ZPRX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4810
•21 December 2022
ZPRX and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4810 (21 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/8206
Re:ZPRX
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:21 December 2022
Date of written reasons: 19 January 2023
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 6 October 2022 not to revoke the mandatory cancellation of the Applicant’s Class XA, Protection (Subclass 866) visa, is set aside. In substitution, it is decided that the mandatory cancellation of the Applicant’s Class XA, Protection (Subclass 866) visa is revoked.
................................[SGD].......................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – violence against women – family violence – protection of the Australian community – expectations of the Australian community – links to the Australian community – non-refoulement obligations – indefinite detention – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) s 5G, 499, 500, 501, 501CA
Cases
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Pearson v Minister for Home Affairs [2022] FCAFC 203
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
FYBR v Minister for Home Affairs [2019] FCAFC 185
DLJ18 v Minister for Home Affairs [2018] FCA 1650
BMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
X January 2023
BACKGROUND
ZPRX (the Applicant) is a Rohingya person born in Myanmar in 1993. He arrived in Australia on 12 April 2012. On 22 August 2012, he was granted a Class XA Subclass 866 Protection visa (‘the visa’) under the Migration Act 1958 (Cth) (the Act).[1] He was 6 years old when he fled Myanmar, initially to the relative safety of Bangladesh, where he lived with an uncle. He has not seen his mother or surviving relatives for more than 20 years.
[1] G6/56.
On 27 May 2020, he was arrested and remanded in custody, with bail refused, following an assault on his de facto partner. On 29 October 2020, he was sentenced to an aggregate term of 18 months imprisonment commencing on 27 May 2020 with a non-parole period of 10 months,[2] and an indicative release date of 26 March 2021.[3] The details of his offending are set out below.
[2] See Australian Criminal Intelligence Commission ('ACIC') Report: G4/33.
[3] New South Wales Local Court: G9/70.
Under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
On 16 December 2020, an official of the Department of Home Affairs (the Department) notified the Applicant that his visa had been cancelled because he did not pass the character test.[4] A delegate of the Minister was satisfied that he did not pass the character test based on information included in various official reports.[5] The delegate also noted that he was then serving a sentence of more than 12 months imprisonment, on a full-time basis, in a Correctional Centre. He was invited to make representations as to whether there was another reason for revoking the cancellation decision, even though he failed the character test.[6]
[4] G23/166.
[5] National Criminal History Check released on 19 November 2020: G5/47; Advice of Court Result in the District Court of New South Wales dated 9 December 2020 and issued on 11 December 2020. G8/64.
[6] G7.
To comply with certain legal requirements, on 22 December 2021 the Department issued a second invitation to make representations about the decision to revoke his visa,[7] and on 18 January 2022, he made such representations,[8] stating:
Whilst not exhaustive, set out below are my reasons for seeking revocation of my visa cancellation:
- I understand the seriousness of my past actions resulting in my past convictions and have taken steps rehabilitate during my term of imprisonment and immigration detention.
- I am Rohinghya and a stateless person who engages Australia's protection and non-refoulment obligations. The protection finding made in relation to my protection visa engages section 197C(3)(b) of the Migration Act 1958 (Cth). I submit that the consequence of this provision is that I may face indefinite mandatory detention if my revocation request is denied. I submit that this outcome is unjust and does not accord with the expectations of the Australian community. I wish to provide further submissions regarding my reasons through my lawyers in due course once we receive further documents regarding my matter. [9]
[7] G7/57.s
[8] G13/85.
[9] G7/86.
A solicitor from the Refugee Advice and Casework Service (RACS) subsequently echoed these reasons by email,[10] and then by letter dated 11 April 2022, provided a lengthy submission on his behalf.[11]
[10] G14/89
[11]G18/118.
On 6 October 2022, a delegate of the Minister decided not to revoke the visa cancellation.[12] On the same day, the Applicant applied to the Tribunal for review of the delegate’s decision.[13]
[12] G3.
[13] G2.
The application was heard by the Tribunal by videoconference on 19 and 20 December. The Applicant was represented by Ms M. Mamarot of Southwest Migration and Legal Services. The Respondent was represented by Mr A. Chan, of Sparke Helmore lawyers.
A person ‘sentenced to a term of imprisonment of 12 months or more’ has a ‘substantial criminal record’ and therefore does not pass the character test. During the hearing, it was assumed that the Applicant did not pass the character test, based on the combined effect of paragraphs (6)(a) and (7)(c) of section 501. It was accepted that the word ‘sentenced’ in paragraph 7(c) included an aggregate sentence.
The relevant 84th day for the purpose of s 500(6L)(c) of the Migration Act was 29 December, but given the Christmas shutdown, which commenced on the afternoon of 23 December, I indicated that I would consider the case overnight and convey my decision the following day, with written reasons to be provided later, a procedure sanctioned by the Federal Court.[14]
[14] See Khalil v Minister for Home Affairs [2019] FCAFC 151, at [39] et seq.
On 21 December, I advised the parties that the reviewable decision would be set aside on discretionary grounds. I found that the Applicant did not pass the character test but that there was ‘another reason’ why the decision not to revoke the cancellation decision should be set aside. In my opinion, his indefinite detention was not warranted by the nature of his offending, or the risk of harm to the Australian community, which I assessed as low to very low.
The following day (22 December), the Full Federal Court decided in a separate matter that aggregate sentences did not fall within the reach of paragraph 7(c): Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’). The Court said, at [47]:
Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.
The sentence in respect of which the Applicant’s visa was mandatorily cancelled was an aggregate sentence.[15] The Federal Court’s decision therefore applies. His visa was not amenable to mandatory cancellation by reference to paragraph 7(c) because he was not relevantly ‘sentenced’ to a term of imprisonment of 12 months or more. No other ground was relied upon by the Minister in cancelling his visa. In other words, according to the law as stated by the Full Federal Court on 22 December, his visa ought not to have been mandatorily cancelled. Had the Tribunal’s decision in the present application been rendered after the publication of Pearson, there would be no statutory basis for finding that the Applicant does not pass the character test. No ground other than paragraph 7(c) was relied upon by the delegate.
[15] See Australian Criminal Intelligence Commission ('ACIC') Report: G4/34. The offences underpinning the aggregate sentence are included in Appendix A.
The obligation of the Tribunal in providing written reasons upon request is to explain the reasons for its decision. This is apparent from the words of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) which provides, in subsection 43(2), as follows:
Tribunal must give reasons for its decision
(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
(2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.
(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
...
When Tribunal's decision comes into operation
(5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.
(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
At the time of decision, that is, on 21 December 2022, I was satisfied that the Applicant did not pass the character test. I was however satisfied as a matter of discretion that there was another reason why the original decision should be revoked. By reason of subsection 43(5A) of the AAT Act, the decision of the Tribunal came into effect on the day before the decision in Pearson. It is therefore required that I set out the actual grounds for the decision rendered on 21 December 2022.
EVIDENCE
The Applicant provided the following written material which was taken into evidence.
(a)Statutory Declaration by [ZPRX] (the Applicant);
(b)OSSTT Overseas Services to Survivors of Torture and Trauma Report (13 December 2022);
(c)Letter of support by Mr Mohammed Amin (Chairman of Australian Burmese Rohingya Organisation (ABRO);
(d)Certificates of Rehabilitation course completion:
(i)Anger Management 101, dated 24 September 2022;
(ii)Drug and Alcohol Abuse 101, dated 25 September 2022;
(iii)Emotional Healing 101, dated 18 October 2022;
(iv)Domestic Violence 101, dated 11 November 2022;
(e)Certificate of Course Completion;
(v)Basic English Speaking Skills 22 September 2022;
(f)IHMS Reports;
(g)STARTTS: NSW Service for Treatment & Rehabilitation of Torture and Trauma Survivors (various dated reports);
(h)Evidence of attempt to track family in Myanmar (RED CROSS);
(i)Evidence of Employment:
(vi)Email from Payroll Department Booktopia Pty Ltd re Australian Super membership 50-54 Version 1
(vii)Email regarding payment summary 2018-2019 • Various payslips
(j)Pictures of bodily scars from childhood injuries
The Respondent filed the documents in its possession relevant to the making of the reviewable decision, as required by section 501G of the Migration Act (the so-called ‘G documents’) consisting of 175 pages, a Tender Bundle consisting of 201 pages, and a Statement of Facts, Issues and Contentions, dated 1 December 2022.
THE APPLICANT’S CRIMINAL RECORD
The Criminal Record information was contained in a report prepared by the Australian Criminal Intelligence Commission, which was included as normal within the G docs.[16] The 15 recorded offences are as follows:
·common assault (DV) -T2
·stalk/intimidate intend fear physical etc harm (domestic) (2 counts)
·Contravene prohibition/restriction in AVO (Domestic) (10 counts)
·Destroy or damage property <=$2000 (2 counts)
[16] G4/33.
The Magistrate imposed an aggregate sentence in respect of the 15 offences.
Aggregate sentences are provided for under section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). Under the Sentencing Act, a court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any two or more of those offences instead of imposing a separate sentence of imprisonment for each.
A court that imposes an aggregate sentence of imprisonment is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed, and the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. Each of the 15 offences attracted a short indicative sentence, the longest being 4 months.
ORAL EVIDENCE
The Applicant gave oral evidence to the Tribunal. It was apparent that he had little memory of these incidents. He said he was using drugs at the time and his English was non-existent. He confirmed that the relationship with the victim of his offending lasted from 2017 to 2019. They lived in a room attached to a convenience store which they rented from a friend. They were both using drugs and it was an intimate relationship. He told the Tribunal that he started using methamphetamines (ICE) in 2017 or 2018, which coincided with his relocation to Sydney from Melbourne. He said that his former de facto introduced him to drugs. He said that he relied upon her to obtain the drugs. They purchased drugs together and used together. He did not know any other people using ICE. He was using two to three times per week. He said that his de facto would take his bankcard to buy drugs.
The Applicant called Ms. Bodden as an expert witness. She has worked for 10 years as a specialist trauma counsellor with individuals from refugee backgrounds. She is employed by an organisation that provides specialist counselling and support services to survivors of torture and trauma who have come to Australia from overseas and are currently being held in offshore locations. The organisation is affiliated with the Forum of Australian Services to Survivors of Torture and Trauma (FASSTT). Ms Bodden was commissioned by the Applicant’s representative to provide a report.
I accept that Ms. Bodden is qualified to provide opinion evidence relating to the impact of torture upon survivors and the potential impact upon the Applicant. Her assessment of the Applicant, provided in a written report dated 13 December 2022, was as follows.
Assessment:
At time of writing, the counsellor does not know the full extent of the trauma experienced by [ZPRX]. He is in the earliest stages of counselling and is not in an environment conducive to either exploring or recovering from the impact of trauma. However, based on the information [ZPRX] has provided to the counsellor, together with what is well documented about the violent persecution and forced displacement the Rohingya people have been subjected to, it can be accepted that [ZPRX] experienced significant trauma as a child and young person. He was taken from his family as a small child and subjected to harsh treatment in conditions of severe deprivation and insecurity without the protection of his parents. He eventually became the sole breadwinner for his family at an unreasonably young age. It is highly likely that in this context he was both a target and a witness to extreme violence and abuse.
The formative years of [ZPRX]’s childhood development were done so within the context of poverty, violence, a hazardous escape from Myanmar, living undocumented in substandard conditions in Bangladesh and Malaysia, forced displacement and being separated from his family and community. [ZPRX] fled Myanmar at a very vulnerable age, and the impact of his pre-migration, prolonged displacement and post-migration circumstances would have impeded any potential recovery processes. This likely contributed to his reliance on maladaptive coping mechanisms, such as drug use or compelled him to remain in a dysfunctional relationship. In [ZPRX]’s case, his prolonged separation from his family and the pressure to provide for them further exacerbated the negative impact of these experiences. Therefore, it is reasonable to conclude that the environment that he grew up in has affected [ZPRX]’s mental health and that this would have been a significant contributing factor to his offending.
Nevertheless, [ZPRX] has used his time in prison and in immigration detention to reflect on these issues. He acknowledges that his actions were wrong and has stated, “I am ashamed and embarrassed by how I acted.” He feels remorse for the harm he has caused, has taken steps to overcome these difficulties, and intends to live a more meaningful and productive life. While in prison and immigration detention, he has demonstrated his commitment to this by taking courses to address his maladaptive coping strategies. He has focused on finding positive coping strategies such as education classes and fitness. A safe and supportive community environment will enable him to live in a more positive way. He has described insight into the understanding that remaining connected to his community is essential.
Treatment Recommendations
[ZPRX] is highly motivated. He is committed to finding employment and establishing an environment where he can thrive and create a future for himself and hopefully for his family. He has demonstrated considerable resilience and the ability to survive extreme conditions throughout his life. In a safe and supportive environment this resilience will enable him to move in a positive direction, connecting to his strengths and support systems.
[ZPRX] has described close connections to the Rohingya community in Melbourne and having employment in order to support his family is a priority for him. Therefore, part of his ongoing support should include links to employment agencies in the city where he has community connections. If he is released, it is planned that he will live with his friend, [AK], who has also agreed to offer him employment at his construction company. [ZPRX] has demonstrated a willingness to engage in the therapeutic process and has actively participated in counselling sessions. He has described counselling with OSSTT as beneficial and stated he would welcome a referral to Foundation House, a sister organization to OSSTT which provides specialist trauma counselling for individuals from refugee backgrounds in Melbourne. He further stated that while he was in Villawood, he attended counselling appointments with STARTTS (another sister organization to OSSTT) and found these useful.
Summary
Despite the significant difficulties and trauma [ZPRX] experienced as a child and young man, his insight and deeply felt remorse for his offending behaviour, together with a strong desire and commitment to leading a positive and productive life, have helped him overcome many of the issues that have led to his current predicament and created a clear pathway and foundation for recovery.
However, the uncertainty of his current situation, including the threat of indefinite detention, is placing an enormous strain on his mental health and well-being. Moreover, any forced return to Myanmar would expose him to extreme risk due to his ethnicity. Under these circumstances, his ability to recover and build toward a positive future is inevitably compromised. The treating counsellor believes that if [ZPRX] can be offered stability and opportunity, he will embrace this second chance and become a fully contributing and valuable member of the Australian community.
Ms Bodden’s oral evidence was essentially in conformity with her written report.
The Discretion Under Subsection 501CA(4)
In exercising the discretion under subsection 501CA(4), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction).[17]
[17] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Part 1 of the Direction sets out the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. (emphasis added)
PRIMARY AND OTHER CONSIDERATIONS
Part 2 of the Direction is entitled Exercising the Discretion. There are four primary considerations (paragraph 8), and four ‘other’ considerations (paragraph 9) that must be considered ‘where relevant to the decision’. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) Australia’s non-refoulement obligations, the extent of impediments if removed, the impact on victims, and links to the Australian community.
The factors mentioned in the Direction are not exhaustive. There may be other considerations that apply in a particular case. Moreover, the Tribunal is required to consider the legal and practical consequences in affirming the decision under review.[18]
[18] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [8]-[10], [17], Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]-[88].
The Direction also contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that a non-primary consideration may be preeminent in some circumstances.[19]
[19] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Paragraph 8.1(1) of the Direction states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community
Paragraph 8.1(2) provides that decision-makers should give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending. Crimes of a violent nature against woman are viewed very seriously by the Australian Government and the Australian community. The Applicant’s offending falls into this category. Such offences must be regarded very seriously, regardless of the sentence imposed.
Under paragraph 8.1.2(1) the Tribunal is required to consider the Government's view 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.
Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal 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 noncitizen re-offending; 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).
The Tribunal has taken account of the harm that would arise should the Applicant engage in any further action of a similar kind. In essence the record shows an assault, two offences of intimidation, numerous AVO contraventions committed within a short space of time, and a minor property offence. As required by the Sentencing Act, the learned magistrate identified the indicative sentence applicable to each offence. The indicative sentences ranged between one and four months.
I am required to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, considering:
i. information and evidence on the risk of the noncitizen re-offending; 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).
The Tribunal was provided with two Reports bearing on this issue.
The first was a sentencing assessment report dated 28 October 2020 prepared by a senior community corrections officer for the Burwood Local Court. The relevant charges to be considered included stalk intimidate, property damage, AVO contraventions, and common assault. [20] The recommendations were as follows:
Assessment and recommendations
Risk assessment
Due to [ZPRX]’s T2 LOW risk of reoffending, if the court makes a supervised order, Community Corrections will suspend [ZPRX]’s supervision in accordance with clause 1891 of the Crimes (Administration of Sentences) Regulation 2014. [ZPRX] should telephone the Parramatta Community Corrections Office within 7 days to receive instructions about their obligations while supervision is suspended. Community Corrections may activate supervision if [ZPRX] is rearrested, information is received that his risk of reoffending has increased, or he breaches the suspension obligations.
Recommended order conditions
Community Corrections considers that no conditions other than a supervision condition are required to implement the supervision plan above. Community service assessment Community Corrections has assessed [ZPRX] as suitable to undertake community service work. Community Corrections can provide the equivalent of up to 21 hours of work per month. If a community service work condition is made, [ZPRX] should telephone the Parramatta Community Corrections Office within 7 days. [21]
[20] G19/130
[21] G19/132
The second is the report by Ms Bodden referred to above. In essence, she found that the Applicant was deeply remorseful for his conduct, and highly motivated to reconnect with and support his separated family.
I note that the Applicant completed various courses while in detention relating to anger management, drug and alcohol abuse and Basic English. I have taken these completions into account.
In terms of protective considerations, I do not think that the Applicant poses an elevated risk to the Australian community, or to his ex-partner. His criminal record does not show any general criminal proclivity. His offending arose within the context of a dysfunctional drug affected relationship. The opinion contained in the Assessment Report, and supported by Ms Bodden, is that the risk of reoffending is low. His prospects of achieving social re-integration and rehabilitation are good. Although he has no formal qualifications, he has demonstrated a capacity for paid employment.
The Applicant undoubtedly engaged in family violence. This includes not only a domestic assault but numerous contraventions of AVOs. Invariably, evidence of family violence will count strongly against an Applicant whose visa has been mandatorily cancelled. There was a suggestion by the Respondent that the Applicant had sought to blame his ex-partner or minimise the gravity of his conduct. For example, he said that he did not use drugs prior to meeting her. According to the Applicant, she introduced him to drugs. He said that she stole from him, and that he was trying to recover his money. He said that he slapped her because she insulted his mother. The Respondent’s representative said that in stating such things he was seeking to minimise his responsibility. I did not share this impression. I think that he was seeking to explain his actions to those seeking answers and context for his behaviour. He was trying to provide an explanation as to why he behaved in a particular way, and I did not see it as an attempt at justification. He showed considerable remorse for his actions.
I consider his risk of reoffending to be low. At the time of the hearing, he had been deprived of liberty for approximately 30 months. He is aware that should his visa be cancelled on character grounds he is facing the prospect of indefinite detention. This should serve as a powerful factor for the protection of the Australian community.
The Applicant has not identified any minor children who may be affected by a decision to remove him from Australia.
In view of the overall circumstances of his offending, I do not think that the expectations of the Australian community weigh strongly against him, but they do weigh against him.
Other Considerations:
The Tribunal is required to consider various other considerations under Direction 90. These relate to:
(a)International non-refoulement obligations: OC1
(b)The extent of impediments if removed: OC2
(c)The impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
The Applicant is accepted as a stateless Rohingya person from Myanmar and his cancelled protection visa was granted on that basis. It is unnecessary in these proceedings to rehearse the hair-raising circumstances of his childhood. The Respondent does not contest that he was exposed to the most appalling human rights abuses which included physical wounding and neglect. His early childhood, including his travel on his own as a young child from Myanmar to Bangladesh and then on to Malaysia, are simply remarkable. In essence he was deprived entirely of a normal childhood.
Although his visa has been cancelled, he remains a person to whom Australia owes international protection obligations. As such, recent amendments to the Migration Act indicate that he cannot be involuntarily removed from Australia.[22] The Applicant was advised to this effect by the Department in a letter dated 26 July 2022. The letter stated:
The Department has identified you as an unlawful non-citizen for whom a protection finding was made in the course of considering your application for a protection visa, and the exceptions under section 197C(3)(c) do not apply to you. That means you cannot be removed to Myanmar even if the decision maker for the purposes of section 501CA(4) decides not to revoke the original decision and you remain an unlawful non-citizen as a result. Consequently, a non-revocation decision would mean you must remain in immigration detention unless you are granted another visa or you can be removed to a country other than Myanmar. This means that your detention may continue for an indefinite period.
[22] Migration Act 1958 (Cth), subsection 197C(3).
The Respondent contends:
Importantly, given there is a ‘protection finding’ for the purposes of s 197C of the Act, by virtue of s 197C(3)(b) of the Act, the Tribunal should find that the applicant will therefore not be liable for removal to Myanmar even if his visa cancellation were not revoked because his removal is not required or authorised. The Minister contends that this consideration therefore weighs neutrally.[23]
[23] RSFIC, para 50.
I agree that because there is no possibility of his involuntary return to Myanmar, the possibility that Australia may breach its obligations under international law relating to non-refoulement can be excluded from consideration. For the same reason, it would be artificial for the Tribunal to speculate as to what impediments he may encounter if removed to his home country.
The Applicant has no family in Australia. However, he provided references from friends and employers. He appears to enjoy the support of the Rohingya community in Melbourne and has provided a reference to which I have had regard from his local religious leader.
He has a reasonable employment record in Australia, given his lack of formal education. He provided pay slips for some of his employment. He has an offer of employment from a friend, but he is in Brisbane. His pro-social and employment capacity weighs mildly in favour of revoking the cancellation decision.
In determining whether the Tribunal can be satisfied that ‘there is another reason why the original decision should be revoked’, pursuant to s 501CA(4)(b)(ii) of the Act, the Tribunal must consider the legal consequences of the decision.[24] Having regard to sections 197C of the Act, the legal consequence of not revoking the cancellation of the Applicant’s visa is that he will not be liable to be removed from Australia.
[24] DLJ18 v Minister for Home Affairs [2018] FCA 1650 at [5] (Flick J) and [28] (Bromberg J); BMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [8]-[10], [17]; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84]-[88].
As a person who is owed international protection obligations and who cannot be lawfully removed from Australia, the Applicant is likely to experience prolonged detention. I note that the Respondent’s SFIC contains the following passage:
Legal consequence of a decision to affirm
51. The Tribunal is required—separate from its consideration of non-refoulement obligations under Direction 90—to consider and engage with the immediate legal consequences of its decision. The Federal Court in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 has recently stated that the other consideration of non-refoulement obligations should be separately considered to the legal consequence of the possibility of prolonged detention.
52. The applicant would continue to be liable to be detained in accordance with s 189 of the Act. The consequence of a decision to refuse to grant the visa will therefore be that the applicant remains in immigration detention until such time as the Minister’s non-compellable powers under ss 195A or 197AB are exercised, the applicant is resettled in a safe third country or until one of the situations in s 197C(3)(c) apply. That is, the decision in which the protection finding was made is quashed, the Minister decides that a protection finding would no longer be made, or the applicant requests voluntary removal to Myanmar. The consequence of this is that the applicant’s detention would be prolonged for a period while any such process of consideration is carried out.
53. The Minister acknowledges that the Tribunal should take into account the applicant’s loss of liberty during the period until one or more of the above administrative processes are carried out.
54. The Minister accepts that the legal consequences of the decision, being continued detention of the applicant for an unknown period, weighs against non-revocation. However, the Minister contends that, in the circumstances of this case and given the applicant’s offending history, two primary considerations outweigh any considerations in favour of the applicant, including the prospect of continued detention. [25]
[25] RSFIC, 51 – 54.
CONCLUSION
Factors against revocation of the cancellation decision include the safety of the community, the existence of family violence and the expectations of the community. Factors in favour of revocation include his links to the Australian community and the virtual certainty of prolonged detention in immigration detention if his visa remains cancelled. Three of the primary considerations weigh against the Applicant, but they do not predominate in this case.
The Applicant faces the prospect of prolonged and uncertain detention should the decision be affirmed. He is a young man with no criminal record but for the outburst of violence during a dysfunctional drug affected relationship. I am satisfied, on the basis of materials before the Tribunal that the prospect of recidivism is low, and I would say, exceedingly low. There is no forensic material before the Tribunal to suggest otherwise.
The Applicant has been in prison or detention since 27 May 2020. He was released to parole on 27 March 2021, and then transferred to immigration detention. This period of loss of liberty amounts to approximately 30 months. The deprivation of liberty he has experienced is already well in excess of the punishment imposed upon him for his behaviour. Given my assessment of the nature and gravity of his offending, his further detention for a prolonged and possibly indefinite period could not reasonably be justified.
Subsection 501CA(4) of the Act provides:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.As noted in the earlier part of these reasons, the decision in Pearson applies to the facts of this case, but my decision was rendered the day before the decision was handed down. Having applied the Direction to the factual circumstances of the case, I am satisfied in terms of paragraph b(ii) that there is ‘another reason’ why the original decision should be revoked, even if the Applicant is regarded as not passing the character test as defined by section 501.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 6 October 2022 not to revoke the mandatory cancellation of the Applicant’s Class XA, Protection (Subclass 866) visa, is set aside. In substitution, it is decided that the mandatory cancellation of the Applicant’s Class XA, Protection (Subclass 866) visa is revoked.
I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor Fairall.
........................................................................
Associate
Dated: 19 January 2023
Date(s) of hearing: 19 & 20 December 2022 Solicitors for the Applicant: Ms M. Mamarot Solicitors for the Respondent: Mr A. Chan APPENDIX A
Aggregate sentence Offence Indicative Sentence
H73081476 - sequence 1 - stalk/intimidate 3 months (allowing no discount for PG)
H73081476 - sequence 3 - common assault 1 month (allowing no discount for PG)
H73364156 - sequence 3 - contravene AVO 2 months (allowing 10% discount for PG)
H73364156 - sequence 4 - possess equipment administer drugs S10A
H75157539 - sequence 4 - contravene AVO 1 month (allowing 10% discount for PG)
H75553979 - sequence 4 - contravene AVO 2 months (allowing 10% discount for PG)
H75553979 - sequence 5 - contravene AVO 3 months (allowing 10% discount for PG)
H75553979 - sequence 6 - contravene AVO 2 months (allowing 10% discount for PG)
H75553979 - sequence 7 - contravene AVO 2 months (allowing 10% discount for PG)
H75553979 - sequence 8 - contravene AVO 3 months (allowing 10% discount for PG)
H75553979 - sequence 9 - contravene AVO 3 months (allowing 10% discount for PG)
H75553979 - sequence 10 - contravene AVO 2 months (allowing 10% discount for PG)
H144525001 - sequence 1 - stalk/intimidate 4 months (allowing 10% discount for PG)
H144525001 - sequence 2 - contravene AVO 4 months (allowing 10% discount for PG)
H144525001 - sequence 3 - destroy/damage property 4 months (allowing 10% discount for PG) [26]
[26] TB2/137.
0
7
0