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MBQX and Minister for Immigration and Border Protection (Migration) [2017] AATA 2410 (30 November 2017)

Last Updated: 5 December 2017

MBQX and Minister for Immigration and Border Protection (Migration) [2017] AATA 2410 (30 November 2017)

Division: GENERAL DIVISION

File Number: 2017/5492

Re: MBQX

APPLICANT

And Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal: Deputy President Dr Christopher Kendall

Date: 30 November 2017

Place: Perth

The decision under review is affirmed.

........................[sgd]....................................

Deputy President Dr Christopher Kendall

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) – s 189, s 195A, s 197C, s 198, s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4), s 501E(2), s 501K

CASES

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999

SECONDARY MATERIALS

Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a), (b) and (e), 14.1, 14.2(1), 14.4, 14.5(1)

Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2

1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol

REASONS FOR DECISION


Deputy President Dr Christopher Kendall


30 November 2017

INTRODUCTION

  1. Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of parties to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so.
  2. The Tribunal determined that, in this case, it was appropriate to restrict the identification of the Applicant. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “MBQX”. The Tribunal has also determined that it should not disclose the names of any witnesses or those who provided character references for MBQX.
  3. By application dated 12 September 2017 (G2), MBQX seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), made on 7 September 2017 (G21), refusing, pursuant to s 501CA(4) of the Migration Act 1958 (the “Migration Act”), to revoke the mandatory cancellation of his visa. MBQX’s visa had previously been cancelled pursuant to s 501(3A) of the Migration Act because it was found that he did not pass the “character test” by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state. On review, the Minister’s delegate determined that there were “no other reasons” the original decision should be revoked.

BACKGROUND

  1. A summary of the background facts relevant to this matter was provided by counsel for the Minister in a Statement of Facts, Issues and Contentions dated 2 November 2017. These background facts are not in dispute and provide as follows.
  2. MBQX is a citizen of Zimbabwe and arrived in Australia in 2008 (G29 at 122). He was aged 17 when he moved to Australia. He moved to Australia with his mother, step father and siblings. The family had had difficult time in Zimbabwe and Australia promised them a safer and more secure future.
  3. At the time his visa was cancelled, MBQX held a Class BW Regional Sponsored Migration visa (G18).
  4. MBQX has an extensive criminal history for someone so young. He is now 27 years of age. His criminal offending began in 2010 (two years after arriving in Australia) (G22 at 61) and includes numerous property, stealing, drug and traffic offences for which he has received a number of prison sentences (G25 at 102-103; G24 at 93 and G23 at 84).
  5. In sum, MBQX has 34 convictions as an adult. His most recent, and most serious, offence was committed in 2015. At that time, MBQX was found guilty of aggravated burglary and commit offence in dwelling for which he received a sentence of imprisonment of 2 years and 2 months (G22 at 59).
  6. On 24 April 2012, MBQX was given a formal warning from the Department of Immigration and Citizenship that continued offending might well result in the cancellation of his visa (G30 at 126). Despite this, he continued to criminally offend.
  7. On 21 August 2014, as a result of his continued offending, MBQX was given a second formal warning from the Department of Immigration and Citizenship that his actions might result in the cancellation of his visa (G30 at 123). Despite this, he continued to criminally offend.
  8. On 31 January 2017, MBQX’s visa was cancelled under s 501(3A) of the Migration Act (G3). This was a mandatory cancellation.
  9. On 27 February 2017, MBQX requested revocation of the mandatory cancellation and made representations in support of his request (G5 and G31).
  10. On 7 September 2017, a delegate of the Minister decided, pursuant to s 501CA(4) of the Migration Act not to revoke the mandatory cancellation of MBQX’s visa.(G21).
  11. On 12 September 2017, MBQX applied to this Tribunal for review of the delegate’s decision (G2).

ISSUES

  1. The broad issue for consideration by this Tribunal is whether the discretion in s 501CA(4) of the Migration Act should be exercised in MBQX’s favour having regard to the mandatory considerations identified in Ministerial Direction No. 65 (discussed below).
  2. To determine this broad issue, the Tribunal must decide:

EVIDENCE

  1. This matter was heard in Perth on 17 November 2017 and 22 November 2017. MBQX appeared in person and was represented by counsel Mr Blades. Mr Blades was instructed by Mr Rothstein of Rothstein Lawyers. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers. The Tribunal thanks these legal representatives for the quality of their written and oral submissions. The law in relation to criminal deportations is fast changing and complex. Mr Blades, Mr Burgess and Mr Rothstein were all well versed on the relevant jurisprudence and greatly assisted the Tribunal in better understanding the High Court’s most recent decisions – particularly regarding the law as it relates to Australia’s non-refoulement obligations. The Tribunal also notes and appreciates the respect these lawyers showed each other and those who appeared as witnesses.
  2. The evidence before the Tribunal consisted of:
  3. The Tribunal also heard oral evidence from MBQX, Mr [H] (psychologist) and MBQX’s mother.
  4. The Tribunal has reviewed all of the material before it and highlights relevant materials below.

CONSIDERATION

(i) Does MBQX pass the character test?

  1. The Tribunal must first consider whether MBQX passes the “character test” as that term is defined in s 501 of the Migration Act.
  2. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that 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
... 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 Territory.
  1. Section 501(6) of the Migration Act provides that a person does not pass the character test if:
  2. Section 501(7) of the Migration Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
  1. It is common ground that:
  2. On the evidence before it, the Tribunal finds that MBQX does not pass the character test as defined in the Migration Act.

(ii) Should the Tribunal Revoke the Decision to Cancel MBQX’s Visa?

  1. Having determined that MBQX does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of MBQX’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
  2. Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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.
[Emphasis added].
  1. The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel MBQX’s visa.
  2. When considering MBQX’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).
  3. Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
  4. Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
  1. Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
  1. Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked.
  2. Paragraph 7(1) states:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
  1. Paragraph 8(1) of Direction No. 65 further states:
8. Taking the relevant considerations in account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
  1. Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
  1. Protection of the Australian community from criminal or other serious conduct;
ii. The best interests of minor children in Australia; and
iii. Expectations of the Australian community.

(i) Protection of the Australian Community

  1. Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:

(a) The nature and seriousness of the conduct

  1. Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person’s criminal conduct. Relevantly, these include:
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a) The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b) 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;
(c) The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
...
(g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should be considered to be in the non-citizen’s favour);
...
[Emphasis added]
  1. In assessing the seriousness of MBQX criminal offending, the Tribunal first turns its attention to MBQX’s criminal record, which is as follows (G22):
Court
Court Date
Offence
Court Result
Fingerprint Reference
16 Feb 2017
Fingerprint ID
554189044
Perth Magistrates Court
13 Jan 2017
Possess a prohibited drug (cannabis)
[counts 1] fine: $250
Stealing
[counts 1] fine: $250
Breach of Bail Granted undertaking
[counts 1] fine: $250
Trespass
[counts 1] fine: $1,000
Aggravated burglary and commit offence in place
[counts 1] imprisonment: 3 months concurrent from 13-jan-2017
Perth District Court of Western Australia
22 Dec 2016
Aggravated burglary and commit offence in dwelling
[counts 1] imprisonment: 2 Years & 2 Months cum from 12.6.15
Stealing; s.378 criminal code (wa)
[counts 1] no penalty s.11
Mandurah Magistrates Court
05 May 2015
Without lawful excuse trespassed on a place; criminal code (wa); 701(2)
[counts 1] fine: $600
Mandurah Magistrates Court
03 Jun 2014
Steal motor vehicle (as defined in section 371a criminal code.); criminal code (wa); 378 a
[counts 1] imprisonment; 6 months concurrent from 03-jun-2014 – concurrent
Breach of Bail Granted (fail to appear soon after).; Bail Granted ACT (wa) 1982; 51(2)
[counts 1] imprisonment: 1 month cumulated from 03-jun-2014 – cumulative
Possession of prohibited drugs With intent to sell or supply (cannabis); misuse of drugs ACT (wa) 1981; 6 (l)(a) b
[counts 1] imprisonment: 2 months cumulative from 03-jun-2014 – cumulative
Breach of Bail Granted undertaking; Bail Granted ACT (wa) 1982; 51 (1)
[counts 1] imprisonment: 1 months concurrent from 03-jun-2014.- concurrent
Steal motor vehicle (as defined in section 371a criminal code.); criminal code (wa); 378 a
[counts 1] imprisonment: 2 months concurrent from 03-jun -2014. – concurrent
Mandurah Magistrates Court
02 Mar 2012
Breach of cbo (order of 4.3.11
[spent][counts 1] fine: $250, spent conviction s45 sa
Breach of cbo (order of 4.3.11)
[spent][counts 1] imprisonment: 4 months concurrent from 16-sep-2011, spent conviction s45 sa
Perth District Court of Western Australia
10 Feb 2012
Breach of cond suspended sent (order of 15.7.11)
[counts 1] imprisonment: 10 Months – concurrent
Breach of protective Bail Granted conditions
[counts 1] no further penalty (s.32 sent ACT)
Common assault
[counts 1] imprisonment: 2 Months – concurrent
Stealing from person of another
[counts 1] imprisonment: 2 Months – concurrent
Stealing
[counts 1] imprisonment: 2 Months conc total: 1 yr imp from 16.9.11
Breach of Bail Granted undertaking
[counts 1] imprisonment: 2 Months – concurrent
Common assault
[counts 1] no further penalty (s.32 sent ACT)
Stealing
[counts 1] imprisonment: 2 Months – cumulative
Perth District Court of Western Australia
15 Jul 2011
Breach of protective Bail Granted conditions
[counts 1] fine: $500 (s.32 sent ACT)
Perth District Court of Western Australia
15 Jul 2011
Common assault
[counts 1] no order made: judge decline to sentence (s.32 sent ACT)
Aggravated burglary and commit offence in dwelling
[counts 1] cond susp imp order: 24 Months imp suspended for 18 Months conditions: supvsn and programme
Perth Magistrates Court
01 Jul 2011
Breach of protective Bail Granted conditions; Bail
[counts 1] fine: $500
Mandurah Magistrates Court
03 May 2011
Person who breaches cro/com order without reasonable excuse
[counts 1] fine: $500 (Global)
Person who breaches cro/com order without reasonable excuse
[counts 1] fine: $500 (global)
Mandurah Magistrates Court
04 Mar 2011
Aggravated burglary and commit offence in dwelling; criminal code (wa); 401 (2)(a)
[spent][counts 1] comm based order: 6 months concurrent from 04-mar-2011, spent conviction s45 sa
Stealing; criminal code (wa); 378
[spent][counts 1] comm based order: 6 months concurrent frm 04-mar-2011, spent conviction s45 sa
Mandurah Magistrates Court
14 Apr 2010
Excess 0.008g/100 ml; learner’s permit; method is breath
[counts 1] fine: $750; mdl disqualified: 9 Months – concurrent
Breach other condition of learners permit; learner’s permit
[counts 1] fine: $250
  1. In determining whether MBQX’s conduct should be viewed as “serious”, the Tribunal places considerable weight on the sentencing comments outlined by the courts.
  2. In that regard, it is noted that in sentencing MBQX on 15 July 2011 for aggravated burglary and commit offence in dwelling, breaching bail conditions and assault Sweeney DCJ stated that MBQX’s offence “is obviously a very serious one” (G26 at 113).
  3. In sentencing MBQX to 24 months imprisonment suspended for 18 months, Her Honour described the events in question as follows (G26 at 108):
... you and a mate went to Mr ...’s house at night.
You pushed your way in the door and punched him. You shoved his partner, Ms ..., when she armed herself with a pole before you were both forced out of the house. you forced your way back in by kicking the door open and again you pushed Ms ..., this time causing her to fall over onto the ground...
And then after you were forced back outside again, you smashed the front window as you were leaving...
  1. On 10 February 2012, MBQX was sentenced to 12 months imprisonment for offences including, inter alia, common assault, stealing and breaching a suspended sentence (G22 at 60). In sentencing, Sweeney DCJ briefly described the events in question as follows (G25 at 99 – 100):
On 26 July you stole $140 worth of DVD’s. And you were then bailed on 26 July 2011, bailed to appear in court on 29 July and you breached your bail.
...
and then you offended again on 2 September 2011, stole $25 from a 16-year-old fellow that you put the hard word on or heavied, I think is the current expression, by grabbing his arm and asking whether he had any money on him. You didn’t assault him other than grabbing his arm. You frightened him enough for him to give you the money. And then you stole again other property of substantial value somewhere on about 14 or 15 September.
All of this whilst you’ve breached your bail, you’re on the run, in a sense and you’ve breached your conditional suspended imprisonment order.
  1. It is noted that in sentencing MBQX on 10 February 2012 Her Honour stated that “suspended imprisonment orders are very, very serious and they must be observed” (G25 at 102).
  2. On 3 June 2014, MBQX was sentenced to 9 months imprisonment for offences including, inter alia, steal motor vehicles, possess drugs with intent to sell or supply (cannabis) and breach of bail (G22 at 60). In sentencing, the prosecutor briefly described the events in question as follows (G24 at 89 – 90):
With breach of bail, on 4 March 2014 the accused appeared in this court and was further remanded on bail to appear here on 8 April. The Accused has failed to appear or as soon as practicable...
And for the steal motor vehicles, between 5 pm Saturday, 12 April 2014 and 7.30am Monday, 14 April 2014, a burglary occurred at the _________ Motor Company in ... During this burglary, a silver BMW 1 Series was stolen from the car yard, along with two other vehicles and several sets of car keys for other cars within the lot. Between 14 April 2014 and 21 April 2014 the accused to possessions of the Stolen BMW ...
And during those same dates on the [sic] 5 pm 12 April and Monday, 14 April, at about 9 am on 14 April 2014, the accused drove the stolen Ford Explorer from ... The accused, knowing that the vehicle was stolen, took the vehicle off road into the bush with several unknown passengers.
...
At about 9.55pm on Friday, 27 September 2013, the accused was a passenger in a vehicle located on ... The vehicle was stopped. The driver of the vehicle was interviewed. Whilst the interview was being conducted, a strong cannabis odour could be smelt from the vehicle. The accused was subject to a search where cannabis was located on him. The total weight was 28.76 grams that had been divided up into small clip seal bags.
  1. On 22 December 2016, MBQX was sentenced to 2 years and 2 months imprisonment for aggravated burglary and commit offence in dwelling and stealing. A summary of the circumstances of these offences was provided by counsel for the Minister in a Statement of Facts, Issues and Contentions dated 2 November 2017 (R1). These facts were not disputed and provide as follows:
    1. ... on 10 June 2015, the applicant attended the victim’s house with a number of others and noticed a gun safe in her bedroom. A plan was formed to rob the safe. The victim was distracted and the applicant and an accomplice attended to break into the safe while two children were in the house. When they could not break into the safe they broke into a wooden chest and stole jewellery worth approximately $20,000. The applicant was arrested by police running away from the house. The sentencing judge found that the offences were serious as the applicant knew, or ought to have known, that there were children present in the home and a significant degree of planning was involved (G23/68).
  2. It is noted that in sentencing MBQX on 22 December 2016 Stewart DCJ stated that “all home burglaries are treated seriously by the courts. People are entitled to feel safe in their own homes” (G23 at 68). Her Honour wrote:
The seriousness of your offending is demonstrated by the following factors in my view. That you and Mr Curry were in company with each other. That immediately before the commission of the offence you knew or ought to have known that there was another person in that home. As I said, there were two children in the lounge room.
There was a significant degree of planning involved in the offending particularly between you and Mr Curry. I’ve already set that out in my reasons this morning. There was theft of valuable property. The victim estimates her stolen property was worth around $20,000.
She wasn’t able to determine the value of some of the items as they were given to her. A significant amount of her jewellery has never been recovered. The jewellery was not insured and she has suffered a significant financial loss. You heard her when she gave evidence at trial.
Some of the missing jewellery was sentimental and had been given to her by deceased relatives as you all heard and therefore irreplaceable. Damage was caused to the victim’s property during the offending, namely to her gun safe, the walls surrounding the gun safe and her camphor wood chest.
The offending had a significant effect on the victim which was clearly evident during her evidence at trial.
  1. These comments reflect considerable concern on the part of the judiciary about MBQX’s conduct and by any standard evidence serious criminal conduct on his part.
  2. The Tribunal also notes that MBQX’s most recent offences were committed despite having been warned by the Department in 2011 and again in 2014 of the possible negative migration consequences if he were to seriously reoffend.
  3. Further, MBQX has received sentences of imprisonment in relation to 19 of his offences and of his many offences several are for breaching bail or breaching community based orders. This is of particular concern to the Tribunal as it reflects disregard for the law and a degree of indifference that cannot be excused. This is discussed further below.
  4. Overall, taking into account the nature of his offences (some of which are crimes of violence and others which are drug related), the sentences imposed despite MBQX’s young age, the comments of the sentencing judges, and the specific guidance and principles set out in Direction No 65, counsel for the Minister contended that the nature and seriousness of MBQX’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant’s visa. The Tribunal agrees.
  5. MBQX has a substantial criminal record including convictions for aggravated burglary and commit offence in dwelling, stealing, common assault, breach of community based order, breach of bail, breach of condition of suspended sentence, steal motor vehicle, possession of stolen or unlawfully obtained property, trespass, and possess prohibited drug with intent to sell or supply (cannabis). This is an extraordinary criminal record for someone so young. The offences for which he was convicted are clearly serious and of the sort identified in Direction No 65.
  6. In the circumstances, the Tribunal has no alternative but to find that MBQX’s serious criminal record weighs heavily against the revocation of the decision to cancel his visa.

b) The risk to the Australian community should further offences be committed.

  1. Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

[Emphasis added]

  1. In relation to the risk to the Australian community should MBQX commit further offences or engage in other serious conduct, the Tribunal notes the following submissions made on MBQX’s behalf in a Statement of Facts, Issues and Contentions dated 17 October 2017 (A1):

3.5.11 It is contended that the likelihood of Applicant engaging in further criminal or other serious conduct is mitigated by:

(a) The extremely supportive and close knit family with whom he will live if the revocation of visa is cancelled;

(b) His “track record” of no drug or alcohol content evidenced by urine analysis since mid-2015 despite its availability in prison;

(c) His willingness to participate in ongoing rehabilitation in custody and also recommencement of counselling with Mr [H] clinical psychologist who has agreed to take Applicant on as a patient if he is released and work with him to reinforce and consolidate the gains already made by MBQX;

(d) The above, it is contended, would allow confidence to be expressed that MBQX be permitted to remain in Australia and would obey Australian laws and not reoffend;

(e) The change in his physical appearance and his personal demeanour in his commitment to change. This is as evidenced by those who have been visiting him over the years of his imprisonment and detention.

3.5.12 Despite evidence of the improvements attained by him it is conceded that his past criminal conduct may weigh against him. It is contended, however, that MBQX is capable of improved behaviour and making substantial changes in his life and that the risk of reoffending is mitigated by the factors set out above.

4. Risk of reoffending

4.1. On balance, having regard to the General Guidance and Principles in Direction 65, and to the matters set out in s 13.1 and 13.1.1, it may, at first blush appear that his efforts to turn his life around are outweighed by the cumulative effect of his recidivism and that the seriousness of the Applicant’s offending conduct weighs against revoking cancellation of his visa. We contend that consideration should be given to the evidence that the “triggers” of alcohol and drugs have been overcome and should favour revocation.

  1. MBQX has expressed remorse for his actions and was visibly distressed before this Tribunal when discussing his past criminal record. He is clearly ashamed that he has brought shame on his family and community. This is also reflected in the various written statement he has provided to the Tribunal (G31, G33, G36 and G42). The Tribunal notes, in particular, MBQX’s written statement dated 1 March 2017 (G33), which provides:
I have written this letter to explain why I am in this situation and what lead me to being in jail right now. I hope who ever is reading this could try to understand that I am not a bad person but I have made bad choices like using drugs and ending up in jail. I am not going to make excuses for the bad things I have done because at the end of the day I made the wrong choices alone. I am so disappointed and scared that its taken me so long to realise what I do effects other people.
Family and Background
I am 26 years old and am the eldest in my family. I have a younger sister and brother. My mother and father have sacrificed everything to bring my family to Australia for a better life. My whole family are Christians and good people. My parents are very strict law-abiding citizens. My mother is an accountant and Dad is a mechanic. ... in ... sponsored my father as a mechanic and he brought the family with him. My mother is a very loving person who stands up for what is right and really keeps our family together. My younger sister is in University and is really smart and beginning to start her journey now as an adult. My younger brother is 16 years old and is one of most [sic] kindest persons I’ve met. My family is all I have and don’t know how I could live without them. I am still young at heart and healthier as ever [sic]. I completed my education in Africa and had a good upbringing thanks to my families strict nature. My parents made sure we went to school, tried to make sure we did not see a lot of the violence and poverty in Africa. We struggled with regular electricity shortages and water shortages. There was no food or anything in the shops. We were lucky at the time with access to ?? water from friends. Life was pretty harsh at that time. It took my parents a few years to get enough money and paperwork to get us out of the country. I have heard it’s really bad in Zimbabwe right now. I fear for my safety and would not survive there. My family and home is in Australia. A little about myself is that I am educated and have never had a problem getting employment. I am a very sporty person and enjoy working. I am a good welder and a very fast learner so I have done many different jobs in this country. I am a Christian and lost my way the last few years. I am not young anymore and would like to settle down. I believe I have changed for the better and am very serious about getting my life sorted and start planning for my future with my family.
My experience coming to this country
I remember when I first stepped foot in Perth. It was so exciting. I was overwhelmed. I felt blessed. It was so amazing for our family seeing all the shops, because everything felt so right! After a few months I got a job and started enjoying the luxuries of this country. I believed back then and now, anything is possible in this country with determination. I am so blessed to be here. In Africa was tough [sic] I forgot how fortunate we are being here. I love Australia. Everything here means the world to me. I wish more than anything to stay here with my family. I have nothing back in Zimbabwe.
Work Experience
I have learnt a lot of good trades in this country and have work worked [sic] most of my time here. Whenever I had a job I would make good choices and stay out of trouble. I first started working at McDonalds, which is not the best job but it taught me to work well with others and learn about budgeting and paying bills. I worked here with my mother and sister, so we became very close. I then got a job at IGA as a side job because I was not getting enough hours at McDonalds. I did well during this period and learnt a lot. I then got a job as a roof plumber which was to install and remove tin sheets on roofs of houses and schools. I really enjoyed this job as it payed more. These were harsh hours and had to deal with extreme heat but I loved it. I also worked at a bakery which was fun but only had late shifts. I was lucky to get a job at ... as a welder. I enjoyed this job because I like working with light metal. I worked here for about a year. I had to weld frames for ceilings and walls. This is the trade I would like to do in the future. I then got a job as a trade assistant for a company called ... in Kwinana. For this company we had a team that went to Garden Island and Henderson to work on the Navy ships. I had various duties like cleaning, installing and general maintenance for air ducts on the ships and submarines. If I could stay and I pray I do, I will go back to this job. I pray I am given another chance to experience these jobs as I would now cherish every moment.
The beginning of my troublesome lifestyle and mindset
When I came here I was 18 years old and I was less mature than others in my age group. I started and believed I could do whatever I wanted with my money. My mother is a very intelligent woman and would remind me to save money and buy things I need and not want. As a young adult I thought my parents were too controlling which lead to tension in our relationship. I began to hang out with a bad crowd. I began drinking and smoking cannabis. I wasted my money on the wrong things. I became very rebellious and left home. I became a very different person. This confused my parents, they could not understand why I was acting that way. My parents never locked me out and so I was allowed most of the time back home. This was on the condition I respected the house and their rules. I would leave again and it became a cycle and eventually I ended up in prison. When I look back I cannot understand why I was acting so childish and did all those things. I really am so embarrassed and wish with all my heart I could go back in time and do things different. I have wasted so much time and really pray I get another chance to prove I am capable doing [sic] and being a good man.
Reasons for coming to Jail
As I said before, I did not hang around the best people. I ended up in disputes with some people who did not like the colour of my skin. I ended up getting assaulted at a food outlet and these people began to drive past my parents tormenting them with racial slurs and throwing rocks at the windows. I then tried to take matters into my own hands which I shouldn’t have. I went to their house and ended up in a fight with them. I got bashed and almost lost my eye with 21 stitches between my tearduct and nose. I also received twelve months imprisonment for going to their house. I really regret that and wish I never met them. I cannot blame other people for my own choices. The second time I came to jail for possession of some cannabis and receiving two stolen cars, which I know were stolen. This was very poor decisions [sic] and I received nine months imprisonment. I am in prison this time for being in the wrong place at the wrong time. I believe I am innocent and not gain [sic] anything from the situation instead I got two years jail and my visa was cancelled. I am very sympathetic to the person who lost her jewellery and am very sorry things ended up like that. I wish I was not there to begin with and I wouldn’t be in this situation.
The reasons why I have changed for the better
First of all I pray I could get a chance to prove everyone [sic] and myself that I have changed and matured. I have written this letter on my own without help because I would like the reader to see I am genuinely apologetic and scared to leave this country. I have been drug-free for over a year. I don’t know why I wasted time on that stuff and realise how much it changed my personality and decision making. I am willing to go to rehab or do any drug and alcohol courses. I am currently on a waiting list for drug and alcohol courses and rehab. I have also not had any contact with any old friends for over two years because I intend to start afresh with new experiences and a clear mind. I have also realised family is the most important thing in life and would rather have them as friends. I have changed significantly over two years. I do not wish to keep in contact with old friends and bad habits. I have finally matured, and I know what I want and need in life. I will never come to jail again. I need my family more than ever and they have always been there I just didn’t see that. I want to make my family proud and show them I have changed. I now I have been given a few chances. I was not independent and immature. I beg you to give me one more chance to show you, myself and everyone what I am capable of. I am willing to do whatever it takes.
  1. The Tribunal also notes that in his psychological assessment of MBQX, Mr [H], a psychologist, relevantly wrote in a report dated 11 November 2017 (A4) as follows:
(a) Is there a risk to the Australian community of MBQX Reoffending?
If there was a risk, it would appear to me to be minimal.
(b) If so, what is the extent of that risk?
That risk to the Australian Community of MBQX reoffending in future appears to me to be minimal. If he was to undertake regular drug and alcohol rehabilitation therapy sessions it is my personal experience and opinion that the risk of relapse and recidivism is unlikely.
(c) In your opinion, is there any link between drug and alcohol dependency and his past reoffending?
Yes. His previous offending appears to be all tied to his dependence on drugs and alcohol.
  1. Whether in your view, he genuinely understands and is remorseful for the way he has conducted himself in the past and in particular the most recent offence.
In my view he now seems to fully understand how and why he has conducted himself inappropriately in the past, and also in relation to his most recent offence and he fully accepts accountability for this. He says he understands he was associating with the types of people because of his drug use. Also that his actions led to his becoming involved in illegal acts. He says he is ashamed and remorseful for his actions.
(e) What is different now to the previous submissions he has made about remedying his behaviour. What would make one believe that he now has a full understanding of the addiction is now free of the addiction and that this has minimised the prospect of reoffending.
He is now not minimising nor externalising his part in the recent offence. He fully accepts that he has had a major problem with drugs and is prepared to do whatever it takes, for as long as it takes to recover. He says that if allowed to remain in Australia he will attend a longterm rehabilitation centre (Palmerston) and continue with regular aftercare after that program for as long as it takes. I have also suggested to him that he attend regular AA or NA meetings for continuing support for a number of years as a reminder on his need to focus on abstinence from drugs and alcohol. He is agreeable to this. I have let him know that I am prepared to take him back on as a client to assist in his recovery.
  1. The Tribunal notes that attached to Mr [H]’s report are various articles that relate to brain development in adolescents. It appears that these articles were attached as evidence that MBQX’s actions as a young man might not reoccur now that he is older and more mature. Unfortunately, Dr [H] did not elaborate in written statements or when examined before this Tribunal and it is not entirely clear to the Tribunal what weight, if any, can be attached to these academic articles. Unfortunately, in the circumstances, the Tribunal cannot attach much weight to them.
  2. The Tribunal also notes that, although Mr [H] speaks favourably of MBQX’s prospects of success, Mr [H] has only seen or spoken to MBQX on a few occasions (face to face: 24 October 2013, 7 November 2013 and 25 November 2013; via telephone on 7 October 2017, 13 October 2017, 27 October 2017 and 2 November 2017). Relevantly, MBQX continued to reoffend post 2013 having sought psychological counselling from Mr [H].
  3. The Tribunal also notes the following comments made by Stewart DCJ in 2016 about MBQX’s pre-sentence report (G23 at 70):
The pre-sentence report identified the following risk factors and treatment needs:

Negative peer associations; substance use issues; lack of consequential thinking; poor decision making skills; immaturity and lack of emotional management. Your unemployment, your lack of structured activities and your anti-social attitudes.

  1. MBQX has completed various life skills/rehabilitation courses.
  2. In this regard, it is noted that in sentencing MBQX in 2014, Magistrate Edwards makes reference to the Supervised Treatment Intervention Regime (STIR) program. This is a 3-5 week intensive program designed to assist people with drug use problems who are attending court for moderate-level crimes. Notably, despite attending this program, MBQX continued to use drugs and reoffend. This lead her Honour to state:
It’s very disappointing to be faced with having to sentence you today, given that, as Mr ... has said, you are an intelligent person. But you continue to offend and today you have pleaded guilty to three more convictions or three more offences, two of those involving the illegal use of motor vehicles and the other the breach of bail for your non-appearance at court recently.
I consider that I have got no alternative than to impose immediate terms of imprisonment. You have had a great deal of latitude and opportunity to address your offending behaviour through the STIR program, but you have squandered those opportunities and you can only blame yourself now ... for the predicament that you are now in.
  1. The evidence also shows that MBQX recently participated (while detained) in a course called “COG Skills Think First”, another intensive therapy program that aims to help group members develop their social problem-solving skills and apply these skills to real-life situations. The program focuses on the problem of offending behaviour. MBQX says that he found the program highly beneficial.
  2. The Tribunal is willing to accept that training of this sort goes some way towards ensuring that MBQX will avoid further drug abuse and any resulting offending. (G42 at page 322).
  3. The Tribunal notes that MBQX applied for additional drug and alcohol rehabilitation during his most recent incarceration; however, these programs were not available prior to his release from prison.
  4. The Tribunal also has before it range of letters in support of MBQX, including:
  5. The Tribunal has reviewed all of the above and notes that all speak favourably of MBQX’s character and the love and support these individuals are willing to provide him.
  6. In assessing the risk to the Australian community, in particular MBQX’s remorse, it is noted that the Ministerial delegate found as follows (G21 at 47 – 48):
    1. Mr Rothstein submits that despite his criminal conduct, MBQX has always been quick to admit his guilt. Mr Rothstein argues that MBQX’s cooperation with the authorities is indicative of someone from a good background who went off the rails, and not the conduct of a hardened criminal. I consider MBQX’s immediate admissions of guilt indicate some remorse for his offending.
    2. Remorse is a salient part of the rehabilitation process. MBQX has stated that he is disappointed and scared that it has taken so long to realise that what he does affects other people. His mother states that he is ‘forever apologetic’ for the hurt and pain he has caused his family, and the people he has wronged. I accept that his insight into his offending lessons the risk of his reoffending. However, in 2011 MBQX stated that his time in custody had made him ‘acutely aware of the trouble’ he had got himself in and that his behaviour was hurting his family. He subsequently continued to offend and this gives me some pause in accepting that his expressed remorse indicates that he will not reoffend, as he has done so in the past despite being remorseful.
  7. Like the Minister’s delegate before it, in considering whether MBQX represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
  8. In relation to the nature of the harm to victims if MBQX were to reoffend, counsel for the Minister contended in a Statement of Facts, Issues and Contentions (R1) that:
    1. The nature of the harm to victims if the applicant were to reoffend in the future is very serious, and could involve significant physical, financial and psychological harm to members of the Australian community.
    2. Turning to the likelihood of reoffending, the applicant is a repeat offender with an extensive criminal history, which dates back to 2010. The Minister notes that, whilst the applicant has expressed some remorse and has engaged in limited rehabilitation, the applicant’s ability to abstain from drugs and alcohol and not offend further has not been tested in the community free from obligations of the Court.
    3. The applicant’s counsel contends that the applicant’s “track record” of no drug or alcohol use is demonstrated by the fact that the applicant has not returned a positive urinalysis whilst in prison since “mid-2015”. The Minister contends that partial abstinence from drugs and alcohol during a term of imprisonment (in which he was only tested twice and returned one positive and one negative result) goes little way to demonstrating that the applicant has an ability to abstain from those substances should he be released from supervised custody.
    4. Even when the applicant was under Court supervision for his alcohol and drug taking, the applicant failed to comply with the requirements set by the Court. The applicant had previously been placed on a Supervised Treatment Intervention Regime (STIR) in relation to the charge of possession with intent to sell or supply ...
    5. The applicant’s counsel contends that the applicant has participated and is willing to continue to participate in drug and alcohol counselling with Mr [H]. The Minister contends that little weight should be given to this consideration where the applicant has previously engaged with Mr [H] (G44/341) and the counselling he received had no effect on the applicant’s offending or drug taking behaviour.
    6. Given the applicant’s criminal history, past relapses despite engagement in a previous rehabilitation and counselling, and continued offending despite receiving two formal written warnings by the Department and with the knowledge that his offending could lead to his deportation, the Tribunal can have little confidence in the applicant’s assertion that he will not reoffend.
    7. The applicant now contends that he did not take the first warnings seriously but that his further offending and imprisonment has been a “life changing wakeup call that I cannot waste my life” (G31/133). The applicant further claims that he has given up alcohol and drugs and cut himself off from contact with his previous friends and has been substantially motivated by his imprisonment in 2015 and the threat of being removed from Australia (G33/169).
    8. The Minister contends that limited weight should be given to the applicant’s submissions in circumstances where:
a. He is a serious repeat offender with an extensive criminal history.
  1. He has a longstanding history of substance abuse and the Tribunal cannot be satisfied that he is rehabilitated. He has previously been referred for therapy for his drug addiction (G44/341) and attended private as well as Court mandated counselling (G33/182). In 2012, he submitted that he was no longer dependant [sic] on alcohol and marijuana (G36/242) however continued to both offend and use drugs and alcohol after that time. Furthermore, whilst he has participated in a Think First program in prison the course was only completed in August 2017 (G46/362) and it has previously been reported that the applicant has previously, “look[ed] motivated and look[ed] as though you won’t be re-offending but then you go out and get yourself in trouble” (G26/111).
  1. In 2011, he described being notified that DIBP was considering cancelling his visa as having an enormous impact and descripted it as “the final wakeup call for me”. Despite this “wakeup call” the applicant continued to offend.
  1. The applicant has limited insight into his offending and responsibility for his actions stating that people were trying to get him (G25/97) and has demonstrated what was described as a “remarkable inability” to comply with Court obligations (G25/99).
  2. His rehabilitation has not been tested in the community environment.
  1. Finally, the applicant’s counsel contends that the likelihood of the applicant reoffending is mitigated by the applicant’s “extremely supporting and close knit family with whom he will live if the revocation of visa is cancelled”. The Minister contends that little weight should be placed on this fact where the applicant has previously had access to the same family support and it has not curbed his substance taking and criminal offending.

72. The evidence shows that MBQX has the strong support of his family and belongs to a strong Christian community of friends – all of whom will seek to assist him if he is released from detention. MBQX’s mother gave evidence before this Tribunal and explained that she had contacted Shalom House – a highly reputable Christian residential rehabilitation program for men – in the hopes that her son would be welcomed there and treated for his addiction issues. Although Shalom House has not agreed to accept MBQX as a resident, MBQX mother’s commitment to her son is exemplary.

  1. Although positive, the Tribunal notes that this support network has always been there for MBQX. He simply chose to ignore the support available to him. This community of support did not stop MBQX from offending in the past and the Tribunal has concerns that their ongoing support will not stop him from engaging in illegal conduct again should the opportunity arise.
  2. Based on the material before it, the Tribunal is entitled to have significant doubts about the effectiveness of any rehabilitation programs taken by MBQX in circumstances where he has had the opportunity to demonstrate meaningful rehabilitation outside of a supervised environment but has failed to do so. This is compounded by MBQX’s inability to demonstrate rehabilitation in a supervised environment having tested positive for both Cannabis and Methamphetamine while in prison (G42 at 332), breaching bail and breaching a community based order. MBQX has been given numerous opportunities to get help and stop offending. He has twice been warned about deportation and has actively engaged in a highly reputable drug program but then continued to offend. All of this supports a finding that he will re-engage in drug taking likely to cause him to reoffend.
  3. Add to this the fact that MBQX has only recently engaged in a rehabilitation program in prison, the effects of which remain untested in the community, and the Tribunal finds itself doubting whether MBQX has done enough to address his offending behavior. The Tribunal finds that in these circumstances the risk of recidivism is very high.
  4. Overall, MBQX’s conduct was very serious and he received a lengthy sentence of imprisonment, incarceration being a last resort in the sentencing hierarchy. Should he reoffend, the result for the community would be unacceptable.
  5. For the reasons outlined above, the Tribunal has reason to doubt the success of MBQX’s rehabilitation and therapeutic efforts. On the evidence, the Tribunal finds that there is still a very real risk that MBQX will engage in harmful conduct if released into the community. This poses an unacceptable risk to the Australian community as there is a risk that he will then reoffend. Given the nature of his crimes to date this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel MBQX’s visa.

(ii) Best interests of minor children in Australia

  1. MBQX does not have any biological minor children; however, he has a younger step brother. MBQX contends in his Statement of Facts, Issues and Contentions (A1 at 13) that his younger brother would “sorely miss input and physical contact from his older brother.” The Tribunal has also reviewed the statements prepared by MBQX’s younger brother (A3 and G34 at 205) and accepts that he and MBQX have a special bond.
  2. In response, the Minister in a Statement of Facts, Issues and Contentions (R1) contended as follows:
    1. In accordance with paragraph 13.2(4), the Minister contends that less weight should be given to this consideration in circumstances where:
a. The relationship is non-parental (13.2(4)(a) of Direction 65)
  1. Mr and Mrs ... already fulfil a parental role for the child (13.2(4)(e) of Direction 65)
  1. The child could maintain contact with the applicant by other means for example telephone or Skype (13.2(4)(d) of Direction 65)
  1. Given the applicant’s lengthy criminal history and drug, alcohol, and violent offending, the Tribunal can have no confidence that the applicant would play a positive role in the child’s future (13.2(4)(b) of Direction 65).
  1. Overall, the Minister contends that if this consideration weighs in favour of revocation (which isn’t conceded), it should be given very limited weight.

80. The Tribunal agrees. The Tribunal is willing to accept that a decision not to revoke the decision to cancel MBQX’s visa would have a negative effect on his younger brother. While this weighs in favour of the revocation of the decision to revoke MBQX’s visa, this consideration does not outweigh the other primary considerations canvassed here.

iii) Expectations of the Australian community

  1. The third consideration listed in Direction No. 65 refers to the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
  1. In relation to the expectations of the Australian community, the Tribunal notes submissions made on MBQX’s behalf in a Statement of Facts, Issues and Contentions (A1 at 8 and 9) as follows:
6.1 It is contended that members of the Australian community who are aware of MBQX’s convictions have indicated an expectation that he be given a further opportunity to remain in Australia.
6.2 We refer to the following paragraphs from Anaki and contend that the comments especially those emphasised can readily apply to the Applicant:

“89. The consideration of Australian community expectation allows, impliedly at least, reasonable judgement by a decision-maker, bringing appropriate perspective and proportionality to bear in the assessment of risk. Furthermore, the expectation must be considered contextually, relative to factors arising in relation to other principles set out in s 6.3 of the Direction 65.”

“92. To my mind, the Australian community may well have expected Mr Anaki’s visa to be cancelled in 2010, when his offending conduct was at its peak, but this did not occur. Whether that expectation holds in view of subsequent events is finely balanced. While the Australian community might expect that a non-citizen who has committed crimes over a long period should have his or her visa cancelled, there is room within that expectation for proportionality, especially in the face of changed behaviour and a clear undertaking to engage in structured rehabilitation. This is such a case, albeit at the border perhaps.”

“94. Evidence of his efforts to break the addiction that has been the driving factor underlining his offending conduct over the years...lend support to a tolerant assessment.”

“95. Even though Mr Anaki has a long criminal history, the nature of his offending is more craven than it is malicious: it is less the conduct of a violent thug or a predatory malefactor than the conduct of a person struggling with drug addiction, homelessness and unemployment. Nevertheless it is craven to the extent of continuing disregard for law and the warnings given.”

“99. On balance, while the limit of tolerance of Mr Anaki’s offending conduct has been reached and tested, it has not yet been exceeded. Reasonable judgement of his conduct over time supports a proportionate assessment, presently. I accept that this is a point on which reasonable minds may differ. To my mind, weighing the evidence and having regard to the relevant circumstances, this expectation of the Australian community does not weigh against revoking cancellation of Mr Anaki’s visa.”

It is contended that the expectation of the Australian community, having regard to Applicant’s circumstances, should not weigh against revocation.

  1. In relation to this issue, the Minister contended as follows (R1):
    1. This primary consideration favours non-revocation. Relevantly, paragraph 13.3(1) of Direction 65 indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. Given the nature of the applicant’s offences, which involve violence, the Australian community would expect that the applicant should not hold a visa.
    2. The Minister notes Principle 2 of Direction 65, confirming the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled.
    3. Given the nature of the applicant’s offences and long history of offending, and the continuing risk to the community that he poses, the Australian community would expect that the applicant should not hold a visa.
  2. The Tribunal notes that prior to his imprisonment in June 2015 MBQX was homeless, without work and supposedly dependent on drugs and alcohol (G21 at 47). The Tribunal considers that the Australian community would have considerable sympathy for a young Zimbabwean male who has had to immigrate to a new country and leave friends and extended family.
  3. Nonetheless, there are limits as to just how far the community’s sympathy will extend. The Tribunal finds that the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia. To highlight again, MBQX’s criminal record includes numerous serious property, assault, and stealing offences and he had already received two warnings from the Department and two prison sentences prior to his most recent incarceration. In sum, MBQX has over 30 convictions, with his most recent offences being committed in 2015. In that year, MBQX was found guilty of aggravated burglary and commit offence in dwelling for which he received a sentence of imprisonment of 2 years and 2 months (G22 at 59). The sentencing Judge stated that “all home burglaries are treated seriously by the courts. People are entitled to feel safe in their own homes” (G23 at 68).
  4. This echoes similar sentiments by Sweeney DCJ in 2011 that MBQX’s offence was “obviously a very serious one” (G26 at 113), and in 2014 when Magistrate Edwards considered there was “no alternative than to impose immediate terms of imprisonment” when sentencing MBQX.
  5. In assessing the expectations of the Australian community, regard should be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (para 6.2(1)). Further, in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie noted (at [72]) that any assessment of the expectations of the Australian community is “ultimately a matter for judgment” and “the facts of which that judgment is made must be made on the basis of facts established by the evidence”.
  6. The Tribunal notes that the cumulative effect of MBQX’s extensive criminal record is also relevant. Some of MBQX’s offences, considered in isolation, would not be considered “serious”. However, his offences are numerous, with MBQX having committed a significant number of offences over a very short period of time. That offending also began only two years after arriving in Australia.
  7. The cumulative effect of MBQX’s offending raises significant concerns about the safety of the Australian community should the decision to cancel MBQX visa be revoked. The frequency of his offending and the fact that there is an evident trend of increasing seriousness is also of concern.
  8. Based on the cumulative effect of MBQX’s offending over a lengthy period of time, the seriousness of his offending and the numerous warnings he has been given, the Tribunal finds that the Australian community would expect MBQX’s to be denied the right to retain his current visa.
  9. The community’s expectations in this regard weigh heavily against the revocation of the decision to cancel MBQX’s visa.

OTHER CONSIDERATIONS

  1. Paragraph 14(1) of Direction No 65 states:
14 Other considerations – visa applicants
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
  1. It is agreed that in relation to this matter, (a), (b) and (e) merit consideration.

International non-refoulement obligations

  1. Direction No. 65 provides as follows in relation to Australia’s 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 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 non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, 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 48 A 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 have their visa reinstated. 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 remains cancelled, they would face the prospect of indefinite immigration detention.
  1. In his request for revocation of the decision to cancel his visa, MBQX stated that he was fearful of returning to Zimbabwe (G31 at 133). He stated that without formal education or training or recent knowledge of commerce in Zimbabwe he is unlikely to be able to obtain work of any nature (in a country of exceedingly high unemployment) and, accordingly, it is reasonable to accept that he would not be in a position to sustain himself. He also stated that Zimbabwe was a “barely functioning country”.
  2. MBQX’s lawyer, Mr Rothstein, also submitted that MBQX would be unable to access any of the support and treatment available in Australia, if returned to Zimbabwe (G42 at 311). Mr Blades also submitted an article that details social discrimination and violence against people with Indian heritage.
  3. These submissions were not initially advanced by counsel within the context of Australia’s non-refoulement obligations. Counsel for both parties were recalled for further closing submissions after the High Court handed down its decision in Minister for Immigration and Border Protection and BCR 16 [2017] HCA Trans 240 on 17 November 2017. It was agreed by both parties that the High Court has now upheld the decision of the Full Court of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 (BCR16). As such, following the principles outlined by the Full Federal Court, it was agreed that the Tribunal must now assess any international non-refoulement obligations that might arise if MBQX is returned to Zimbabwe (even if not specifically framed as such by an applicant or his lawyers).
  4. In assessing any non-refoulement obligations, however, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
  1. Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a protection visa claim were examined elsewhere by those specifically charged with analysing a Protection visa claim. As outlined previously by this Tribunal, normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time (here, five days from final oral submissions), the Tribunal does not have the benefit of an ITOA or the full (and much needed) body of evidence one would expect (and which an applicant deserves) in a protection visa hearing.
  2. MBQX’s Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 13 November 2017 (A2) (the “Reply”) annexed several documents in relation to the current situation in Zimbabwe and the possible hardships that MBQX will face if returned. The Tribunal has reviewed these annexures (A6, A7 and A9), as well as the Department of Foreign Affairs and Trade report on Zimbabwe dated 11 April 2016 (the “DFAT Report”) which was an annexure to MBQX Statement of Facts, Issues and Contentions (A1) in determining whether any non-refoulement obligations arise from the relevant Conventions referenced in Direction No. 65.
  3. The DFAT Report relevantly highlights:
Refugee Convention Claims

Race/Nationality

3.1 Article 56 of the Constitution prohibits discrimination based on nationality, race, colour, tribe, place of birth, ethnic or social origin, custom or culture. Article 63 provides that ‘Every person has the right to use the language of their choice, and to participate in the cultural life of their choice.’ Despite these protections, however, ethnicity is a potential source of tension in Zimbabwe and an important aspect of political life. The country continues to suffer from the legacy of the colonial period, which affects relations between white and black Zimbabweans; voting patterns continue to reflect ethnic and racial affiliation; and there is evidence of inter-ethnic favouritism and marginalisation.

Other Considerations

Detention and Prison

5.13 The Constitution guarantees the fundamental rights of arrested and detained persons. These include the right to liberty and to the protection of the law, which includes the right to a fair trial within a reasonable period and the right to innocence until proven guilty, as well as freedom from torture or cruel, inhuman or degrading treatment or punishment. Zimbabwe’s Criminal Procedure and Evidence Act further guarantees accused persons’ basic rights while in police custody, regulating the conduct of police to ensure that they do not violate due legal process. Prisons in Zimbabwe have female-only sections. Although the Prisons Act does not provide for the establishment of separate detention places for children, children must be kept in separate holding cells from adults.

5.14 Despite these legal safeguards, prison conditions in Zimbabwe are generally very poor. Detention facilities suffer from overcrowding, poor sanitation, and food shortages – conditions which contribute to the spread of HIV, tuberculosis and other communicable diseases. In June 2014, the Constitutional Court held that the conditions in the Harare Central Detention Center violated prisoners’ constitutional rights.

Exit and Entry Procedures

5.20 Although the Constitution allows Zimbabwean citizens to possess dual nationalities, authorities may question dual nationals in possession of two passports at an airport. Under the Immigration Act 1996, a person loses their domicile status if they voluntarily depart from and reside outside Zimbabwe with the intention of making their home elsewhere. Taking up residence outside Zimbabwe is regarded as prima facie evidence of such an intention. Immigration officers may photograph, and take the fingerprints and palmprints of, any person suspected of being a ‘prohibited person’ under the Act. This includes anyone who enters Zimbabwe in contravention of the Act. Zimbabwean immigration officers may question anyone who desires to enter or leave Zimbabwe; arrest and detain those suspected of contravening the Act for a period not exceeding 14 days; and refuse entry to suspected prohibited persons. The Minister for Immigration may exempt any person from being declared a prohibited person.

5.21 According to Freedom House, immigration and border authorities are underfunded and lack the capacity to effectively enforce travel restrictions. Domestic and international travel is less restricted than it has been in the past, when the government would seize passports of domestic opponents or expel or deny entry to foreign critics. Credible sources have told DFAT that, although Central Intelligence Organisation (CIO) personnel are stationed at the country’s major airports, they only take an interest in high profile individuals, including human rights activists, senior opposition party members, and anyone accused of committing a crime overseas. This could include involuntary returnees because of their actions in lodging protection claims overseas, although DFAT is aware of third country returns who have not been subjected to adverse attention by Zimbabwean authorities. DFAT assesses that only high profile involuntary returnees would bear this risk.

  1. In relation to race, the Tribunal notes that Mr Blades emphasised that latter MBQX would face considerable harm if returned to Zimbabwe because he is of Indian descent. In that regard, the Tribunal was referred to an article from “Daily News Live”, dated 20 February 2017 (A9) that reads:
HARARE - Zimbabweans were yesterday shocked by new threats from Zanu PF Harare provincial political commissar Shadreck Mashayamombe to expel all Indian nationals from Zimbabwe.
The threats were accompanied by the kind of worrying rhetoric which threatens to place the ruling party in the same league as Ugandan dictator Idi Amin who hounded out the Asian population in the 70s through similar racial and economic unrest.
The Zanu PF Harare South MP said on Facebook: “Something must be done with this Indian community in Zimbabwe.
“Firstly, they don’t bank their money, secondly, they don’t develop their estates, and thirdly they don’t want to marry our sisters, fourthly, before independence they used to be given special treatment as compared to blacks.”
The Indian embassy was not immediately available for comment over the weekend, but the small community has by and large maintained cordial relations with locals.
By setting its sights on expelling the Indians, Zanu PF appears to be following the well-trodden - but largely discredited - path of Africanisers such as Amin and Mobuto Sese Seko of Zaire.
Amin’s deportation of about 50 000 UK passport-holding South Asians in 1972 failed to bring promised prosperity, and saw the collapse of the commercial sector.
Meanwhile, the economic outcome of Mobutism was the wholesale plunder of Congo’s resources by the ruling elite.
This comes as President Robert Mugabe has increasingly leaned on India and China after being shunned by Western trade and financial partners.
They have been put off by concern over human rights and alleged fraud in elections won by the president and his Zanu PF party.
Speaking at the 11th Zimbabwe International Research Symposium on Friday, Mugabe said more than 23 percent of Zimbabweans were now earning a living through the SME sector and must follow India’s example.
“With success stories having already been recorded around the globe, in China and India for example, there is no need to reinvent the wheel on SMEs development.
“This is especially so given the sound relationship between Zimbabwe and India, especially in the SMEs sector, ICTs, energy, education and the pharmaceutical sectors,” Mugabe said.
  1. The Tribunal is unable to attach much weight to the above article. While clearly disturbing, It does not appear in a reputable source and says little about state sanctioned discrimination by persons of Indian descent. Instead, when determining whether MBQX is owed any non-refoulement protections, the Tribunal prefers, instead, the relevant DFAT Country Report. The Tribunal notes, in that regard, that the DFAT Report does not find there to be state sanctioned discrimination against persons of Indian descent. While tensions certainly exist, without more evidence, the Tribunal is unable to determine whether said tensions result in any non-refoulement obligation.
  2. The Tribunal also notes that the DFAT country report indicates that “high profile” returnees with a criminal record might be subjected to adverse attention from police and border protection. Again, unfortunately without more information about what this amounts to and why, specifically, MBQX will be targeted, the Tribunal is unable to conclude that any risk of this sort does in fact arise, what that risk might entail or, in any event, whether what might happen constitutes a Convention specific category that triggers a non-refoulement issue.
  3. The Tribunal can only work with the evidence it has before it. Here, that evidence was scant, primarily it would seem because counsel for MBQX initially appears to have concluded that no refoulement issue arose here. This is not a criticism of either counsel or his instructing solicitor. Both undertook an extraordinary amount of work on behalf of MBQX and his family. Others would do well to emulate their efforts in this regard. Rather, this simply reflects the nature of hearings of this sort, the difficulty lawyers have accessing their clients and the challenges posed by very tight legislatively imposed time frames.
  4. On the evidence, the Tribunal finds that MBQX has not provided sufficient evidence to satisfy the Tribunal that he faces a real risk of harm such that Australia’s non-refoulement obligations would be triggered, other than to say he is ‘fearful’ of returning to Zimbabwe.
  5. This, as rightly noted by Mr Blades, is a consideration that the Tribunal can assess elsewhere (and does so below under the heading “impediments upon return”). Overall, however, the Tribunal considers MBQX’s ‘fears’ at being returned to Zimbabwe to be in relation to the extent of impediments which he may face if retuned rather than an articulation of a fear that his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
  6. The Tribunal was advised that other country information and more substantial evidence might exist and that the current political situation in Zimbabwe means that it is difficult to know, precisely, what that situation is from day to day. The Tribunal has no reason to doubt this submission. While this Tribunal can only deal with the limited evidence it is noted (and agreed by the parties) that MBQX has not previously had a visa refused or cancelled under section 501, 501A or 501B of the Migration Act. He is, accordingly, able to apply for a Protection visa in accordance with s 501E(2) of the Migration Act. It is at that time that a thorough analysis of the current state of daily life in Zimbabwe will be undertaken. Mr Rothstein advised the Tribunal that his client would consider this option if not successful here. It is noted in this context that any character findings made in relation to MBQX in these proceedings would not negate any protection claims he may have from being assessed. This is so because of the operation of Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b) – Part 2, which specifically precludes character findings arising from a criminal deportation finding being assessed first (and instead requires any protection claims to be assessed first).
  7. On the limited evidence before it, the Tribunal finds that no non-refoulement obligations arise in relation to MBQX.

Strength, nature and duration of ties

  1. Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider MBQX’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

  1. i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
  2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

  1. MBQX has lived in Australia since 2008 with his parents and siblings. As noted at paragraph 67 above, all have provided letters in support of MBQX.
  2. In his submissions to the Department, MBQX stated that his family would be negatively affected by his return to ‘the country that they tried their hardest to get away from’ and it would ‘break’ his mother (G21 at 51). The Tribunal does not doubt that this is the case.
  3. In her letter to the Department, MBQX’s mother stated that she would be “utterly devastated to lose her eldest son” and that once his grandparents move to the United States he will have “no one in the world over there” (G33 at 183). She submits that she and her family sought to escape from the corruption, crime, discrimination and poor living conditions in Zimbabwe.
  4. In relation to this issue, the Tribunal notes the Minister’s contentions in a Statement of Facts, Facts and Contentions (R1):
    1. The applicant arrived at age 17 and has resided in Australia for approximately nine years. Despite this, in line with paragraph 14.2(1)(a)(i), the Minister contends that less weight should be given to this consideration in circumstances where the applicant began offending soon after he arrived. Further, the evidence before the Tribunal does not indicate that the applicant has made any significant positive contributions to the Australian community and as such, the Minister contends that less weight should be given to the length of the applicant’s residence in Australia (paragraph 14.2(1)(a)(ii)).
    2. The Minister acknowledges that the applicant’s mother, step-father, sister and step-brother reside in Australia. While the applicant’s removal to Zimbabwe may involve a physical separation from these family members, there is no evidence before the Tribunal to suggest that they would not be permitted to visit him in Zimbabwe. Nor is there any suggestion that he would be unable to maintain contact with his family in other ways.
    3. The Minister accepts that this consideration weighs in favour of revocation. However, the Minister contends that it should be given limited weight and does not outweigh the primary considerations weighing heavily in favour of revocation.
  5. On the evidence, the Tribunal finds that MBQX has contributed to some degree to the Australian community by being employed in the service industry, having worked at McDonald’s. The Tribunal also accepts that MBQX’s parents and siblings will be negatively affected if the Tribunal does not revoke the decision to cancel his visa. All of this weighs in favour of revoking the decision to revoke MBQX’ visa. Balanced against this, however, is MBQX’s history of violent crimes. MBQX’s criminal record does not reflect a positive contribution to the Australian community. Further, as correctly stated by counsel for the Minister, less weight should be given to this consideration in circumstances where the applicant began offending soon after he arrived, in this case approximately 2 years after arriving in Australia.
  6. While the Tribunal finds that MBQX does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above

Extent of impediments if removed

  1. Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if MBQX is removed from Australia as follows:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
  1. As noted above, MBQX stated that he was fearful of returning to Zimbabwe (G31 at 133) because of concerns that he would unlikely be able to obtain work of any nature (in a country of exceedingly high unemployment) and he would therefore not be in a position to sustain himself. He also stated that Zimbabwe was a “barely functioning country”.
  2. In relation to the extent of impediments faced by MBQX if retuned to Zimbabwe, the Tribunal is mindful of the materials provided by Mr Rothstein in relation to the situation MBQX may face if retuned. These are discussed above. The Tribunal notes, in particular, the poor quality of medical services available to all Zimbabwean residents (A1) and concerns MBQX has about being detained as a returnee with a criminal record.
  3. In the reasons for the cancelation decision, the delegate of the Minister relevantly addressed the extent of impediments faced by MBQX if returned to Zimbabwe as follows:
Extent of impediments if removed to home country
70. MBQX is 26 years old. He submits that he currently takes amitriptyline hydrochloride for mood problems such as anxiety and depression. He submits that he has a polysubstance drug addiction and a chronic alcohol problem. He states that he is fearful of returning to Zimbabwe.
71. Mr Rothstein submits that it is common knowledge that Zimbabwe is, in effect, a barely functioning country. Furthermore, someone without formal education or training or recent knowledge of commerce in Zimbabwe is unlikely to be able to obtain work of any nature (in a country of exceedingly high unemployment) and accordingly it is reasonable to accept that he would not be in a position to sustain himself. In addition Mr Rothstein submits that he would be unable to access any of the support and treatment available in Australia, if returned to Zimbabwe.
72. I have taken into account that multiple submissions from friends and family speak of fears for MBQX’s safety and survival in Zimbabwe where he would have nowhere to live and no job and where he would end up on the street. MBQX states that he does not know Zimbabwe and that he would not be able to support himself and that the country is unstable. MBQX’s grandparents submit that ‘the economy, health, education and law enforcement’ in Zimbabwe have collapsed. His mother states that there is ‘unimaginable’ poverty and unemployment is at 90%. She states that given the political unrest, the lack of a justice system, the corruption and the intimidation, ‘his life would always be in danger’.
73. Mr .... states that the facilities for continuing MBQX’s rehabilitation are ‘certainly not available in Zimbabwe’. He writes that sending MBQX back to Zimbabwe would be the equivalent of a death sentence. Mr ... states that if MBQX is removed from Australia he does not believe that he will live for very long after being returned to Zimbabwe.
74. MBQX states that he fears for his safety in Zimbabwe and ‘would not survive there’. I accept that general conditions in Zimbabwe and the absence of a personal support network there would make it hard for MBQX to settle successfully there, though I note that he is a young man who states that he has a good work history, some trade skills and can usually find work, so I consider that it is feasible that he can establish himself in Zimbabwe.
  1. As noted above, MBQX has no other family other than his grandparents who are intending to immigrate to the United States in the foreseeable future. He does, however, maintain contact with his former pastor (G36 at 263).
  2. In relation to this issue, solicitors for MBQX contended in a Statement of Facts, Issues and Contentions (A1) as follows:
8.5 Extent of impediments if removed to Zimbabwe
(a) With his only experience of Zimbabwe being as a school boy and with no formal qualifications obtained in Australia and with rampant unemployment in Zimbabwe. It is contended that his prospect of survival in Zimbabwe in tenuous at best;
(b) In Anaki, the Member stated at paragraph 117 that there were substantial similarities between Australia and New Zealand but that there still may be impediments if removed. Those impediments would be the difficulty to establish a support network and furthermore “...the risk of regression may be elevated without familial or other support networks” (paragraph 116).
The Member said the following at paragraph 118:

“On balance, I think the hardship Mr Anaki may experience if he is returned to New Zealand weighs in favour of revoking the cancellation of his visa.”

It is contended that in this instance there are no similarities between Australia and Zimbabwe and so, moreso, this should weigh in favour of revocation.
  1. In response the Minister, in a Statement of Facts, Issues and Contentions dated 2 November 2017 (R1) relevantly contended as follows:
Extent of impediments if returned
  1. The applicant asserts that he would face significant impediments if returned to Zimbabwe including an inability to obtain employment, find accommodation and access social and health care services (G31/144 and G33/168).
78. The Minister contends that:
  1. Any difficulties he would face re-establishing himself in Zimbabwe would not be insurmountable in circumstances where his grand parents reside there and he has lived with them previously (G31/141 and G36/248).
  2. There would be limited language or cultural barriers in circumstances where the applicant lived in Zimbabwe until the age of 17.
c. The factor is not outweighed by the primary considerations.
  1. In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal accepts that MBQX will likely face impediments if removed to Zimbabwe (including poor health care, social inequality and possible police interrogation). He will face limited job prospects and will have limited family support in Zimbabwe.
  2. These findings support a decision to revoke the decision to cancel MBQX’s visa. The question the Tribunal now needs to address is whether this secondary (or “other”) consideration outweighs the primary considerations addressed above.
  3. On the available evidence, the Tribunal agrees that MBQX will find life challenging and arguably traumatic if he returns to Zimbabwe. The country is in turmoil and its people are suffering – economically and socially. Overall, although the Tribunal considers that this consideration weighs in MBQX’s favour, this consideration does not outweigh any of the primary considerations outlined above. The Tribunal must balance MBQX’s concerns with the safety concerns and expectations of the Australia community. Here, the considerable risk of future serious offending clearly outweighs any hardship MBQX might face if he returns to Zimbabwe.

CONCLUSION

  1. MBQX arrived in Australia from Zimbabwe in 2008. He has been convicted of numerous criminal offences since 2010 and has served lengthy terms of imprisonment. On 22 December 2016, MBQX was sentenced to 2 years and 2 months imprisonment for aggravated burglary and commit offence in dwelling and stealing.
  2. Having received a sentence of a term of imprisonment in excess of 12 months, MBQX has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as MBQX was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. His visa was mandatorily cancelled on 31 January 2017. He has been in detention since that time.
  3. In determining whether there is any reason why the decision to cancel MBQX’s visa should be revoked, the Tribunal has attached significant weight to the seriousness of and cumulative effect of MBQX’s offending. As outlined above, his crimes of violence are very serious.
  4. In this regard, the Tribunal has taken account of the following factors provided in paragraph 13.1.1 of Direction No. 65:
    1. the sentence imposed by the courts for crimes – noting that in MBQX’s case a custodial sentence was ordered based on the seriousness of his offending despite an early guilty plea and despite the fact that he had no prior offences;
    2. the frequency of the non-citizen’s offending – noting that MBQX’s offending has continued to escalate since 2010, having been charged with no less than 34 offences since April 2010. These offences include aggravated burglary and commit offence in dwelling, stealing, steal motor vehicle, common assault, breach of bail and possess prohibited drug (cannabis);
    1. the cumulative effect of repeated offending – noting that the cumulative effect of MBQX’s offences demonstrates a blatant disregard for the laws of Australia and the harm caused to the community;
    1. offending since being formally warned – noting that MBQX was warned by the Department in 2011 and 2014 that his offending may have adverse migration effects. These warnings did nothing to stop MBQX re-offending; and
    2. violent crimes are viewed seriously – noting that MBQX was convicted of violent crimes.
  5. In these circumstances, the Tribunal finds that MBQX should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.
  6. The Tribunal also finds that there remains an unacceptable risk that MBQX may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should MBQX engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of MBQX re-offending.
  7. MBQX’s prospects of avoiding further offending are highly dependent on his ability to deal with his substance abuse problems. On the evidence, MBQX has failed in the past to “learn from his mistakes”. He participated in at least one intensive and highly regarded rehabilitation program but almost immediately thereafter began re-offending. He undertook psychological counselling in 2013 but again continued to criminally offend. Further, despite more recent rehabilitation efforts in prison, MBQX has not been tested in the community. Given his past failures to benefit from clinical and social support, the Tribunal has little confidence that he will benefit from these more recent efforts.
  8. Overall, the Tribunal finds that there is a risk that MBQX will engage in violent behaviour if released into the community. Given the nature of his crime this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke MBQX’s visa.
  9. Given the nature of the crimes committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that MBQX’s visa would remain cancelled. This is despite the difficulties his family will face if he is returned to Zimbabwe.
  10. There are considerations that weigh in favour of revocation of the decision to cancel MBQX’s visa. These include the challenges MBQX’s younger brother will face if MBQX returns to Zimbabwe, MBQX’s ties to the Australian community and the extent of the impediments he may face if returned to Zimbabwe – a country that is in turmoil.
  11. The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above.
  12. Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of MBQX’s visa.

DECISION

  1. The decision under review is affirmed.
I certify that the preceding 139 (one hundred and thirty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

.....................[sgd]..................................

Administrative Assistant - Legal

Dated: 30 November 2017

Date of hearing:
17 November 2017
Counsel for the Applicant:
Mr D Blades
Representative of the Applicant:
Mr M Rothstein
Solicitors for the Applicant:
Rothstein Lawyers
Representative of the Respondent:
Mr A Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers

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