Federal Court. Can it be said that the risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application, as such an application may be refused? In other words, should Plaintiff M1 be distinguished?
In a character decision involving Direction 99, the Tribunal said:
112. Based on the applicant’s evidence, the Tribunal finds that the strength, nature and duration of the applicant’s ties to the Australian community are limited and not of a positive nature. As such, the Tribunal concludes that the applicant’s ties to Australia carries neutral weight.
Para 9.2 of Direction 99 provided:
9.2 Extent of impediments if removed
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
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.
The Federal Court (FCA) said:
58 By ground 2, the applicant contends that the Tribunal:
(a) failed to read, identify, understand and evaluate the applicant’s representations – and/or failed to consider the applicant’s clearly articulated arguments – that the cancellation decision should be revoked because:
(i) he faced a risk of physical and/or psychological harm in South Sudan; and/or
(ii) the risk of physical and/or psychological harm to the applicant constituted an impediment to removal pursuant to para 9.2 of Direction 99; or
(b) misconstrued or misapplied para 9.2 of Direction 99.
In relation to Ground 2, the FCA said:
84 In its reasons, the Tribunal accepted (at [130], somewhat reluctantly) that the applicant would be at risk of harm if removed to South Sudan, and concluded that this is a factor that weighs in favour of revocation of the cancellation decision. However, the Tribunal gave that consideration “less weight” for the reason that it is open for the applicant to make a protection visa application. That is not a logical, or lawful, basis upon which to discount the weight to be given to the risk of harm.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Does the term “neutral weight”, as used by the Tribunal, convey that the consideration weighs neither for nor against revocation of the cancellation of the visa, being the ordinary meaning of such term?
Question 2: Can it be said that a direction given under s 499(1) of the Migration Act 1958 (Cth) "provides no more than guidance on the exercise of discretionary powers and that directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter"?
Question 3: Can it be said that, while para 8.3(4)(a)(i) of Direction 99 "stipulates that “considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years”, read in context the stipulation should be understood as a direction concerning the relative weight of the consideration as opposed to its absolute weight"?
Question 4: Does the consideration described in para 8.3(4)(a)(i) of Direction 99 merely bear upon the weight to be given to the other ties described in para 8.3(4), meaning it is not a standalone consideration?
Question 5: Can it be said that the risk of harm to the applicant from violence and crime upon removal to South Sudan is not reduced by reason that the applicant may make a protection visa application, as such an application may be refused? In other words, should Plaintiff M1 be distinguished?
Question 6: Do the following findings by the Tribunal support a conclusion that the Tribunal took into account the applicant’s alcohol addiction when considering impediments to removal: "the applicant’s history of alcohol abuse and relapses was well documented in evidence before the Tribunal; it was a matter that was potentially relevant to numerous Direction 99 considerations; the Tribunal engaged in a lengthy discussion of the applicant’s history of alcohol abuse and relapses; and the Tribunal found, in the context of the risk of re-offending, that the applicant will not refrain from using alcohol in the future"?
Question 7: The Tribunal found that the weight to be given to the applicant’s ongoing detention was reduced because of the risk that the applicant poses to the community if he’s released from detention. Was that finding based on a misunderstanding of the lawful purposes of immigration detention, in that the protection of the Australian community from the risk of the applicant re-offending is not one of such lawful purposes?
The FCA answered those questions as follows: