transferred to the single camp, I will create your life like an ant’s nest.
·After he yelled and shouted, he picked up his packet of cigarettes and left the room but returned a few times later yelling and shouting.
·She got up and saw him having a cigarette and talking to SERCO officers, one of whom asked her what had happened. She told the officer that the applicant had beat her. She was taken to a medical clinic where she was treated. She later attended Christmas Island police station.
·She does not have a relationship with the nephew who respects her like a mother and she treats him like a son.
The criminal proceedings
The applicant entered a plea of not guilty. The applicant’s wife gave sworn evidence during the trial[3] where she referred to incidents of violence. She stated that prior to coming to Australia whilst they were in Malaysia and Indonesia, whenever the applicant argued with people, he got angry and brought that anger home. He punched her, slapped her, and pulled her hair. She stated that the assaults continued when they came to Australia and during their detention but she never told anyone on Christmas Island about the assaults because the applicant said he would kill her.
[3] Exhibit F – Tender Documents, pp. 30-35.
The applicant’s wife gave evidence at the trial of the incident relating to the 2 December 2014 assault. She reiterated her statements that the applicant had sat on her stomach, squeezed her neck and punched her.
The applicant’s version of events
The applicant did not give evidence at the trial. The trial Magistrate did not draw any inference against the applicant as he had the right to choose not to give evidence.[4] There was however unsworn evidence before the Court of a video record of interview between the police and the applicant. The transcript of that record of interview is before the Tribunal.[5] The Tribunal notes that during that interview, the applicant denied ever hitting his wife. The applicant’s version during the interview is that, in essence, he woke up at around 3.30 am for morning prayers, that he went to wake up his wife for morning prayers, and that in order to wake her up he touched her on the face, and the nose.
[4] Exhibit F – Tender Documents at p.347.
[5] Exhibit F – Tender Documents at pp 347 62-105.
In a Statutory Declaration dated 30 May 2018,[6] the applicant provided background about his family in Burma and stated that:
[6] Exhibit B - Statutory Declaration of the applicant dated 30 May 2018.
·He is of Rohingya ethnicity of the Sunni Muslim faith. He is stateless and he left Burma to escape persecution due to his ethnicity and religion. The Burmese police were looking for him. While he was in Malaysia, he was diagnosed with HIV and hepatitis C.
·On 2 December 2014, he woke up around 3:30am for morning prayers and went out of his room at the Christmas Island detention centre for a cigarette. His wife was asleep in bed at the time. He asked one of the security officers for a lighter and the officer asked him for a cigarette so the applicant returned to his room to get one. He was standing outside smoking when he noticed his wife being taken away by another security officer. He was asked by a security officer to go back to his room.
·Later that morning he and his nephew moved to another area of the detention centre. On 3 December 2014, he was shocked to hear from a police officer that he had been accused of, and was being charged with, assaulting his wife.
·At the hearing, he witnessed his wife giving evidence of the assault. She said that he had been abusing her and assaulting her for the duration of their marriage, of about three years. He denies those allegations. He has never knowingly assaulted or abused his wife: “Every husband and wife has arguments and yes I may have raised my voice to her but I have never intentionally assaulted her”. On hearing the evidence against him in Court, the bruises that his wife had and the fact that there was no one else in the room, he accepts that he must have caused his wife’s injuries on that day. He does not have any recollection of the incident but stated that:
there is no other explanation for what happened on that day so I accept that I must have caused my wife’s injuries on that day. My wife had often told me that I scream and shout in my sleep. I was very sick that day and slept at 11pm. I was also on medication for my medical conditions and have suffered trauma in my life…
·On 17 December 2015, he was convicted in the Magistrates Court of Western Australia.
·Magistrate Flynn found that there was a low risk of him reoffending and consequently he was sentenced to 7 months imprisonment, suspended for 12 months. He was released back into the community.
·During the trial, he suffered tremendously both emotionally and psychologically. Even though he did not have to go to prison, losing his wife and facing charges had tremendous impacts on him. He is deeply ashamed for the pain he had caused to his wife on that day. He sincerely believed that violence is wrong and he wants to make sure that he would never hurt anyone ever again. He has no prior criminal records and he was always a law-abiding member of the community. Subsequent to the offence, he followed the advice of Magistrate Flynn and he did not engage in any criminal behaviour.
·He has ensured that he does not contact his wife and he is willing to grant her divorce and let her live life the way she wants. He is unsure as to why his wife would say that he was abusive towards her for three years. Perhaps she no longer loves him and felt this was the best way out.
·He understands that if the visa is refused, he only has two options, one to return to Myanmar voluntarily or remain in detention indefinitely. He fears that in case of his return, he would be persecuted due to his Rohyngia ethnicity, his Sunni faith and HIV status. It is well known that Rohingya people are persecuted and ostracised in Myanmar. He has experienced mistreatment due to his ethnicity and religion. Members of his family have been killed by the Myanmar regime and he fears that he would be killed if returned. Moreover, he fears that he would not be able to access life-saving medical treatment. There is also significant stigma and discrimination against people living with HIV. Indefinite detention would aggravate his mental health and extend the trauma and bad experiences that he had endured in his life with no end in sight.
·He accepts the conviction and he is deeply remorseful for his shortcomings and the pain that he had caused his wife on that one instance but he does not believe he should spend the rest of his life being detained. His indefinite detention would also cause significant impact to his nephew who is his only relative and family in Australia.
·Subsequent to his release in the community in Australia, he has volunteered at the Arakan Rohingya Development Association helping children learn the Burmese language. He has also been learning English as well to enable his effective communication with the rest of the Australian community. It is his desire to continue volunteering and to continue making a positive contribution to the Australian community. If released, he intends to seek counselling from STARRTS to address and resolve the past trauma that he has suffered to ensure that he does not reoffend.
The conviction
The Court observed that:
[a]part from self-inflicted injury, which I consider to be implausible, it is difficult to reconcile the accused’s version with the injuries that were observed and clearly consistent with [his wife’s] version… It was put to her, in effect, that before this night, she was looking for an opportunity to end her relationship with her husband. She had made that decision because of his HIV-positive status and she had also made that decision because of a desire to commence a relationship with somebody else ... In cross-examination, she bluntly denied each of those suggestions, explaining the effect of those things on her and her motivations. Her credibility, on my assessment, is unaffected, because those allegations have not been made out. It was clear that she desired to end the relationship after the incident of 2 December, but it is not the case, on my assessment, that she had made that decision before that date… Assuming her allegations of violence in the relationship to be made out, although it may appear to many irrational not to complain about that conduct, it does not follow that the failure to complain leads to the conclusion that that conduct did not occur. Put another way, persons in that situation may well behave irrationally.[7]
[7] Exhibit F – Tender Documents at p. 349.
His Honour was satisfied that the applicant did put his hands around his wife’s neck which he squeezed, that he had punched her to the mouth and that he delivered a blow to the upper part of her body. His Honour did not accept the applicant’s version of the events. In sentencing the applicant, the Court noted that
[t]he offence is more serious because she was your wife. People in a relationship are entitled to feel safe, and particularly in the home. When you were violent on this occasion, you had a profound effect on your wife, an effect beyond the injuries. I also need to take into account that you have a very unusual and traumatic background to this point. You left the place because you felt unsafe, and you had been in detention for over a year before this incident, and you have never alleged to have committed any criminal offences before this. Your conduct on this occasion may have been contributed to by the traumas of your experience over the previous years. Let me be clear. The conduct was unacceptable and cannot be repeated. Not only must you get that message, but other people must get the same message, whatever their background, wherever they have come from.[8]
[8] Exhibit F – Tender Documents at pp 353-354.
The Tribunal has noted the applicant’s version of the events. The Court’s finding is that the applicant had committed the offence with which he was charged. This finding occurred subsequent to a criminal trial. It is not open to this Tribunal to go beyond the findings of the sentencing Court. In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, the Full Federal Court held that a conviction, and the sentence imposed as a result of a conviction, are matters for the criminal law and its procedures are not for an administrative tribunal. Their Honours Branson, Lindgren and Emmett held:
[45] To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with the law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns tribunal reviewing a decision that takes the conviction and sentence as its starting point.
It is not open to the Tribunal to critically evaluate or question the conclusions and the findings of the Court. It is established law that the Tribunal must accept those findings and conclusions. Although the applicant lodged an appeal, his representative confirmed in an email on 13 June 2018, that the appeal has been abandoned by the applicant.
On the evidence before it, the Tribunal finds that the applicant has been found to have assaulted his wife and that he has been convicted. The Tribunal is therefore satisfied that the applicant has been convicted of an offence that was committed while he was in immigration detention. Consequently, the Tribunal finds that the applicant does not pass the character test in s 501(6)(aa)(i) of the Act.
Is there a risk that the applicant would engage in criminal conduct in Australia if allowed to remain?
The applicant was convicted of “assault aggravated or in circumstances of racial aggravation” based on his assault against his wife. In submissions to the Tribunal, the applicant’s representative contended that although the applicant accepts that the crime was violent in nature, given that the maximum penalty for this offence is imprisonment of three years and a fine of $36,000, it is implied that this offence is not “so” serious to mean that he should not be able to remain in Australia.
The applicant’s representative argued that, and without trivialising violent offences of a domestic nature, the fact that the applicant was sentenced to a prison term of 7 months, suspended for 12 months, indicates that the offence is not one which is so serious to justify refusal of the applicant’s visa. The representative relied on a Tribunal decision[9] whereby the Tribunal found that there had to be a real risk of reoffending, not a remote or fanciful risk. Firstly, although the Tribunal respects and gives regard to other decisions of the Tribunal, the Tribunal is not bound by those decisions. Secondly, to suggest that the Tribunal should assess a “real risk” of reoffending is not the correct test to apply.
[9] Lafu and Minister for Immigration and Citizenship [2010] AATA 234.
The Tribunal is satisfied and for the reasons outlined that the correct assessment is that whether there is more than a minimal or remote chance that the applicant will engage in criminal conduct.
The Tribunal acknowledges that the sentence imposed, on balance, does not appear to be so serious. However the Tribunal notes the remarks of the sentencing Court that:
(a)[t]he] offence is more serious because she was your wife. People in a relationship are entitled to feel safe, and particularly in the home. When you were violent on this occasion, you had a profound effect on your wife, an effect beyond the injuries… Let me be clear. The conduct was unacceptable and cannot be repeated. Not only must you get that message, but other people must get the same message, whatever their background, wherever they have come from.[10]
[10] Exhibit F – Tender Documents at pp 353-354.
In assessing the risk of engaging in criminal activity, the Tribunal needs to determine whether there is “more than a minimal or remote chance that the applicant will engage in criminal conduct”.[11]
[11] Ministerial Direction Number 65, cl 6.1(2s).
The Minister’s representative submits that in assessing the risk that the applicant will engage in criminal activity, this ground is enlivened where there is evidence suggesting that there is “more than a minimal or remote chance” that the applicant will engage in criminal conduct.[12]
[12] Ministerial Direction Number 65, cl 6.1(2s).
The Minister’s representative referred to the previous version of s 501(6)(d)(i) which referred to “significant risk” of future criminal conduct, as well as the amendment[13] which was explained in the explanatory memorandum as follows:
The purpose of this amendment is to clarify the threshold of risk that a decision-maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.
[13] Migration Amendment (Character and General Visa Cancellation) Act 2014.
The Tribunal accepts that the amendments clearly express the intention to lower the level of risk required in assessing future engagement in criminal conduct. The evidence before the Tribunal indicates that the applicant has denied ever hitting his wife. He pleaded not guilty but he was found otherwise subsequent to a criminal trial where a number of witnesses gave evidence and were cross-examined. In his Statutory Declaration of 30 May 2018 to the Tribunal, he denied any allegations of assault on his wife. He stated that he never knowingly assaulted or abused his wife but upon hearing the evidence against him in Court, he accepts that he “must have been the cause” his wife’s injury on that day.[14] He stated that he does not have any recollection of the incident.
[14] Exhibit B – Statutory Declaration of applicant para 16.
The applicant’s representative argued that it has now been almost 3 years since the applicant’s conviction in December 2015 and the applicant has not reoffended. The Tribunal acknowledges that there is no evidence of reoffending and the Tribunal has given this aspect some weight in favour of the applicant.
The applicant’s representative submitted that the Tribunal should give little weight to the evidence relating to the allegations of domestic violence prior to the relevant offence that led to the conviction as that would amount to punishing a person on untested allegations. The applicant’s wife gave sworn evidence during the trial and the applicant had a legal representative who had the opportunity to cross-examine the wife and ask questions, guided by the rules of evidence, about those allegations. As noted earlier, the Court preferred the wife’s version of events, at least, in relation to the incident of 2 December 2014. The Tribunal is satisfied that the totality of the evidence leads to a conclusion that there had been prior domestic violence perpetrated by the applicant on his wife.
The Tribunal is of the view that violence of any nature is serious and unacceptable. In this instance, the Tribunal is satisfied that the seriousness of the offence and the history of domestic violence raise concerns about risk of the applicant engaging in criminal conduct in Australia. Although the applicant has expressed his willingness to grant his wife a divorce, the Tribunal is satisfied that there is more than a minimal or remote chance of the applicant engaging in criminal conduct. The domestic violence occurred when the applicant and his wife were in detention. In oral submissions, the applicant’s representative argued that the wife does not fall within the class of people specified in the Direction as being vulnerable. The Direction at 6.3(3)[15] refers to “…vulnerable members of the community such as minors, the elderly or disabled...” The Tribunal is satisfied that the list of persons in that paragraph is not exhaustive. The Tribunal is of the view that the wife is a vulnerable woman with limited resources. Her husband who was supposed to be her support assaulted her. As the sentencing Court opined, the violence had a profound effect on the wife beyond the injuries.
[15] Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA (Direction No. 65 / Direction).
The applicant claimed that he was on medication but he has not provided any expert evidence about the impact of any medication. The Tribunal on the evidence accepts as plausible that the applicant was on medication, however the Tribunal does not accept that any such medication impacted him as claimed. The Tribunal found the applicant’s explanations to be unpersuasive and reflective of lack of remorse and acceptance of wrongdoing. The Tribunal notes that in the Statutory Declaration and at the end of the hearing, the applicant expressed shame and apology for his wrongdoing and for the pain that he had caused his wife on one instance, however, the Tribunal is satisfied that the totality of the evidence indicates that the applicant has not acknowledged wrongdoing and any expression of remorse at this stage is not genuine or authentic.
In the email to the Tribunal sent on 13 June 2018, the applicant’s representative indicated that:
…at the hearing, the Minister had sought to adduce evidence of a notice of appeal the applicant had filed in relation to his criminal conviction. The Minister submitted that this was inconsistent with the applicant’s evidence that he had accepted the offence he committed and was remorseful. In response, we note that the appeal was subsequently abandoned by the applicant. We further submit that the applicant’s evidence of contrition in his statutory declaration is at the time of signing the statutory declaration not from when he was found guilty as interpreted by the Minister. Further, we continue to assert that the applicant has demonstrated contrition by not committing any further offences in Australia. As such, we submit that the applicant’s evidence is not inconsistent and that the risk of the applicant offending further is low given that he has only been charged with and convicted of one offence in his life.
The Tribunal does not know the facts surrounding the abandonment of the appeal and the Tribunal agrees with the Minister’s submissions that the appeal is inconsistent with the applicant’s statements that he had accepted the commission of the offence for which he was remorseful. The evidence before the Tribunal indicates that there were prior incidents of domestic violence perpetrated by the applicant against his wife. The wife gave sworn evidence during the trial and the Tribunal gives that evidence significant weight. As raised by the Tribunal in the course of the hearing, the Tribunal finds it difficult to accept given the extent of the injuries sustained by the applicant’s wife that this was a one-off incident. Apart from asserting that the assault of 2 December 2014 must have happened, the applicant has not accepted that he had ever been violent towards his wife. The Tribunal is of the view that just because the wife had not complained previously, this does not mean that the claimed prior incidents of domestic violence did not occur. The sentencing Court found that the relevant assault involved the applicant applying force to his wife on at least three different occasions – once the force applied to the neck, once when the applicant punched his wife to the mouth, and once when he punched her to the side. The Court found that the injuries were consistent with the victim’s version. The Court did not “believe”[16] the applicant.
[16] Exhibit F – Tender Documents at p 350.
The Tribunal has noted the unsworn statement of the nephew[17] that he saw that his auntie and uncle were happy and that he had never heard or saw them argue or fight. However, the Tribunal is satisfied that this does not undermine the finding that there had been prior incidents of domestic violence. It is reasonable to suggest that it is unlikely that the applicant would have engaged in domestic violence against his wife if his nephew was a witness.
[17] Exhibit F – Tender Documents - Statement of Hossein Mohammed at pp 252-256.
The Tribunal is satisfied that the totality of the evidence indicates that the applicant had been violent towards his wife prior to the incident of 2 December 2014. His lack of acknowledgement of wrongdoing raises serious concerns for the Tribunal. His statement in the Statutory Declaration of 30 May 2018 that he intends to seek counselling to address and resolve past trauma does not indicate rehabilitation or an acknowledgement of wrongdoing.
On the evidence before it, the Tribunal is satisfied that given the seriousness of the offence, prior incidents of domestic violence, and the lack of genuine remorse and insight, there is more than a minimal chance that the applicant will continue to engage in criminal activity if he were allowed to remain in Australia.
Given the fact that violence is serious, any risk of harm to individuals, groups, or institutions in the Australian community is unacceptable. The Tribunal is satisfied that given the seriousness, any likelihood that the violence may be repeated is unacceptable.
For those reasons, the Tribunal finds that the applicant does not meet the character test in s 501(6)(d)(i) of the Act. Having made those findings, the Tribunal needs to consider the principles in Ministerial Direction No. 65.
MINISTERIAL DIRECTION NO. 65
On 22 December 2014, under s 499 of the Act, the Minister issued Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA (Direction No. 65 / Direction). The Direction is binding on decision-makers performing functions and exercising powers under s 501 of the Act. The Direction requires the Tribunal to take into account specified primary and other considerations.
Part B of the Direction identifies the considerations relevant to determining whether the exercise of discretion in relation to refusal to grant the non-citizen a visa.
In its Preamble, the Direction articulates some of the objectives of the Act which include the regulation, in the national interest, the coming into, and presence in, Australia of non-citizens…a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test.[18]
[18] Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA, at 6.1(1) and (2).
Under the headings General Guidance and Principles, the Direction refers to a number of guiding matters, including:
·The Government’s commitment to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that “there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.”[19]
·Being able to come to, and remain in Australia is a privilege and Australia has a right as a sovereign nation to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
·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.
·A non-citizen who commits a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants. In cases where the criminal conduct is so serious, any risk of similar conduct in the future is unacceptable.
·The length of time a noncitizen 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 the visa should be cancelled or refused.
[19] Ministerial Direction No. 65, Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA, at cl 6.3(6).
The Direction requires the decision-maker to take into account primary and other considerations relevant to an individual case including a differentiation between refusal of a visa and a cancellation whereby the latter recognises that non-citizens holding substantive visas would generally have an expectation of being allowed to remain in Australia whereas the former should have no expectation that the visa application would be approved in case of a character concern.
Of particular relevance to the exercise of discretion is the statement in the Direction that primary considerations should generally be given greater weight than other considerations.
The primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
Clause 11.1.2 of Direction 65 states:
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community,
decision-makers should have regard to the principle that the Australian
community’s tolerance for any risk of future harm becomes lower as the
seriousness of the potential harm increases. Some conduct and the harm
that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.(2) In addition, decision-makers should have regard to the principle that
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.(3) 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:
i.information and evidence on the risk of the non-citizen reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);and
iii.the duration of the intended stay in Australia.
(4) Decision-makers should consider the risk of harm in the context of purpose of the intended stay, and the type of visa being applied for including whether there are strong or compassionate reasons for granting a short-stay visa.
The applicant has engaged in a pattern of behaviour that leads the Tribunal to view his conduct as serious and relevant to the consideration of the risk to the Australian community should he display the same pattern again. For the reasons that have been explained, the Tribunal is satisfied that the applicant has displayed a violent pattern. He has been convicted of a violent crime and the Tribunal considers that seriously. The comments of the sentencing Court as discussed earlier reflect the seriousness of the offending conduct. The wife was afraid that the applicant would kill her if she had reported him and the Tribunal gives significant weight to that aspect. The sentencing Court did not accept the applicant’s version. The fact that the applicant has not repeated the behaviour is not reassuring. The Tribunal is satisfied that the applicant’s violent conduct is a serious matter of concern to the Australian community.
The respondent’s representative submitted that there are other aspects of the applicant’s conduct raising doubts about his credibility. These include the provision of a false driver’s license to the Department in support of his application for a protection visa, his claim that he married his wife in 2000 (as opposed to her statement to the police that they were married in 2012), as well as the delegate’s findings that the applicant had fabricated parts of his claims. The respondent’s representative argued that those attempts to mislead the Department should be viewed seriously. The Tribunal acknowledges that the provision of truthful and accurate information to the Australian authorities is fundamental and there is a lawful expectation that visa applicants provide accurate and correct information. Although the Tribunal accepts as plausible that there are aspects of the applicant’s protection claims that cause concern, the Tribunal also accepts that those aspects do not necessarily mean that the applicant is entirely untruthful and should not be believed in any way. On the evidence before it, the Tribunal is satisfied that the seriousness of the applicant’s conduct in relation to the domestic violence and his lack of genuine remorse mean the Tribunal cannot be satisfied that the applicant would not commit further violent offences in Australia. Consequently the Tribunal gives the principle of the protection of the Australian community significant weight in this instance. This aspect of the consideration weighs heavily against the applicant.
b)The best interests of minor children in Australia;
The applicant does not have children under the age of 18. He has one relative in Australia, who is his paternal aunt’s grandson and that relative is over the age of 18.
(c) Expectations of the Australian Community.
The Direction states at clause 11.3(1) that the Australian community expects noncitizens to obey Australian laws while in Australia. Clause 11.3(1) of the Direction provides that:
[w]here 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 refuse the visa application of such a person. Visa refusal 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 be granted a visa.
The Tribunal is of the view that given the applicant’s behaviour in relation to his wife, it is reasonable to suggest that the Australian community would not expect that he would be granted a visa. The Tribunal acknowledges that community expectation is difficult to objectively ascertain, however it is reasonable to suggest that the Australian community expects its members to act responsibly towards one another and not to be violent.
The Tribunal is satisfied that this consideration weighs heavily against the applicant.
Other considerations
(b) International non-refoulement obligations
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to 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).
Direction 65 states that:
The existence of a non-refoulement obligation does not preclude refusal of a noncitizen’s visa application in Australia. This is because Australia will not remove a noncitizen, as a consequence of the refusal of the visa application, to the country in respect of which the non-refoulement obligations exists”.[20]
[20] Direction No. 65 at cl.12.1(2).
Protection Claims
The applicant arrived in Australia on 19 August 2013 as an irregular maritime arrival. On 5 May 2016, he lodged the Safe Haven Enterprise (Class XE) visa. The applicant’s claims for protection included being of Rohingya ethnicity, stateless, a Sunni Muslim, being also HIV positive, Departmental data breach, his uncle’s killing due to being a supporter of the National League for Democracy (NLD), and being of adverse interest to the Burmese authorities.
The delegate who assessed the applicant’s protection claims accepted as being plausible that the applicant is Rohingya. The delegate accepted that the applicant is a Sunni Muslim and that he is HIV positive. However, the delegate did not accept that the applicant is stateless as claimed and found that the applicant held a Burmese passport as recently as 2012 and was therefore recognised by the authorities to be a citizen of Burma. Furthermore, the delegate did not accept that the applicant is of interest to the authorities. In essence, the delegate found that the applicant is not a refugee as defined in s 5H(1) of the Act and that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Burma, there was a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
The applicant sought review and the IAA reviewer found the applicant to be a refugee within the meaning of s 5H(1) on the basis of the applicant’s membership of a particular social group of persons who are HIV positive.[21] The IAA reviewer concluded that having found that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group, it was not necessary to make any findings relating to the balance of the applicant’s claims or integers of his claims, including the claim of statelessness, whether the applicant is Rohingya, the claimed links of the uncle to the NLD, whether the applicant is of the Sunni sect of Islam or any claimed harm on the basis of the data breach.[22] The matter was remitted to the delegate for reconsideration.
[21] Exhibit C (G Documents) – IAA decision record p 8 para 16.
[22] Exhibit C (G Documents) – IAA decision record p 88 para 17.
Although initially the applicant’s representative submitted that the Tribunal should also take into consideration other aspects of the applicant’s claims in assessing the refusal such as his ethnicity and Sunni faith, the respondent’s representative contended that this was not necessary given the uncontested findings of the IAA. The respondent has accepted the findings of the IAA and the Tribunal accepts those findings. The respondent’s representative submitted that there are not different categories of non-refoulement obligations and that it is a matter of recognising that there are those obligations. The Tribunal is persuaded by those submissions. The Tribunal is satisfied that there are non-refoulement obligations irrespective of the grounds. Nevertheless, the Tribunal further accepts that the applicant is a Rohingya and that he is a Sunni Muslim. The delegate for the reasons stated did not accept that the applicant is stateless and giving regard to the delegate’s observations that the applicant held a Burmese passport as recently as 2012, the Tribunal is satisfied that this is persuasive evidence that the applicant is a citizen of Burma. In relation to harm on the basis of the data breach, on the basis of the information before it, the Tribunal is not satisfied that the applicant is owed protection on that basis. The Tribunal notes that the delegate who assessed the applicant’s protection claims found that if the Burmese authorities had become aware of the applicant’s detention, they would necessarily conclude that he had sought asylum and consequently the applicant would be targeted on that basis.
The Tribunal refers to the applicant’s representative’s submissions that the “Australian community would tolerate the applicant’s low risk of reoffending rather than expose him to the real risk of serious harm should he be returned to Myanmar”. For the reasons outlined, the Tribunal has found that there is more than a minimal chance that the applicant will continue to engage in criminal activity if he were allowed to remain in Australia and that given the fact that violence is serious, any risk of harm to individuals, groups, or institutions in the Australian community is unacceptable. The Tribunal is not persuaded that the Australian community would tolerate the risk of reoffending.
Looking at the claims cumulatively, the Tribunal is satisfied that the applicant is a refugee and therefore there are non-refoulement obligations.
The respondent’s representative submitted that should the Tribunal affirm the delegate’s decision, the applicant would be liable to be removed from Australia under s 198 of the Act and he would be liable to be held in immigration detention until he could be removed in accordance with s 189(1) of the Act. Section 198 of the Act requires that an officer of the Department to remove an unlawful non-citizen whose visa application has been refused “as soon as reasonably practicable”.
Section 197C of was inserted in the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
As noted in the Explanatory Memorandum:
Australia will continue to meet its non-refoulement obligations through other mechanisms and not through the removal powers in section 198 of the Migration Act. For example, Australia’s non-refoulement obligations would be met through the protection visa application process or the use of the Minister’s personal powers in the Migration Act, including those under sections 46A, 195A or 417 of the Migration Act… If the minister thinks that it is in the public interest to do so, the Minister may grant a visa to a person to ensure that the person is not removed in breach of non-refoulement obligations.
Section 197C of the Act provides that:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the noncitizen.
Section 189(1) of the Act provides that “If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful noncitizen, the officer must detain the person”.
Those sections were the subject of consideration in DMH16[23] where his Honour ACJ North set aside the decision to refuse to grant the applicant a protection visa. His Honour observed that:
[23] DMH16 v Minister for Immigration and Border Protection [1017] FCA 448.
by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, immediately if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.[24]
[24] DMH16 v Minister for Immigration and Border Protection [1017] FCA 448, at p 26.
The Tribunal is satisfied that the consequence of refusing to grant the applicant a Safe Haven visa is that, pursuant to s 197C and s 198 of the Act, the applicant would as soon as reasonably practicable be removed from Australia to Myanmar, notwithstanding the fact that the applicant is owed non-refoulement obligations. Although the Tribunal recognises that the Minister could intervene to honour Australia’s non-refoulement obligations, the Minister’s powers are non-reviewable and non-compellable. This means that potentially the applicant could remain in detention indefinitely. Although detention and removal are arguably lawful consequences of the legislation, they are nevertheless serious consequences and weigh in favour of the applicant.
Further, and unless the Minister exercised non-compellable powers under s 48B and s 46(2) of the Act, the applicant would not be able to make another application for a protection visa or a bridging visa.
The Tribunal is satisfied that the non-refoulement obligations weigh in favour of the applicant and the Tribunal has given this consideration significant weight.
(c) Impact on family members
The applicant has a nephew in Australia who lived with the applicant in the same house until the applicant’s detention. The nephew is not an Australian citizen or permanent resident or a person who has the right to remain in Australia permanently. He is also seeking protection in Australia.
For the purpose of cl 12.2 of Direction 65, the Tribunal gives this aspect no weight.
(c) Impact on victims
The respondent’s representative submitted that if the visa were granted, the applicant would be at large in the community and that given the history of domestic violence, the Tribunal should take into account the likely fear and concern that this may cause the applicant’s wife as the victim of the assault.
The Tribunal refers to the Court’s observations that “People in a relationship are entitled to feel safe, and particularly in the home. When you were violent on this occasion, you had a profound effect on your wife, an effect beyond the injuries….”[25]
[25] Exhibit F – Tender Documents at p 353.
The Tribunal is of the view that the violence that the applicant perpetrated on his spouse had a profound impact on her including, physical injury, pain, fear, humiliation, and shame. The applicant committed violence towards a vulnerable person who had the right to feel safe. It is particularly concerning that the acts of violence were committed towards the victim at a time when both she and the applicant were in immigration detention, seeking Australia’s protection. It is difficult to reconcile that a person who is seeking protection from the Australian authorities on the basis of fear of harm in case of return to their country, would cause such serious harm to anyone, let alone their spouse.
The Tribunal is satisfied that this aspect weighs heavily against the applicant.
(d) Impact on Australian business interests
There is no evidence before the Tribunal that there is any such impact.
Cumulative considerations
There is evidence before the Tribunal that the applicant volunteers at the Arakan Rohingya Development Association helping children learn the Burmese language. The Tribunal recognises that contribution that the applicant has made to the Australian community.
The Tribunal has carefully considered relevant matters in Direction No. 65. The aspect that weighs heavily in favour of the applicant relates to the non-refoulment obligations and the Tribunal has given this aspect significant weight. Those obligations are not primary obligations and in accordance with the Direction, they fall under Other Considerations.
In relation to the Primary Considerations, Protection of the Australian Community, Expectations of the Australian Community, the best interests of minor children in Australia, the Tribunal is satisfied, for the stated reasons, that those considerations weigh heavily against the applicant. Also weighing heavily against the applicant is the consideration of the impact on the victim.
A decision that involves non-refoulement obligations is a significant decision for the Tribunal and weighs heavily on the Tribunal personally. In relation to the applicant’s submissions that the indefinite detention that he could face should the visa be refused is incommensurate with the “gravity of the crime he has committed”, the Tribunal is of the view that the visa refusal in these circumstances is not intended to be punitive. Although the Tribunal does not wish to take those comments out of their context, to suggest that the consequence should be commensurate with the offence is not persuasive. It is clear that Direction 65 is more about protecting the Australian community from harm rather than punishing an applicant.
The Tribunal recognises that the Primary Considerations should generally be given greater weight than the Other Considerations, but this does not mean that non-refoulement obligations are not significant. The Tribunal is of the view that those obligations reflect Australia’s commitment to international instruments to which Australia had decided to become a signatory but in light of the legislative and policy frameworks, the Tribunal is not satisfied that those obligations in the circumstances outweigh other considerations.
The principles in Direction 65 require the decision-maker, such as the Tribunal to undertake a balancing exercise which involves consideration of all relevant matters and to accord them proportionate weight. The balancing process is not a mathematical formula or a formula that requires the ticking of the relevant boxes. The balancing process requires the consideration of all relevant matters before the Tribunal and the assignment of proportionate weight.
In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction 65, the Tribunal is satisfied that the correct and preferable decision is to affirm the decision to refuse to grant the applicant the visa.
In light of those comments and for the stated reasons, the Tribunal finds that the applicant has been convicted of an offence that was committed while he was in immigration detention (s 501(6)(aa)(i)) and that in the event the applicant were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia (s 501(6)(d)). Therefore, the Tribunal finds that the applicant does not meet the requirements of s 501.
On the evidence, the Tribunal is satisfied that the correct and preferable decision is to affirm the decision to refuse to grant the applicant a Safe Haven Enterprise (class XE) Visa.
84.
85. I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes
............................[sgd]............................................
Associate
Dated: 27 June 2018
Date of hearing: 5 June 2018 Solicitor for the Applicant: Mr V Parwani, HIV/AIDS Legal Centre Solicitor for the Respondent: Mr J Hutton, Australian Government Solicitor
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