FEDERAL COURT OF AUSTRALIA

DAF18 v Minister for Home Affairs [2018] FCA 1367

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings be dismissed.

2.    The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 8 August 2016, a delegate of the Minister decided under s 501(3A) of the Migration Act 1958 (Cth) to cancel the applicant’s humanitarian class XB subclass 202 global special visa. The applicant received notice of the cancellation on 10 August 2016 and through his solicitor migration agent made representations to the Minister on 7 September 2016 seeking that he exercise his discretion under s 501CA(4) of the Act to revoke the original decision.

Background

2    The applicant had a substantial criminal record that included sentences for imprisonment totalling more than 12 months. As a result, the Minister was not satisfied that the applicant passed the character test. Therefore one of the alternative bases (in s 501CA(4)(b)(i)) on which he could revoke the cancellation decision could not be met. In his statement of reasons for his decision dated 1 May 2018, the Minister personally then considered whether there was another reason why the original decision should be revoked for the purposes of s 501CA(4)(b)(ii).

The Minister’s Decision

3    In his statement of reasons, the Minister said that he assessed all of the information set out in attachments to the Departmental submission, which included the applicant’s extensive criminal history and a number of sentencing remarks for numerous, but not all, of the offences on which he was sentenced.

4    The Minister said that he had considered the reasons and representations that the applicant had provided as to why the cancellation decision should be revoked, including:

    the adverse effect his removal would have on his three Australian minor citizen children who need him to provide the love, care, and stability of a father;

    the adverse effect his removal would have on his Australian citizen wife, who has indicated she is likely to become depressed and suicidal if he were removed from Australia;

    his entire extended family is in Australia, they would be willing to provide him with practical support in the community, and would be devastated by his removal;

    his contribution to the community through his employment;

    he is a stateless person with no right to return to Iraq, and his life would be at risk if he were returned to any part of the Middle East;

    he is committed to turning his life around and dedicating himself to supporting his family;

    his traumatic upbringing in the Middle East and drug use have contributed to his offending behaviour; and

    he is remorseful for his behaviour and intends to complete interventions in the future that will reduce his risk of reoffending.

5    The Minister’s statement then considered those matters. He approached consideration of the best interests of the applicant’s three minor children, who at the time of the decision were aged two, four and five, and his 27-year-old wife, on the basis that he should treat the best interests of those three children as a primary consideration. He concluded that it was in the best interests of the three children for the original decision to be revoked. However, the Minister noted that since the applicant’s first custodial sentence commenced on 25 August 2014, he had spent all but six months in prison or immigration detention, and that that period had covered much of his children’s lives. He noted that the applicant had last been in the community from 1 September 2015 to 15 December 2015 before returning to some form of detention that continued thereafter.

6    A considerable number of the applicant’s criminal convictions related to incidents of domestic violence against his wife, and on one occasion, while his wife was holding a baby. The Minister noted that the courts had seen fit to include in apprehended violence orders the children as protected persons on occasion, and that he had been convicted repeatedly of domestic violence and other offences against his wife who was their children’s mother. He considered that should the couple continue in their marital relationship, it was likely that the dysfunctional aspects of the relationship might have an adverse effect on the children’s upbringing.

7    In coming to his conclusion that it was in the best interests of the three young children to revoke the decision to cancel the applicant’s visa, the Minister said that he had done so “with some caution”, and that the applicant’s offending behaviour against their mother had had a detrimental influence on them. The Minister also found that it was in the best interests of two of the applicant’s Australian citizen brothers who were minors that the original decision be revoked.

8    The Minister noted that both the applicant and his uncle had submitted that the applicant had suffered a lot in Iraq after the fall of Saddam Hussein’s regime, and that as a teenage boy he had been kidnapped and tortured, because he was a Palestinian Muslim Sunni. Indeed, one of the bases for the grant of the applicant’s now cancelled visa, and similar visas granted to his family, was country information about the situation of Palestinian refugees in Iraq which supported both the applicant’s fears of how he would be treated were he to be returned, and his claims about what had happened to him while he was in Iraq.

9    Crucially, the Minister said that he was aware that the statutory consequence of a decision not to revoke the cancellation was that the applicant would then be an unlawful non-citizen whose stateless status meant that it was not reasonably practicable to remove him from Australia and that he would continue to be detained in accordance with ss 189 and 196 of the Act, unless the Minister granted him a visa under s 195A. The Minister said that he had had regard to the existence of Australia’s non-refoulement obligations and his finding that the applicant was stateless, and had carefully weighed those factors against the seriousness of the applicant’s criminal offending in making his decision whether to revoke the original decision.

10    The Minister then considered the strength, nature, and duration of the applicant’s ties to Australia, taking into account that he had been here for eight years, having arrived in April 2009 when aged 17. He noted that the applicant had commenced criminal offending in 2012 and had had frequent convictions for criminal offences, including domestic violence offences and other violent offences. The Minister found that Australia had a low tolerance of criminal conduct for people such as the applicant who had been participating in and contributing to the community only for a short period.

11    He noted that both the applicant’s parents were Australian citizens, as were two of his adult siblings, and that he had a large extended family who resided in Australia, some of whom were also Australian citizens. He considered the material before him in relation to the applicant’s relationship with his wife and found that she was a vulnerable person. He noted that the applicant’s wife had not made further submissions since the applicant’s most recent offences, although he noted from the sentencing remarks of 9 August 2017 that the wife had requested that the Court vary the apprehended violence order against the applicant made on that date to allow him to have reasonable access to the children and that the order prohibiting him from seeking to locate her, should also be removed.

12    The Minister found that despite the apparent volatility evident in their relationship, the couple shared three children and that in light of the applicant’s intentions to be a good father and partner, the Minister acknowledged that the wife was likely to suffer practical harm by his removal from Australia, including serious psychological harm. He accepted that if the visa remained cancelled, this would cause practical and emotional hardship for the applicant’s immediate family in Australia, especially his wife.

13    The Minister had regard to the short period in which the applicant had been employed, noting that this limited his contribution to the community, albeit that it was small and took that into account.

14    He then considered the protection of the Australian community and dealt in his reasons with the various offending conduct that had resulted in criminal convictions that the appellant had committed. He found that, taking into consideration the judicial findings, the sentences imposed by the courts, and in particular, the applicant’s repeated domestic violence convictions, his offending was serious. The Minister then discussed whether the applicant posed a risk to the Australian community through reoffending, taking into account any mitigating or causal factors in the offending, steps the applicant had undertaken to reform and address his behaviour, his overall conduct in custodial, non-custodial, and immigration detention environments, together with his insight into the offending.

15    He gave consideration to the applicant’s upbringing in Iraq where he had been exposed to violent incidents on an almost daily basis, and his kidnapping and torture at the age of 15, together with his having been raped by a prison guard in Syria. The Minister acknowledged that those traumatic experiences were likely to have had a long-term effect on the applicant. He noted that a pre-sentence report of 27 July 2016 recorded that the applicant attributed his violent offending to his use of illicit drugs and that his wife had also attributed drug abuse to that conduct, but that she was supportive of the applicant attending counselling.

16    The Minister considered that the applicant’s traumatic experiences prior to him coming to Australia, along with his drug use and lack of employment since that time had all contributed to his offending behaviour and that his overall history of offending, especially his repeated domestic violence offending, were indicative of deeply ingrained anti-social values and attitudes. He also considered the applicant’s compliance with his parole conditions from February 2015, noting that the applicant’s parole had been revoked, partially due to his poor compliance with supervision requirements. The Minister noted that when sentenced on 28 August 2015, the magistrate had given the applicant a community-based sentence, suggesting that he take advantage of the opportunity being extended to him to address the issues underlying his offending, including domestic violence counselling. The magistrate told him:

You’re a young man so it’s hoped that you’re not going to spend the rest of your life in and out of prison for these kinds of offences. This is your opportunity.

17    The Minister noted that the applicant had continued to commit offences since being afforded that opportunity, including against his wife, and had been sentenced to terms of imprisonment on three subsequent occasions. He noted that when being sentenced on 29 July 2016, the applicant had given evidence to the effect that he wanted to return to live with his wife and children and that the sentence would deter him from committing further offences, but that the applicant had since been sentenced for further offending against his wife.

18    He found that the applicant had been afforded numerous opportunities under supervision to address the issues that had contributed to his offending behaviour by way of his release to parole and the imposition of community-based sentences. The Minister noted with concern that not only had the applicant not availed himself of those rehabilitation opportunities, but he had committed further offences while subject to conditional liberty. He had regard to the applicant’s behaviour while in both criminal custody and immigration detention, and the fact that the applicant had been unable to comply with prison behavioural requirements as recently as September 2017.

19    He also noted that the applicant had responded aggressively and was verbally abusive to immigration detention staff on an occasion in February 2017, and that while the applicant had expressed remorse for that behaviour, which the Minister accepted as genuine, he found that aggressive response to be concerning in light of the applicant’s history of violent offences. He took into account the applicant’s conviction on 9 August 2017 that arose from criminal offences that the he had committed while in immigration detention in April 2017, and that these had occurred subsequently to his having made representations the previous year seeking revocation of the cancellation decision. The Minister considered that the most recent offending indicated that the applicant had been unable to refrain from offending behaviour, despite being aware of its consequences for his efforts to remain in Australia.

20    He also found that the applicant had a history of noncompliance with court orders such as good behaviour bonds and apprehended violence orders. He noted that in sentencing the applicant on 29 May 2015 the magistrate on that occasion had stated that the applicant’s behaviour “showed someone completely unmoved by court orders”, a finding that the Minister adopted. The Minister considered that the applicant’s history of breaching orders imposed by the courts and other sentencing authorities demonstrated a lack of respect for authority and that this increased his risk of further reoffending. The Minister accepted the applicant’s expression of remorse for his offending behaviour in the past as being sincere, but noted that the applicant had continued to commit serious criminal offences since making that statement and did not find the applicant’s remorse to be an effective deterrent against his further offending.

21    He gave consideration to the supportive submissions from the applicant’s uncle, who had indicated that his extended family were willing to do more to help him to avoid further offending, including finding the applicant employment, spending time with him and including him in the Arabic community. But the Minister noted, the applicant had resided with his parents in the past and that had not appeared to deter him from offending. The Minister accepted that engagement with his wider family and participation in the community might reduce that risk of further offending, but he had little confidence that the applicant would avail himself, in light of his previous failures, of the opportunity provided by his extended family and wider community. He also accepted that employment would reduce the applicant’s risk of reoffending, but concluded that he had little confidence in this because of the applicant’s poor employment history to date.

22    The Minister found that the applicant had expressed remorse for his behaviour while displaying, at the same time, a lack of insight into his responsibility for his offending and the harm he had caused others. He accepted the applicant’s claims that he intended to refrain from further offending and to be a good father to his children, but found, that to date, the applicant had not displayed the capacity to act on those intentions and had, instead, continued to commit serious offences against his wife. The Minister noted that the probation and parole service had assessed the applicant as being a moderate risk of reoffending and that his ongoing offending and other behavioural issues in the controlled environments of prison and immigration detention gave rise to significant concerns about the applicant’s ability to avoid further offending in the unsupervised environment of the community.

23    Taking all relevant matters into account, some of which I have summarised above, the Minister found that there was an ongoing likelihood that the applicant would reoffend and that if that happened it could result in physical and or psychological harm to members of the Australian community. He also considered, the fraud and property offences that the applicant had committed and found that any further offences of that kind could result in financial loss to members of the Australian community and that his further driving offences could place other road users in Australia at risk of significant physical harm.

24    The Minister said that he had considered all relevant matters, including assessing whether the applicant had made representations in accordance with the invitation for the purposes of s 501CA(4), in assessing whether he was satisfied that, first, he had passed the character test, or, secondly, whether there was another reason why the mandatory cancellation should be revoked for the purposes of s 501CA(4) and all the evidence available to him, including evidence provided by or on behalf of the applicant. The Minister said that he had given primary consideration to the best interests of the three minor children, along with his two minor brothers, and found their best interests would be served by the revocation of the original decision. He found, however, that in considering whether he was satisfied there was another reason why the original decision should be revoked, he gave significant weight to the serious and, at times violent, nature of the crimes the applicant had committed, including domestic violence, and that the Australian community could be exposed to harm should he reoffend in similar fashion. The Minister could not rule out the possibility of further reoffending.

25    The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and minor brothers as a primary consideration and any of the other considerations that he had discussed earlier in his reasons, including the applicant’s residence, family ties, claims to international non-refoulement obligations, statelessness, employment and the hardship that the applicant, his family and social networks would endure in the event that the original decision were not revoked and he was subject to indefinite detention.

26    Having given full consideration to all of those matters, the Minister was not satisfied that there was another reason why the original decision to cancel the visa should be revoked for the purposes of s 501CA(4)(b)(ii).

The applicant’s submissions

27    The applicant challenged the Minister’s decision on the basis set out in his originating application, that the Minister had not mentioned his torture and had failed to have regard to the Convention against Torture, notwithstanding that he had accepted that the applicant had been kidnapped and tortured in Iraq when aged 15 and had been raped in Syria by a prison guard for overstaying his visa there. I explained to the applicant that the Court could not exercise the Minister’s powers, but was concerned to determine whether there were some legal error in the way in which the Minister had made the non-revocation decision.

28    The applicant emphasised those matters of his life and the evident traumatic impact they had had on him when he made his oral submissions today, as well as, in his lucid written submissions on his application. The applicant acknowledged, both in his oral and written submissions, that he had offended in the past and that he sincerely regretted this bad behaviour. He said that he had received punishment for his criminal offending, but that he had suffered and was continuing to suffer the effects of the deeply traumatising experiences that he had had as a young man in Iraq and Syria. He asked for the Court to exercise its compassion and give him another chance to seek professional help, rather than being left indefinitely in a detention centre.

Consideration

29    The Minister’s discretion under s 501CA(4)(b)(ii) is exercisable where the Minister is satisfied that there is another reason why the original decision should be revoked where, as in this case, the person concerned does not pass the character test. The Minister appears to have taken into consideration all of the matters to which the applicant and his solicitor/migration agent, as well as his uncle, put to the Minister in support of revocation. The Minister also had regard to matters that he considered supported maintaining the cancellation decision itself.

30    The power of the Minister to revoke the decision to cancel the visa is only enlivened if the Minister is satisfied positively that there was another reason why the original decision should be revoked. The Act does not set out any criteria that the Minister must consider when deciding whether he is satisfied that there was another reason why the original decision should be revoked, but, as the Minister noted, he was obliged to, and said that he did, take into account as a primary consideration the best interests of the applicant’s three young children. On the other hand, the Minister was undertaking an evaluative exercise in deciding how to weigh all of the competing factors that affected the applicant and his claim for his visa to be restored. That process of consideration does not appear to me, on the material and submissions, to have involved the Minister committing any jurisdictional error in the way in which he approached his task: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-279 per Brennan CJ, Toohey, McHugh and Gummow JJ.

31    In particular, the Minister expressly acknowledged that the consequence of his decision, were he not to revoke the cancellation decision, would be that the applicant would be likely to be indefinitely detained in immigration detention. That is the legal consequence that the majority of the High Court held does not infringe the judicial power of the Commonwealth and about which the Courts are not able to grant relief: Al-Kateb v Godwin (2004) 219 CLR 562. The Minister, clearly enough, did have regard to, and expressly accepted the fact, that the applicant had suffered the torture and mistreatment that his originating application identified as being the foundation of his challenge to the legal efficacy of the Minister’s decision. The fact that the Minister took those matters into account and, indeed, accepted that they had had a traumatic effect on the applicant, means that those matters cannot be said to be factors that the Minister should have, but did not, take into account in reaching his decision.

32    Ultimately the task for the Minister was to evaluate the factors that told in the applicant’s favour and those that told against him in coming to a view as to whether he was satisfied that there was another reason why the original decision should be cancelled. It is not the role of the Court, however, to usurp the Minister’s function that the Parliament has given him under s 501CA(4) to make decisions about the revocation or cancellation of decisions to revoke visas. The role of the Court is to determine whether the Minister has acted in accordance with law in exercising his power to consider whether he is satisfied or not about there being another reason why the original decision should be revoked.

Conclusion

33    For the reasons I have given, I am unable to detect any legal error in the way in which the Minister approached the making of the decision under review. Accordingly, the application must be dismissed with costs.

Concluding Observations

34    The applicant has been detained for some time in immigration detention in Western Australia or Christmas Island for reasons that are not immediately obvious, given the Minister’s asserted understanding that the best interests of his children would be served by the revocation of the cancellation decision.

35    Clearly, maintaining a stateless person who cannot be refouled to his or her country of citizenship or origin in immigration detention well away from his family and support networks is a matter that may be reviewable for other reasons, in that the manner of detention might cease to have the character of being purely protective and might impose, in those circumstances, a form of punishment. However, by reason of the decision of the majority in Al-Kateb 219 CLR 562, a person in the applicant’s unfortunate position of being stateless and unable to be returned to another country means that this Court, on an application such as this at least, is not able to intervene; cf: Al-Kateb 219 CLR at 584 [44] per McHugh J.

36    It is a matter for the Minister as the Constitutional office holder responsible for the administration of the Act, including the power to detain under ss 189 and 196 persons in immigration detention, as to how and where such detention should occur. Nonetheless, it is disturbing the way that the applicant appears to have been separated from his family who, as the Minister’s counsel acknowledged, were all present in Court today, including his three young children, his wife, and uncle. From what the applicant said today, which is not the subject of this proceeding, he does not appear to have been afforded any treatment for his psychological conditions or assisted with potential rehabilitation to enable him, at some point, to be released into the community if he no longer were to pose the kind of risk that the Minister currently considers exists. I consider that the Registrar should bring these reasons to the Minister’s personal attention.

Associate:

Dated:    5 September 2018