Background facts
15 The following statement of the background facts is based on the material in the Application Book and that contained in two additional affidavits relied on at the hearing. The additional affidavits were:
(a) an affidavit of Kylie Hall, a solicitor at Holding Redlich, the solicitors for the applicant, dated 6 February 2017; and
(b) an affidavit of Elena Arduca, a solicitor at the Australian Government Solicitor, the solicitors for the respondent, dated 7 February 2017.
Neither deponent was cross-examined.
16 The applicant first arrived in Australia on 10 September 2009, aged 18, as a dependent of his mother, who had been granted permanent residence as a "Woman at Risk". The applicant was also granted a Woman at Risk (Subclass 204) visa, as a member of his mother's family unit.
17 On 11 February 2011, the applicant committed the offence of doing grievous bodily harm. The circumstances of the offending were set out in a schedule of facts that was before the sentencing judge. The judge summarised those circumstances as follows:
… this offence arose out of a plan that groups of diverse races would fight each other. This behaviour of group animosity and violence towards other racial groups is disgraceful.
You, though, went to this incident armed with a knife, and you produced the knife, and you used the knife. Taking a knife to a fist fight and using it, is intolerable.
It seems that the victim, who was only 13 years of age, entered the fray because of your assaulting another whilst holding the knife. You stabbed the victim in the back. The injury was life-threatening. The stab cut the intercostal artery, causing a massive blood loss. Indeed, without surgical intervention the complainant would have bled to death.
18 On 2 October 2012, the applicant (who had pleaded guilty) was convicted in the District Court of Queensland of the offence and sentenced to four years and three months imprisonment. In sentencing the applicant, the judge noted the following (in addition to the statements quoted above):
(a) The applicant was 19 years of age at the time of the offence and 21 years at the time of sentencing.
(b) The applicant had no criminal history of any moment.
(c) The applicant had experienced a very difficult childhood and upbringing. He was a refugee from Sierra Leone and had suffered significantly in refugee camps before coming to Australia.
(d) The applicant was in a stable relationship and his partner was soon expecting their first child.
(e) When interviewed by police, the applicant gave a self-serving and dishonest version of events, denying stabbing the victim.
(f) The matter was due to commence as a trial that day. The applicant's plea of guilty was a late one, which seemed to have occurred in the context of a relatively strong Crown case.
(g) The applicant's plea of guilty would nonetheless be taken into account.
(h) There had been "absolutely no expression of remorse" made on the applicant's behalf, and the applicant's behaviour to date did not suggest any remorse.
19 The sentence period of four years and three months ended on 1 January 2017.
20 On 13 January 2015, the Parole Board decided to release the applicant on parole on 3 February 2015. By letter dated 19 January 2015, the Parole Board wrote to the applicant informing him of the decision (AB64). Enclosed with the letter was a Parole Order made by the Parole Board under the Corrective Services Act (AB103-104). The Parole Order was a two-page document setting out, among other things, a series of conditions applicable to the applicant's release.
21 On 30 January 2015, a delegate of the Minister decided to cancel the applicant's visa under s 501(3A) of the Migration Act (referred to in these reasons as the cancellation decision). This decision was notified to the applicant by a letter of the same date. The letter stated that, while the applicant's visa had been cancelled and he no longer held a visa, he had the opportunity to request that the cancellation decision be revoked. It was explained that s 501CA(4) of the Migration Act allowed the applicant to make representations about the possible revocation of the cancellation decision on the grounds that: (a) he passed the character test; or (b) there was another reason why the cancellation decision should be revoked. This letter also stated that, if the applicant decided to request revocation, he could write to the Department of Immigration and Border Protection (the Department) "with the reasons why you think the original decision should be revoked" using the attached form. A copy of Direction 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was also enclosed. It was explained that the Direction identified "issues that are relevant to the revocation consideration" and that the applicant should address each paragraph in Part C of the Direction that was relevant to his circumstances. The letter stated that if the decision-maker (in relation to the decision whether or not to revoke the cancellation) is a delegate of the Minister, the delegate must follow Direction 65, whereas if the Minister makes the decision personally, he or she is not required to give consideration to Direction 65, "though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision".
22 The applicant completed and submitted the request for revocation form. In the section headed "Reasons for Revocation", the applicant referred, among other things, to the Ebola crisis in Sierra Leone. It was also stated that full reasons for revocation were set out in Holding Redlich's attached submissions dated 27 February 2015 (referred to below). In a personal details form, apparently submitted with the request for revocation, in response to the question "Do you have any concerns or fears about what would happen to you on return to your country of citizenship?", the applicant ticked the box for "Yes" and provided the following comments:
Country in War, Ebola Crisis, Sister kidnapped by rebels, Father killed by rebels - in fear I will share the same fate if I am returned or killed by Ebola.
23 By letter dated 27 February 2015, Holding Redlich provided submissions in support of revocation of the cancellation decision on behalf of the applicant. The letter was 10 pages in length plus seven annexures. The submissions set out in the letter sought to address each of the considerations referred to in Part C of Direction 65. In particular, the letter included the following submissions regarding the decision of the Parole Board:
On page 1, the letter stated: "[The applicant] was provided with a letter granting him parole on 19 January 2015. He was to be released on 3 February 2015 and was keenly anticipating being able to spend time with his young son and other family members, and start his life afresh. In the intervening period, on 30 January 2015, his visa was cancelled. We note that the cancellation of his visa has therefore caused his continued incarceration since 3 February 2015, even though he has been paroled."
On page 2, in connection with the protection of the Australian community from criminal or other serious conduct, the letter stated: "There is no evidence to suggest that [the applicant] is likely to cause future harm. In fact, the parole assessment authority's determination that he should be released from incarceration on 3 February 2015 demonstrates that he has been assessed as not posing a threat to the Australian community (see Annexure 1)." (Annexure 1 to Holding Redlich's letter was the letter from the Parole Board dated 19 January 2015.)
Also on page 2, in connection with the sentence imposed by the courts, the Holding Redlich letter stated: "Although [the applicant] was originally sentenced to four years and three months of imprisonment, it must be borne in mind that he was to be released on parole on 3 February 2015. His early release date demonstrates that the parole assessment board had determined that he no longer posed a threat to the Australian community."
On page 3, in connection with the likelihood of the non-citizen engaging in further criminal or other serious conduct, the letter stated: "There is no evidence to suggest that [the applicant] is in any way likely to cause future harm. In fact, the parole assessment authority's determination that he should be released from incarceration on 3 February 2015 demonstrates that he has been determined to not pose a threat to the Australian community."
On page 10, in the section headed "Conclusion", the letter referred, among other things, to the applicant's "rehabilitation as demonstrated by his being paroled".
24 The Holding Redlich letter included a number of other submissions in connection with the protection of the Australian community, but it is unnecessary to refer to these for present purposes. The letter also included submissions in relation to: the best interests of minor children in Australia; the expectations of the Australian community; and other considerations. In the section headed "Other considerations", Holding Redlich noted that "Section 14 [of Direction 65] sets out other considerations relevant to revocation requests". Holding Redlich noted that these considerations included, but were not limited to: "[i]nternational non-refoulement obligations"; and the "[s]trength, nature and duration of ties". (These two considerations correspond to the first two matters referred to in cl 14(1) of Direction 65.) Certain submissions were then set out. It is not altogether clear whether the submissions were intended to address both of those considerations or only the second. Among these submissions, it was contended that the removal of the applicant from Australia would cause his Australian-citizen mother "great distress". In this regard, it was submitted that "she holds grave fears for [the applicant's] well-being if he is forced to return to Sierra Leone".
25 On 28 April 2015, Holding Redlich sent a short, supplementary letter to the Department. It is not necessary to refer to the detail of this letter for present purposes.
26 On 19 January 2016, the Department wrote to the applicant giving notice that the Department had received certain information that might be taken into account when making the decision whether or not to revoke the cancellation decision. The identified information was: a National Police Certificate dated 20 May 2015; a copy of the transcript of the proceedings in the District Court on 2 October 2012; and a sentence calculation report from Queensland Corrective Services created on 23 January 2015.
27 On 29 August 2016, the Assistant Minister decided not to revoke the cancellation decision (the decision of the Assistant Minister being referred to in these reasons as the Decision). The page on which the Decision is recorded included a statement that "I have considered all relevant matters including an assessment of the character test as defined by s 501 of the Migration Act 1958, and all evidence before me provided by, on behalf of, or in relation to [the applicant] in connection with the possible revocation, under s 501CA(4), of the decision under s 501(3A) to cancel [the applicant's] … visa". The Assistant Minister's Decision was expressed in the following terms:
Mr COKER has made representations about revocation of the visa cancellation decision in accordance with the invitation. I am not satisfied that Mr COKER passes the character test (as defined by section 501). Nor am I satisfied that there is another reason why the original decision should be revoked. My reasons for this decision are set out in the attached Statement of Reasons.
28 Also on 29 August 2016, the Assistant Minister signed the Statement of Reasons. This document recorded, at [3], that the applicant had made representations through his legal representative, Holding Redlich, seeking revocation of the cancellation decision. It was stated that these representations were made within the period and in the manner set out in the regulations. The Statement of Reasons addressed, at [4]-[9], whether or not the Assistant Minister was satisfied that the applicant passed the character test (this being one of the bases for revocation, under s 501CA(4)(b)(i)). The Assistant Minister concluded that he was not satisfied that the applicant passed the character test. In the course of his consideration of this issue, the Assistant Minister stated (at [7]): "I have considered the representations made by [the applicant] and the documents he has submitted in support of his recommendations".
29 The Statement of Reasons then addressed whether or not the Assistant Minister was satisfied that there was another reason why the cancellation decision should be revoked (this being the other basis for revocation, under s 501CA(4)(b)(ii)). The Assistant Minister stated (at [11]): "In undertaking this task, I assessed all of the information set out in the attachments. In particular, I considered [the applicant's] representations and the documents he has submitted in support of his representations regarding why the original decision should be revoked". At [12], the Assistant Minister summarised the reasons that had been put forward by the applicant in support of his request for revocation. One of these was summarised as: "He will not reoffend".
30 In the course of considering the expectations of the Australian community, the Assistant Minister stated (at [18]): "I note that, as further discussed below, [the applicant] has not at present proven that he is rehabilitated".
31 Under the heading "International non-refoulement obligations", the Assistant Minister stated:
22. Mr COKER entered Australia as a dependant of his mother, who was granted a Woman at Risk visa. He has expressed concerns about returning to Sierra Leone, which is mainly addressed below. One of his claims is that Sierra Leone is 'a war zone country not stable in the least'. It is not clear if this is a claim that relates to the Refugees Convention and may give rise to international non-refoulement obligations. However Mr COKER is able to make a valid application for another visa. In particular I note that Mr COKER is not prevented by s501E of the Act from making an application for a Protection visa. Thus it is unnecessary to determine whether non-refoulement obligations are owed to Mr COKER for the purposes of this decision.
32 In connection with the extent of the impediments if the applicant were removed from Australia to Sierra Leone, the Assistant Minister's reasons included the following:
27. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr COKER will face if removed from Australia to his home country of Sierra Leone in establishing himself and maintaining basic living standards.
28. I note that Mr COKER is 24 years of age and has not submitted that he has any medical issues which would compromise his ability to work and support himself.
29. I have taken into consideration that Mr COKER states he does not have the skills or life experience required to live independently in Sierra Leone as he fled from there when he was three years of age. He states that he has no relatives or friends and no economic support available to him in Sierra Leone, and lacks the financial means to establish himself there.
30. I accept that general conditions in Sierra Leone would make it difficult to find employment and that Mr COKER, as someone who has not lived there since early childhood, would have difficulty in adjusting to life in Sierra Leone. I have given full consideration to the hardship Mr COKER may face upon returning to Sierra Leone.
33 The Assistant Minister addressed the protection of the Australian community at [32]-[42] of the Statement of Reasons. At [32], the Assistant Minister noted the applicant's claim that "he is rehabilitated". The Assistant Minister discussed the seriousness of the applicant's criminal offending at [33]-[37]. The Assistant Minister stated, at [38], that in considering whether the applicant represented an unacceptable risk of harm, he had "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". In making his assessment regarding the risk to the Australian community, the Assistant Minister stated (at [39]) that he had given regard to: "the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct"; and "the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending". The Statement of Reasons then included the following paragraphs:
40. In sentencing, the judge noted that when interviewed by police, Mr COKER had denied stabbing the victim and that there had been 'absolutely no expression of remorse' made by Mr COKER or on his behalf and his behaviour did not suggest any remorse. In this regard, I note that Mr COKER's current representations still do not express remorse or concern for the victim of his offence, and continue to claim that his stabbing of a 13 year old boy in the back was accidental and he was inadvertently involved in the whole incident. These statements, which are at odds with the findings of the court, indicate to me that Mr COKER still does not accept responsibility for his offending and add to my concern that he is not rehabilitated.
41. The available information indicates that Mr COKER has undertaken English lessons whilst in prison; however there is no evidence available to me that he has participated in treatment or completed violence-related rehabilitation programs. Also, I note that any progress that Mr COKER may have made towards rehabilitation and his ability to avoid further offending is yet to be tested in the community.
42 While acknowledging that Mr COKER has only one serious criminal offence recorded, the matters referred to above lead me to find that reoffending cannot be ruled out in his case. Should he do so, the potential consequences for a member or members of the Australian community could be very grave, in terms of physical harm. I find that the risk that Mr COKER represents must be considered very serious in nature.
34 The final section of the Statement of Reasons is the conclusion. In the course of this section, the Assistant Minister stated (at [46]): "I find that the Australian community could be exposed to great harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not have to accept a risk of further violent offending." The Assistant Minister concluded, at [50], that the applicant "represents an unacceptable risk of harm to the Australian community".
35 The Statement of Reasons did not refer to the Parole Board decision to release the applicant on parole.
36 The attachments to the Statement of Reasons included the letter from Holding Redlich dated 27 February 2015 and a copy of the letter dated 19 January 2015 from the Parole Board. (I note for completeness that, in the attachments to the Statement of Reasons, the first page of the two-page Parole Order (that was apparently enclosed with the Parole Board's letter) is missing. A complete copy of the Parole Order appears at AB103-104. I do not think anything turns on this, as the Parole Board's letter dated 19 January 2015 (AB64) - which was attached to the Statement of Reasons - made clear that the applicant had been granted parole.)
37 The material before the Court includes, through Ms Arduca's affidavit, a copy of a submission to the Assistant Minister (the Submission), and the attachments to that submission, in relation to the decision whether or not to revoke the cancellation decision. It is apparent that the Submission was considered by the Assistant Minister, as he signed it on 29 August 2016, indicating his decision or position with respect to various matters that had been raised for his consideration.
38 The Submission did not refer to the decision of the Parole Board to release the applicant on parole. Under the heading "Rehabilitation and mitigating circumstances", the Submission stated:
17. Mr COKER states that he will not reoffend and that the risk of removal from Australia has been a 'wake up call' for him (Attachment F). It has been submitted on his behalf that he has committed only one serious offence and that this occurred when he was a very young man and should be seen in the context of his traumatic early life, when he witnessed much violence and death, including to his own family members.
Attachment F, referred to in the above passage, was a handwritten letter from the applicant. The letter from Holding Redlich dated 27 February 2015 was attachment E3, and the Parole Board's letter was attachment E4. Neither was referred to in this section of the Submission.
39 The Submission also included the following statements under the heading "Other Relevant Information":
26. Mr COKER has not provided any evidence of rehabilitative training. He has been in custody since being convicted of the above offence.
27. Mr COKER's rehabilitation has not been tested in the community, as he has been held in immigration detention since his release from prison.
40 In connection with the impediments that the applicant would face if he were returned to Sierra Leone, the Submission stated (at [18]) that the applicant "is concerned that if he is returned to Sierra Leone, with a war and the Ebola crisis continuing, he will be killed by the rebels or the Ebola virus (Attachment G)". Attachment G was another handwritten letter from the applicant.