LSCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3363 (18 October 2023)

Case Summary

The applicant fails to meet the character assessment criteria outlined in section 501(6)(a) due to his imprisonment for a term of 12 months or longer, resulting in a ‘substantial criminal record’ under section 501(7). Consequently, he cannot rely on section 501CA(4)(b)(i) to have his mandatory visa cancellation reversed.

Section 501CA(4)(b)(ii) obligates the Tribunal to evaluate factors both in favor and against revoking a mandatory cancellation decision to determine if ‘another reason’ exists for such a revocation. This assessment is based on the representations provided by the applicant, which the Tribunal is responsible for reading, comprehending, and assessing. Deciding whether ‘another reason’ exists may entail necessary fact-finding, predictive elements, and characterizing the applicant’s past offenses.

The key issue before the Tribunal is whether there is indeed ‘another reason’ to overturn the cancellation decision, considering the principles and factors outlined in Direction 99. The applicant contends that he is a refugee, faces persecution if deported to his home country, and confronts indefinite detention, along with the prospect of permanent separation from his Australian citizen wife.

Background

The applicant was born in June 1996 in Pakistan, after his parents fled from Afghanistan to escape the violence endured by Hazara Shias. His childhood was marked by trauma and violence, including the killing of his father and brother in separate attacks. The family suffered considerable hardship as a result.

To escape Pakistan, the applicant’s family engaged people smugglers, leading him to arrive in Australia as an unauthorized maritime arrival in 2013. He spent time on Christmas Island and in Darwin detention centers before being released into the Australian community in early 2015. In 2018, he was granted a Safe Haven Enterprise Visa.

The applicant married his Australian citizen wife in December 2021. Subsequently, he was convicted in May 2022 of rape and two counts of sexual assault, with these offenses occurring in March 2019. He received a seven-year prison sentence, and an appeal was scheduled for November 2023. In September 2022, he was convicted on guilty pleas for four charges, including contravening bail conditions and stalking, based on events from February 2022. The applicant has been in custody since March 2022.

Consideration

Protection of the Australian Community

When evaluating the protection of the Australian community, the Tribunal must consider the government’s commitment to safeguarding the community from harm resulting from criminal activities. Australia extends the privilege of entry to non-citizens with the expectation that they will adhere to the law, respect essential institutions, and not pose a threat to individuals or the community. The Tribunal assesses the nature and seriousness of the non-citizen’s conduct to date, as well as the risk to the Australian community if further offenses or significant misconduct were to occur.

The Nature and Seriousness of the Applicant’s Conduct

The applicant’s criminal record includes a seven-year sentence for rape and sexual assault and a 30-day sentence for various offenses, including stalking and violating bail conditions. The most severe crimes took place on the night of March 23, 2019. While the applicant maintains his innocence and is appealing the convictions, the sentencing remarks describe the rape as a serious crime involving violence and severe psychological and social consequences for the victim. The applicant’s stalking and bail violations, while less serious, are also taken into account.

The Risk of Further Offenses

The assessment of the risk posed by the applicant if he engages in similar criminal behavior is crucial. The nature of rape and its effects on victims is considered to be of great seriousness. The applicant relies on a statement from the sentencing judge and a psychologist’s opinion, which suggests a low to moderate risk of reoffending. Factors such as his marriage, support from friends and family, and plans for reintegration into society upon release are considered in his favor. The applicant’s stable and supportive environment is viewed as a mitigating factor. However, his lack of specific rehabilitative programs for sexual offending, coupled with ongoing anxiety and depression, raises concerns. The risk of reoffending is deemed low to moderate but unacceptable given the severity of the potential harm.

Conclusion on Protection of the Australian Community

The primary consideration in safeguarding the Australian community is weighed against the applicant’s connections to Australia, the impediments he would face if deported, the potential harm if removed, and the prospect of indefinite detention. While the applicant has made commendable contributions to the community and displayed positive attributes, his serious criminal offenses, particularly rape, outweigh countervailing factors. Even though the risk of reoffending is low to moderate, it is deemed unacceptable in light of the grave nature of the crime. The protection and expectations of the Australian community take precedence.

Best Interests of Minor Children

This factor is neutral as the applicant has no children of his own, and there are no children affected by the decision.

Expectations of the Australian Community

The Australian community expects non-citizens to adhere to Australian laws while in the country. The applicant’s violation of these laws, especially his serious criminal conduct, is taken into account. Although he has contributed positively to the community for a limited period, the seriousness of his offenses and the potential for further harm outweigh the positive aspects.

Other Considerations

The Tribunal must also consider other factors listed in Direction 99 where relevant.

Legal Consequences of Decision

The applicant holds protection obligations, and deportation to Pakistan would breach non-refoulement obligations. Consequently, he is likely to remain in immigration detention for an extended period. The psychological and physical effects of indefinite detention are considered a significant factor in favor of revoking the cancellation decision.

Extent of Impediments if Removed

The applicant’s health, especially his mental health, would be severely affected if returned to Pakistan, in addition to the risk of harm due to his ethnicity and religion. However, the protection finding minimizes the likelihood of deportation to Pakistan, so this factor is given minimal weight.

Impact on Victims

No evidence regarding the impact on victims is presented.

Impact on Australian Business Interests

There is no evidence of impact on Australian business interests.

Conclusion on Revoking the Cancellation Decision

In evaluating the factors, the Tribunal conducts a fine balancing act. The primary considerations of community protection and expectations weigh against revoking the cancellation decision. Countervailing factors include the applicant’s ties to Australia, potential impediments upon removal, risk of harm, and indefinite detention. Despite the applicant’s positive attributes and contributions, his serious criminal offenses, particularly rape, are considered the paramount factor. Even a low to moderate risk of reoffending is deemed unacceptable given the seriousness of the crime. The protection and expectations of the Australian community take precedence in this decision.

Written by Ross Ahmadzai

27 Oct, 2023

You may also be interested in…

0 Comments

Submit a Comment

Your email address will not be published. Required fields are marked *