Tribunal's decision record
28 The Tribunal stated that it had considered all of the evidence before it: DR[11]. It went on to say at DR[12]:
The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant's case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
29 The Tribunal noted the terms of ss 501(6)(a) and 501(7)(c) of the Migration Act at DR[14]-[15] and set out a summary of DCR19's "Offending history" at DR[18]. The Tribunal concluded that DCR19 has a "substantial criminal record for the purposes of s 501(6)(a) when read with s 501(7)(c), having been "sentenced to a term of imprisonment of more than 12 months on multiple occasions" and it was therefore satisfied that he did not pass the "character test": DR[19]-[20].
30 The Tribunal then turned to consider whether there was "another reason" why the cancellation decision should be revoked. It noted that it must comply with any Directions made by the Minister under s 499 of the Migration Act and that in this case, Direction 79 applies: DR[21]-[22]. The Tribunal noted that the considerations relevant to deciding whether to revoke a cancellation decision are set out in Part C of Direction 79 and they involve three primary considerations and "other" considerations. The "other considerations include "international non-refoulement obligations". It also noted the direction given in cl 8(3) to (5) concerning the weight to be given to "primary" and "secondary" considerations and what Colvin J said in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (Suleiman) concerning a similar direction in Direction 65, which Direction 79 replaced. The Tribunal then set out the principles and framework under which the decision should be made in accordance with cl 6.3 of Direction 79: DR[23]-[31].
31 The Tribunal summarised the evidence of witnesses at DR[32]-[103]. The Tribunal summarised and considered DCR19's evidence, his visa history and aspects of his offending history at DR[33]-[98]. The Tribunal set out the written evidence given to the Tribunal by DCR19's ex-wife and daughter referred to above and noted that their evidence given at the hearing was largely consistent with their written evidence: DR[99]-[103].
32 The Tribunal considered "primary consideration A", protection of the Australian community from criminal and other serious conduct at DR[104]-[172]. The Tribunal found (at DR[132]-[135]) that DCR19's conduct fell into four categories which were referred to as:
(1) "violent" offences, including assault occasioning actual bodily harm inflicted on DCR19's ex-wife in 2002, grabbing a fellow in-mate by the neck in 2012 for which he was penalised with one day in the cells, and an incident in immigration detention in 2018 when he threw punches at a fellow detainee, hit him and accidentally struck a detention officer;
(2) "scam" offences, including the offence of shoplifting in 2003 and offences of goods in possession suspected of being stolen for which he was convicted in 2006, 2010, 2013 and 2017;
(3) "dishonesty" offences, relating to DCR19 providing false identification documents to police officers and lying to the police about holding a driver's licence, the amount of time he had been in Australia and his identity; and
(4) "traffic" offences, consisting of driving without a licence, having never been licensed to drive and driving an unregistered vehicle.
33 The Tribunal concluded that the "violent" and "scam" offences were particularly serious. DCR19's conduct involved some violence and crimes of dishonesty repeated over a number of years. There was a "high likelihood" that he would engage in crime similar to his dishonesty and traffic offences and a "real risk" that he would engage in violent conduct and scam activity if he were allowed to remain in Australia and this would result in physical, financial and emotional harm to members of the Australian community. The Tribunal concluded that this "weighed heavily" against revocation of the cancellation decision and the Tribunal attributed "significant weight" to it: DR[168]-[172].
34 The Tribunal considered "primary consideration B", the best interests of minor children in Australia at DR[173]-[196]. The Tribunal accepted that DCR19 maintains a close relationship with his four children in Australia and that separation would have a severe emotional impact on them. After stating that it had considered the best interests of DCR19's children both individually and cumulatively, the Tribunal concluded that it was in their best interests that the cancellation decision be revoked and this "weighed heavily" in favour of revoking the cancellation decision. The Tribunal attributed "significant weight" to this consideration: DR[194]-[196].
35 The Tribunal considered "primary consideration C", the expectations of the Australian community at DR[197]-[217]. The Tribunal concluded that given the serious nature of much of DCR19's offending, that there was a real risk that he would re-offend, and notwithstanding the negative impacts on his children and the long time he had spent in Australia, the Australian community would consider that the risk of future harm to the community is unacceptable and the Tribunal should not revoke the cancellation decision. The Tribunal found that this consideration weighs against revocation and it placed "significant weight" on this consideration: DR[216]-[217].
36 At DR[218], the Tribunal noted five "other considerations" listed in cl 14(1) of Direction 79, and stated that those "other considerations" were not exhaustive.
37 The Tribunal considered "international non-refoulement obligations" at DR[219]-[290]. After referring to case law regarding whether the Minister is obliged to consider protection claims in the context of a decision under s 501CA(4), the Tribunal concluded (at DR[251]) that it must make an assessment of the risk that non-revocation would breach Australia's non-refoulement obligations and weigh any such risk with other considerations in determining whether there is another reason why the cancellation decision should be revoked.
38 The parties' submissions draw attention to most of the paragraphs of the Tribunal's consideration of "international non-refoulement obligations" from DR[263]-[290]. Accordingly, it is appropriate to set those paragraphs out in full:
263. The Tribunal has very little evidence before it to make a thorough assessment of the Applicant's claims. That state of affairs was compounded by the fact that sections 500(6H) and 500(6J) of the Act prevented the Tribunal from having regard to evidence sought to be adduced at the hearing which had not been given to the Respondent two business days before the hearing. However, in accordance with the High Court's decision in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal.
264. The Tribunal considers that it is very likely that he will lodge a Protection visa application. Indeed, the Applicant told the Tribunal that if he was unsuccessful in the present matter that he would lodge a Protection visa application. Once that application is lodged, Direction No 75 ensures that his claims to be a refugee or to fall within the complementary protection regime will be considered.
265. In this case, the Tribunal considers that there is only a very remote possibility Australia will breach any non-refoulement obligations owed in respect of the Applicant. It appears from the limited information before the Tribunal that the Applicant's refugee claims are particularly weak.
266. The Applicant claims to fear persecution in the Congo from Joseph Kabila and his government because he was previously married to a woman whose brother was a General who fought against the Kabila government in the late 1990s to early 2000s. The Applicant claimed that the persecution that he feared consisted of "serious intimidation and harassment."
267. The day before the hearing the Applicant filed written submissions. One of those submissions was that it was unnecessary for the Tribunal to determine whether Australia owed international non-refoulement obligations in respect of the Applicant as the Applicant had been granted a Subclass 785 Protection visa on two separate occasions, and as such, had already been found to be a refugee. Therefore, it was submitted by the Applicant the Tribunal must proceed on the basis that the Applicant is a person in respect of whom Australia has international non-refoulement obligations and that this "fact" presented another reason why the decision to cancel the Applicant's visa should be revoked.
268. The Applicant argued that lodging a Protection visa application would be an exercise in futility. That was because, as the Applicant has a substantial criminal record and has been sentenced to imprisonment for a period of 3 years and 3 months, it was almost inevitable that the Applicant would be found to be a danger to the Australian community and thus not meet the criteria for the grant of a Protection visa in sections 36(1C) and 36(2C) of the Act. The Applicant argued that it would be incongruous and inconsistent in circumstances where the Minister had cancelled the Applicant's visa owing to the threat he presented to the community and had refused to revoke that decision on the same basis, to expect the Minister to find that the Applicant did not present a danger to the community in a future assessment of sections 36(1C), 36(2) of the Act. For the same reason the Applicant argued that the Tribunal could not rely on the Minister exercising a non-compellable discretion which was preconditioned on the Minister finding that it would be in the public interest to do so, in circumstances where the Minister had made multiple previous findings that the Applicant represented a danger to the community. In any event, the Applicant argued that it was purely speculative to consider whether the Minister may exercise a discretion at some point in the future.
269. The Applicant argued that, because it had already been determined that the Applicant was a person in respect of whom Australia owed protection obligations, but it was all but unavoidable that he would be refused a Protection visa by failing to meet section 36(1C) of the Act, the most likely outcome for the Applicant would be indefinite detention. The Applicant conceded that indefinite detention would not place Australia in breach of its international non-refoulement obligations. Rather, the Applicant indicated that the likely indefinite detention of the Applicant should be considered as an "other consideration" which weighed heavily in favour of revocation of the cancellation decision and presented another reason why the cancellation decision should be revoked.
270. The Respondent also filed written submissions in relation to Australia's non-refoulement obligations the day before the hearing. In his submissions the Respondent argued that, while the Applicant had been granted Protection visas previously, the Government had never determined that the Applicant was a person in respect of whom Australia had international non-refoulement obligations. That is because the Applicant was granted a Protection visa on two occasions, not because he was found to have a well-founded fear of persecution in the Congo, but rather because he met the alternative criteria for the grant of a Protection visa, that he was a member of the family unit of his wife who had been found to be a refugee. The Tribunal accepts this submission.
271. However, that is not to say that the Applicant is not someone in respect of whom Australia owes non-refoulement obligations, only that Australia has yet to determine whether the Applicant is a person in respect of whom Australia owes non-refoulement obligations. The parties both asserted, and the Tribunal accepts, that the Applicant is not barred from applying for a Protection visa. Therefore, there is no legal impediment on the Applicant applying for a Protection visa. As mentioned previously, in response to a question by the Tribunal, the Applicant indicated that if he were unsuccessful in the present proceedings that he would lodge a Protection visa application.
272. The Respondent argued that it was by no means certain that the Applicant would be refused a Protection visa. He argued that if the Applicant was granted a Protection visa he would remain in Australia. He argued that any future decision as to whether the Applicant met the criteria for Protection visa could be informed by very different evidence, including evidence of rehabilitation, from the evidence before the Tribunal at present. The Respondent argued that if the Applicant did not meet the criteria in section 36(2)(a) or section 36(2)(aa) of the Act he would not be a person in respect of whom Australia owed protection obligations and no such obligations would arise. The Respondent submitted that if the Applicant were to meet the criteria in section 36(2)(a) or section 36(2)(aa) of the Act but did not meet other character related criteria, it was possible for the Minister to grant the Applicant a visa under section 195A of the Act. The Respondent argued that, as a matter of law, the Applicant was incorrect in asserting that the Applicant would be held indefinitely in immigration detention if he were found to be a person in respect of whom Australia owed non-refoulement obligations but he was refused a Protection visa. That is because section 197C of the Act, when read with section 198 of the Act, mandates removal of an Applicant from Australia as soon as reasonably practicable regardless of any international non-refoulement obligations.
273. The Tribunal is not satisfied that the Applicant has any subjective fear of persecution in the Congo. The Applicant, in his response to the cancellation of his visa, did not mention anything about fearing persecution in the Congo.
274. In the Personal Circumstances Form provided to the Department in response to the cancellation decision, the Applicant provided information about his children, the mothers of his children, the relationship he had with his children, the effect of cancellation on his children, his mother and siblings in the Congo, his criminal history and risk of reoffending, his employment history in Australia and his medical ailments. However, the Applicant did not raise any fear of harm in the Congo if he had to return there despite specific questions in the form inviting such claims.
275. In the Personal Circumstances Form, there was a question which asked "Do you have any concerns or fears about what would happen to you on return to your country of citizenship?" The Applicant did not provide an answer to that question. The form also contained the question "Are there any other problems you would face if you have to return to your country of citizenship?" Again the Applicant did not provide an answer to that question. The form contained the question "Please outline any other information you would like the Minister or delegate to consider when making their decision." The Applicant did not provide an answer to that question.
276. In addition, the Applicant never made any of his own claims to fear persecution in the applications for the first two Protection visas which he was granted. Further, the Applicant gave evidence during the hearing that when his migration agent applied for a Protection visa for him in 2008, he had no idea that he was applying for a Protection visa.
277. The Applicant only raised the claim that he feared persecution in the Congo once his solicitor, Mr Joel, became involved with the application before the Tribunal and after the Applicant had received the Respondent's written contentions. The fact that these claims were only raised a week prior to the hearing, and after receiving the Respondent's contention that the Applicant had not raised no [sic] fears of returning to the Congo and that "Subject to claims being raised, the Tribunal does not need to engage with the question of non-refoulement", supports the view that the Applicant does not have a subjective fear of persecution in the Congo.
278. While a subjective fear is necessary for the Applicant to meet the criterion for a Protection visa in section 36(2)(a) of the Act, it is not necessary for the Applicant to have a subjective fear of harm in order to meet the criterion in section 36(2)(aa) of the Act.
279. In this case, for the purposes of both section 36(2)(a) or section 36(2)(aa), the Tribunal does not consider that there is a real chance that the Applicant will face serious harm or a real risk that the Applicant will suffer significant harm if he were to return to the Congo.
280. The Applicant has never suffered harm or persecution in the past when he was living in the Congo.
281. The Applicant told the Tribunal that in Africa, people looking to harm an adversary would also seek to harm all members of the adversary's family. He said that he would be harmed on this basis as he was the husband of his wife who was the sister of a man who had fought against the Kabila government. The Applicant indicated that, because he was married to a member of the family of a man who had fought against the Kabila government, he would be considered to be a supporter of that man and his family. However, the Applicant gave evidence that neither his mother nor any of his five siblings who remain in the Congo have ever been harmed or threatened as a result of their association with the Applicant or his wife.
282. In addition, the Applicant has been separated from his wife since 2005. While it is true that the alleged persecutors in the Congo may not know this, the Applicant has been away from the Congo for some 16 years and does not share a surname with his wife or anyone in his wife's family. In these circumstances it appears unlikely that any potential persecutors would remember or recognise the Applicant or want to harm him on the basis that he was married to a family member of the family of someone who opposed the government 16 years ago.
283. In addition, although in his written material the Applicant had indicated that Joseph Kabila was still in power in the Congo, at the hearing he admitted that Joseph Kabila and his party were no longer in power in the Congo and that Tshisekedi was the current president of the Congo.
284. There is no current evidence before the Tribunal that anyone in the Congo is currently seeking to harm or threaten the Applicant.
285. Further, although Tribunal appreciates that a subjective fear of harm is not necessary for the purposes of determining that a person falls within the complementary protection regime, the Tribunal considers that the Applicant's lack of subjective fear of harm in the Congo is a matter which can be considered in determining whether there is an objective real chance that the Applicant will face serious harm or a real risk that the Applicant will face significant harm if returned to the Congo. The Tribunal notes that not only did the Applicant not raise any fears of harm in the Congo before this issue was raised by the Respondent in these proceedings, neither did his ex-wife. The Applicant [sic] ex-wife provided a statement to the Tribunal dated 5 April 2019. That statement focuses almost entirely on the relationship between the Applicant and their daughter and the potential effect on their daughter if the Applicant were to be removed from Australia. There is nothing in that statement which mentions any harm that the Applicant may suffer at the hands of others if he were to return to the Congo.
286. It was only after the Respondent had indicated that the Applicant had not to [sic] claimed to fear harm in the Congo, and the day after Mr Joel had filed written contentions on behalf of the Applicant, that on 26 April 2019 the Applicant's ex-wife claimed that if the Applicant returned to the Congo "he faces a continuing, serious threat, as the current government of DRC will not hesitate to eliminate any opposition." The Tribunal considers that the Applicant's wife's failure to mention any harm to the Applicant should he return to the Congo in her first letter, and that she only raised this prospect after the Respondent indicated no such claim had been made, supports the view that the Applicant's ex-wife does not consider that the Applicant will suffer harm if he returned to the Congo. That she has belatedly made this claim is understandable given that her daughter has a close relationship with her father and desperately wishes for him to remain in Australia. However, the Tribunal considers that its findings that the Applicant and his ex-wife do not consider that the Applicant will suffer harm if he returned to the Congo, supports the Tribunal's conclusion that there is no real chance that the Applicant will suffer serious harm if returned to the Congo and there is no real risk that the Applicant will suffer significant harm if returned to the Congo.
287. Thus, the Tribunal considers it likely that the Applicant will not be found to meet the criteria for a Protection visa in either section 36(2)(a) or section 36(2)(aa) of the Act as being a person in respect of whom Australia owes protection obligations, and that he will be refused a Protection visa on that basis. If this is correct, the removal of the Applicant from Australia will not result in any breach of Australia's international non-refoulement obligations.
288. However, the Applicant's claims for a Protection visa will ultimately be decided by a decision maker once that application is made. That decision maker will not be bound in any way by the findings that I have made in relation to the consideration of Australia's international non-refoulement obligations for the purpose of exercising the discretion under section 501CA of the Act.
289. In this case, the Tribunal considers that there is only a very remote possibility that Australia will breach any non-refoulement obligations owed in respect of the Applicant. Although the Tribunal has found that there is only a very remote possibility the non-revocation of the cancellation of the Applicant's visa may result in Australia breaching its international non-refinement obligations, for the reasons discussed above, that outcome is possible.
290. The Tribunal gives this consideration slight weight in favour of revocation.
39 The Tribunal found that, other than the strong ties to his children, DCR19 did not have particularly strong ties to Australia, notwithstanding the significant time he had lived in the country. The Tribunal placed "low weight" on this factor: DR[294]. The Tribunal placed no weight on the considerations of "impact on Australian business" and "impact on victims", in the first instance because neither party argued that the consideration was relevant and in the second instance because there was no evidence going to that factor: DR[295], [297].
40 In relation to the consideration of the factors "extent of impediments if removed" and "hardship and harm to the applicant", the Tribunal found that DCR19 would face difficulty in re-establishing himself in the Congo, that he may find it difficult to obtain adequate medical treatment for his diabetes and depression and non-revocation of the cancellation decision would have a significant negative effect on him. Those matters favoured revocation of the cancellation decision and the Tribunal attributed "significant weight" to them: DR[306]-[312].
41 After considering all of those matters, the Tribunal concluded that there was not "another reason" to revoke the cancellation decision and affirmed the delegate's decision. The Tribunal summarised its findings at DR[309]-[316] and concluded as follows at DR[317]-[320]:
317. In this case the Tribunal considers that there is a high likelihood that the Applicant will reoffend in Australia. The questions which remain, and which I have attempted to address, appear to be when that offending will take place and how serious that offending will be. The Applicant has been given multiple opportunities to reform his behaviour and has failed to do so. The Applicant has a problem with acting in an honest way and has lied repeatedly to authorities in Australia. He has sought to dispossess people of their property. Finally he has shown that he has some propensity for violence. The Applicant's dishonesty and propensity for violence have been demonstrated again quite recently. In these circumstances the Tribunal considers that the primary considerations of the protection and expectations of the Australian community weigh heavily against setting aside the decision not to revoke the cancellation of the Applicants [sic] visa. However, this is a difficult decision because the Applicant has four Australian children who will be devastated by the departure of their father. Their interests clearly weigh in favour of revoking the cancellation decision. In addition, the Applicant will return to a poor, developing country where he is likely to suffer hardship including the possibility of receiving inadequate medical treatment, and will likely find difficulties in re-establishing himself there. These matters also weigh heavily in the Applicant's favour.
318. After considering all of the relevant considerations in this matter and the weight that I have attributed to them, informed by the principles in paragraph 6.3 of the Direction, I have decided that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh all other considerations in the Applicant's favour. In all the circumstances in this case, the Tribunal finds that the risk of future harm from the Applicant is unacceptable.
319. The Tribunal has found that the Applicant does not pass the character test and that there is not another reason why the cancellation decision should be revoked.
320. Therefore, the Tribunal finds that the Minister's delegate's decision, to refuse to revoke the decision to cancel the Applicant's visa, is the correct decision.