Tribunal Set Aside the Cancellation of Protection Visa on Character Grounds
On July 2020, the Tribunal made a decision to set aside the cancellation of the applicant’s protection visa under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
Facts and Procedural History
In 2006, the applicant was accepted as a refugee.
In June 2006, the applicant arrived in Australia with his wife and two young children as the holder of a Class XB-202 Global Special Humanitarian visa. He was diagnosed with post-traumatic stress disorder (‘PTSD’), depression and anxiety since arriving in Australia.
On 17 November 2011, the applicant’s Class XB-202 Global Special Humanitarian visa was cancelled on character grounds.
On 12 March 2012, the applicant applied for a Class XA-866 Protection visa, and the visa was granted on 12 April 2013.
From 2008 to 2014, the applicant has a long criminal history, which is primarily associated with violent behaviour or domestic violence, either against his former wife or against other men with whom he believed she had an association.
On 27 April 2016, the Department issued a notice to the Applicant that his visa had been cancelled under section 501(3A) of the Act.
On 8 January 2019, the applicant applied to the Tribunal (differently constituted) for review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 28 March 2019.
On 28 March 2019, the applicant made an application for review of the Tribunal’s decision to the Federal Court.
On 23 August 2019, the Federal Court remitted the matter to the Tribunal for determination in accordance with law (CHJK v Minister for Home Affairs [2019] FCA 1330) which suggests that the Tribunal erred in failing to take into account the International Treaties Obligations Assessment.
Tribunal’s Reasoning for Setting Aside the Cancellation
The Tribunal noted that the applicant’s criminal behaviour is related to domestic violence offences which cannot be overlooked or downplayed as to their seriousness since such offences have long-term and serious consequences, particularly for women and children. Given his past patterns of behaviour, the Australian community’s tolerance for this risk of harm is lower because of the seriousness of the potential harm that the applicant may cause if he were to re-offend.
However, the Tribunal set aside the decision to cancel the visa for the following reasons:
It is well accepted that it is in the best interests of children to have a relationship with both their parents and that the applicant is wanting to engage in re-building this relationship, it would be contrary to the best interests of the three children if the applicant were to be removed from Australia.
Given the history of South Sudan and ongoing conflict within the country, it is highly unlikely the applicant could be forcibly sent there at any time in the foreseeable future. Further, the likelihood of a third country accepting the applicant also appears remote.
The applicant has already spent approximately three and a half years in immigration detention awaiting an outcome of his protection visa application (after his Global Special Humanitarian visa was cancelled) and legal appeals. This is disproportionate to the sentences imposed for his criminal behavior through the criminal justice system as the maximum sentence the applicant has received is an aggregate of 38 months’ imprisonment with a non-parole period of 25 months. Considering the applicant is now 52 years of age and it is now not impossible that he could die in immigration detention. Furthermore, it can reasonably be assumed that the longer he spends in detention the less chance there is of him easily transitioning to life outside detention in any community.
The Applicant suffers from several serious mental health issues. In particular, PTSD is known to be extremely debilitating and can be very difficult to treat, requiring long periods of medical intervention. There was no evidence of medical support, particularly mental health support, being available in South Sudan.
Our Analysis
The case is interesting as, on the one hand, there is significant weight in favour of non-revocation given the applicant’s long criminal history, most of it involving violence, particularly violence against women. On the other hand, the applicant faces indefinite detention having already served a jail sentence and a long period of detention. The Tribunal’s view is that even though the applicant has a criminal history, his impact on his victims and potential risk of reoffending cannot be underestimated. These factors are outweighed in this case by other factors, particularly the prospect of indefinite detention, given the age of the applicant, his background, the illnesses from which he suffers, and the sentences imposed on the applicant.
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