ZMBZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4185
•19 October 2020
ZMBZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4185 (19 October 2020)
Division:GENERAL DIVISION
File Number(s): 2018/1781
Re:ZMBZ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:19 October 2020
Place:Sydney
The reviewable decision, being the decision of the respondent dated 12 December 2017, to refuse the applicant a Safe Haven Enterprise (Class XE) visa, be set aside and the matter be remitted to the respondent with the direction that the discretion in s 501(1) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.
..................................[sgd]......................................
Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – refusal to grant Safe Haven Enterprise (Class XE) visa – whether applicant fails character test – whether there is a risk that the applicant will engage in criminal conduct in Australia – where applicant convicted of common assault on his wife while in immigration detention – whether discretion should be exercised – Direction No. 79 applied – applicant had not engaged in any further criminal conduct – where international non-refoulement obligations owed based on applicant’s HIV status – whether applicant may face other serious harm if returned to Myanmar based on other aspects – decision under review set aside and remitted
LEGISLATION
Migration Act 1958 (Cth) ss 5H, 499, 501
CASES
CPJ16 v Minister for Home Affairs [2020] FCA 1408
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576
Goundar v Minister for immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123
Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569
Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CPJ16 [2019] FCA 2033ZMBZ v Minister for Home Affairs [2019] FCAFC 195
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
19 October 2020
The applicant arrived in Australia as an illegal maritime arrival in 2013 with his wife, whom he had married in the previous year in Malaysia. He is a Rohingya. He left Myanmar at the age of 16 and went to Bangladesh and from there briefly back to Myanmar before returning to Bangladesh. Thereafter, he went to Thailand and then to Malaysia where he resided for some twelve years, before finally coming to Australia from Indonesia. He has applied for a Safe Haven Enterprise (Class XE) visa, which was refused by the Minister’s delegate. He applied for review of that decision and I have re‑heard that application following an earlier decision of the Tribunal being set aside in the Full Court of the Federal Court by Perram, Stewart and Abraham JJ: ZMBZ v Minister for Home Affairs [2019] FCAFC 195.
The applicant is HIV positive and had contracted the disease before his marriage. His wife said that her parents would not have arranged her marriage to the applicant if she or they had known of the HIV disease from which he suffered.
He has been convicted of one criminal offence. It relates to the offence of common assault upon his wife while they were in detention on Christmas Island on 1 December 2014. The conviction occurred in December 2015 after a trial in the Magistrate’s Court of Western Australia (‘the Magistrate’s Court’).
The Magistrate heard evidence from the applicant’s wife, Serco officers, and from a nurse at Christmas Island who examined the applicant’s wife on the day of the attack. The applicant did not give evidence and the Magistrate found the offence to be proved to the criminal standard of proof. The wife had alleged, speaking generally, that the applicant had physically abused her on earlier occasions both on Christmas Island and elsewhere. The Magistrate made no findings about those allegations. However, the Minster tendered the transcript of her evidence in order to make such a case before the Tribunal, and also tendered an unsworn statement she had made to the Australian Federal Police.
At the time of the trial, the applicant’s wife gave evidence before the Magistrate’s Court that she was then living in Queensland with another male person whom she had met in detention on Christmas Island. She denied that she intended to live with that person on 1 December 2014. It was put to her that her evidence was a lie, which she denied.
Mr Chatterjee, for the applicant, objected to my receiving the unsworn statement made by the applicant’s wife to the Australian Federal Police. I received it provisionally, and now confirm my decision to admit the document, on the ground that although the evidence was unable to be tested before me, it contains material that is capable of being regarded as rationally probative and relevant to this review. Its weight is to be considered in the light of all of the material before the Tribunal in these administrative proceedings. The evidence of the applicant is that he did not assault his wife on 1 December 2014 and never did so.
The issues in this proceeding arise under s 501 of the Migration Act 1958 (‘the Act’) and under Direction No. 79 (‘Direction 79’), made under s 499 of the Act.
CHARACTER TEST
The ground on which the delegate acted to find that the applicant failed the character test is that specified in s 501(6)(d)(i), that there is a risk that if he the applicant would engage in criminal conduct in Australia. I will first consider whether the applicant fails the character test on that ground.
The applicant was convicted of the offence to which I have referred to above in 2015 in respect of events which occurred on 1 December 2014. The remarks on sentence indicate that the learned Magistrate found that the applicant’s offence included three injuries inflicted on his wife: by putting his hands around his wife’s neck and squeezing, by punching her on the mouth and by delivering a blow to the upper part of her body.
Those attacks took place almost six years ago.
The applicant firmly denied the truth of his wife’s allegations, but, as the applicant accepted, I must act on the conviction recorded and accept the essential elements of the offence.
The wife’s evidence was that the applicant had previously assaulted her, both on Christmas Island and overseas. The applicant’s denials of those allegations were tested in cross-examination, whereas the wife’s evidence was unable to be tested before me. The wife also said that she had not told anyone about the earlier assaults at the time, and while it is true that the assaults on 1 December 2014 were consistent with the wife’s evidence about earlier assaults, the Magistrate declined to reject her evidence about the earlier assaults on the basis of her admitted failure to report the assaults to others, commenting that:
[a]ssuming her allegations of violence in the relationship to be made out, although it may appear to many [sic] 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.
The earlier assaults were not essential ingredients of the charges of which the applicant was convicted. There was nothing about his answers in cross-examination before me to satisfy me that the alleged earlier assaults had occurred.
The applicant was at liberty in the community before his conviction for some 14 to 16 months, and there is no evidence of any criminal conduct in that time. His evidence was that he worked as a volunteer in the Rohingyan community. Nor is there any suggestion that during his immigration detention since December 2015, he has been guilty of any misconduct. The applicant has had no contact with his wife since 1 December 2014 and last saw her in December 2015 when she gave evidence at his trial. He knows nothing about her current whereabouts.
A fellow Rohingyan gave evidence to the Tribunal that while the applicant lived with him and his wife in Brisbane for six months, he has never known the applicant to be a violent person. A Senior Social Worker in the NSW Multicultural HIV and Hepatitis Service within NSW Health drew attention to the availability of a support worker of a cultural background similar to his, for peer support in relation to his medical condition and related psychosocial issues.
The offence of which he was convicted suggests that he may, if released into the community, again offend in a similar or some other way. A real, and not merely theoretical risk that he will do so is what is required by s 501(6)(d)(i). In my opinion, on balance, the risk that he may reoffend is real, although I do not find that the risk should be characterised as other than low. Therefore, I find that he does not pass the character test on the ground found against him by the delegate.
Ms Watson, for the Minister, sought to rely on another ground available to the Minister to support the proposition that the applicant failed the character test, namely the ground in s 501(6)(aa)(i), on the basis that the applicant was convicted on an offence that was committed while he was in immigration detention. Ms Watson accepted that her submission was inconsistent with the decision of the Federal Court in Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, by which the Tribunal is bound. Since I have found that the applicant does not pass the character test, the Minister’s submission does not arise for consideration.
DIRECTION 79 CONSIDERATIONS
The next matters to be considered arise under Direction 79. Direction 79 makes the following considerations mandatory, in addition to any other relevant matters:
(a)The protection of the Australian community;
(b)The expectations of the Australian community;
(c)International non-refoulement obligations.
Protection of the Australian Community
As to the first of those matters, cl 11.1.1 of Direction 79 provides as follows:
11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
h)The cumulative effect of repeated offending;
i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The crime was violent, against a woman, and was committed while the applicant was in immigration detention. He was sentenced to imprisonment for seven months, suspended for 12 months, and was not required to serve the sentence. The offending was not repeated. The question of whether any assault took place on earlier occasions is a matter on which I cannot be satisfied on the evidence before the Tribunal. The offending was serious, but the injuries suffered by his wife were not apparently life-threatening, nor did they apparently have long effects. Subsequent conduct by the applicant does not suggest that there is a likelihood of reoffending or recidivism if he is released into the community. As I have said the likelihood of his reoffending is low. I was told by Mr Chatterjee that the visa applied for is likely to be of three years duration if it is granted.
The applicant has himself worked as a volunteer for an organisation assisting Rohingyan refugees and desired to do so again if he is released from detention.
Expectations of the Australian Community
As to the expectations of the Australian community, the Full Court of the Federal Court has construed cl 11.3 of Direction 79 by regarding the statements made about community expectations as statements of government policy not open to be departed from by a decision-maker, and the consideration in question will usually not favour an application, but its weight will be a matter for the decision-maker in all of the circumstances of the case.
International Non-Refoulement Obligations
International non-refoulement obligations have been determined to be owed in respect of the applicant. The Immigration Assessment Authority (‘IAA’) found him to be a refugee within the meaning of s 5H(1) of the Act. The IAA found that if he returns to Myanmar, he has a well-founded fear of persecution from Myanmar authorities due to his membership of the particular social group of people who are HIV positive. The IAA, having consulted Australian and US country information concerning Myanmar, concluded that the applicant would face a real chance of serious harm from Myanmar authorities and society, including serious unreasonable harassment, serious physical assault, serious psychological harm and/or loss of life.
The IAA’s assessment was supported by the Minister in these proceedings. The Minister accepted that because of his HIV status, if he were returned to Myanmar, he would face a serious risk of harm. In earlier proceedings, I have heard from the Minister’s representatives of an inflexible governmental policy that a person will not be refouled in breach of Australia’s international treaty obligations, which consequently carried with it the likelihood of indefinite detention, absent action taken by the Minister personally to avoid that result. In this case, I was not told of such an inflexible policy, but rather was told of the legal obligations said to produce the consequence that removal would occur as soon as it was reasonably practicable. This submission involved that the statements about government policy contained in Direction 79, including in cls 12.1(2) and 12.1(6), are incorrect. Clause 12.1 of Direction 79 provides as follows:
12.1 International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50I of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.
Also perhaps implicit in the submission made by the Minister in this case is that the Minister accepts that, conformably with the decision of North ACJ in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576 (‘DMH16’), there is a duty to remove a non-citizen without a visa to his or her country of origin, even if that involves a breach of Australia’s treaty obligations. Of course, the Tribunal and all decision-makers are bound by DMH16 unless and until it is either overruled by a superior court or s 197C of the Act is repealed. The Minister has not so far sought to challenge DMH16.
The significance of the submission in the present case is that it presents me, standing in the shoes of the delegate, with a stark choice. Should a visa be refused, with the legal consequence that a non-citizen will be removed to his or her country of origin, and the consequence that Australia will be in breach of its international treaty obligations? Or should it be granted in order to avoid such a consequence? Australia’s international treaty obligations, although not part of domestic law, are a serious matter which according to the dictates of good government should not, except in the most unusual cases, be treated as other than a powerful reason not to refuse a visa.
Moreover, in this case, it is put by Mr Chatterjee that quite apart from Australia’s treaty obligations, a different universe of harm for the applicant personally would be involved in his return to Myanmar referring to cases such as Goundar v Minister for immigration and Border Protection [2016] FCA 1203; (2016) 160 ALD 123 and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589; (2019) 373 ALR 569. Mr Chatterjee submitted that by virtue of the applicant’s religion (Sunni Muslim), ethnicity, and claimed statelessness, he would likely face harm if he were returned to Myanmar. These claims were not assessed by the IAA as they considered it was unnecessary in light their decision based on the applicant’s HIV status. Mr Chatterjee relied upon a US Department of State report on religious freedom and an Australian Department of Foreign Affairs and Trade Country Information Report, both published in 2019, to support the applicant’s claims. The reports disclose widespread violence and discrimination, and restrictions on movement and access to essential services on Rohingyan Muslims.
While there is insufficient evidence to make a finding on whether the applicant is stateless, in any event, Ms Watson accepted that the applicant’s religion and ethnicity would lead him to face incredible difficulties if he was returned.
Using a discretion to return a man to Myanmar in the circumstance that he faces a serious risk of harm in that place, including, as the IAA assessed, a risk of serious injury and/or loss of life, would raise humanitarian concerns proper to be taken into account. Indeed, to fail to take those considerations into account, or, perhaps, to fail to give effect to them may cause the decision to be characterised as legally unreasonable. See, for example, the discussion by Mortimer J in CPJ16 v Minister for Home Affairs [2020] FCA 1408 at [91]–[93].
DECISION
Both the circumstances mentioned in the two previous paragraphs seem to me to have great weight, such as, on balance, to bring about the result, notwithstanding what I have found about the considerations mentioned in sub-paragraphs (a) and (b) at [17] above, the correct or preferable exercise of discretion is to exercise the discretion in s 501(1) in favour of the applicant.
The reviewable decision will therefore be set aside and the matter will be remitted to the respondent with the direction that the discretion in s 501(1) of the Act is to be exercised in his favour.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 19 October 2020
Date(s) of hearing: 10 September 2020 Counsel for the Applicant: Mr I Chatterjee Solicitors for the Applicant: HIV/AIDS Legal Centre Solicitors for the Respondent: Australian Government Solicitor
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