BBFD and Minister for Home Affairs (Migration)

[2019] AATA 3907

BBFD and Minister for Home Affairs (Migration) [2019] AATA 3907 (18 September 2019)

Division:GENERAL DIVISION

File Number:          2018/5365

Re:BBFD

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:18 September 2019

Place:Sydney

The Tribunal decides that:

1. The reviewable decision, being the decision of a delegate of the Minister for Home Affairs dated 7 September 2018 to refuse the applicant’s Protection (Class XA) visa, is set aside.

2. In substitution, it is decided that the application for a Protection (Class XA) visa be remitted to the Minister for reconsideration in accordance with section 65 of the Migration Act 1958 (Cth) with a direction that the Applicant is not to be refused the visa under section 501(1) of that Act.

   .............................[sgd]...........................

   Deputy President B W Rayment OAM QC

   CATCHWORDS

   MIGRATION – refusal of Protection (Class XA) visa – failure to pass the character test – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the applicant engaging in future criminal conduct – whether the applicant poses a risk of harm to the Australian community –  Direction No. 79 – primary considerations – protection of the Australian community – the best interests of minor children in Australia affected by the decision – expectations of the Australian community – other considerations – where applicant is owed non-refoulement obligations – decision under review set aside

   LEGISLATION

   Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 43

   Migration Act 1958 (Cth) ss 197C, 501

   CASES

   Azizi and Minister for Home Affairs [2018] AATA 2561
   BHKM and Minister for Immigration and Border Protection [2018] AATA 3
   Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD
   DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
   Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
   Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629
   FTYC and Minister for Immigration and Border Protection [2018] AATA 20
   Hospital Benefit Fund of Western Australia Inc v the Minister of Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225
   SYLN and Minister for Home Affairs [2018] AATA 4408 (2018); 163 ALD 186
   Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 224

   SECONDARY SOURCES

   Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA

   REASONS FOR DECISION

   Deputy President B W Rayment OAM QC

   18 September 2019

3. The applicant is a lady in her forties.  She has been held in immigration detention for four years.  She is detained at Villawood.

4. She was born in New Zealand and has applied for a protection visa. The Migration and Refugee Division of this Tribunal held that protection obligations are owed in respect of her, so that an important element of her protection visa application has already been decided in her favour.

5. The delegate’s decision was dated 7 September 2018. 

6. That delegate’s task was to examine s 501(6) of the Migration Act 1858 (Cth) (the Act) and decide which part of it he would examine factually, to determine whether the applicant passed the character test defined in the section, and if she did not, the delegate had to exercise the discretion in s 501 of the Act, consistently with the then current Ministerial Direction No. 65 and any other relevant discretionary considerations. The delegate decided that:

   (a)the applicant did not pass the character test defined in s 501(6) of the Migration Act 1958 because there was a risk she would engage in criminal conduct in Australia, so that s 501(6)(d) of the Act was engaged; the delegate described that risk as “low”;

   (b)when the delegate came to exercise discretion under s 501(1) of the Act, reference was made to Direction No. 65, then in force, to each of the mandatory considerations referred to in it, and the delegate decided that she presented an unacceptable risk to the Australian community and that the protection visa should be refused.

7. The applicant sought review in this Tribunal which was first heard last December. The applicant did not succeed.

8. The Federal Court allowed an appeal from this Tribunal’s decision, with the consent of the respondent Minister, and the matter was remitted to this Tribunal to be determined according to law, by the Tribunal differently constituted.

9. These are my reasons for decision in the remitted review:

10. This Tribunal has decided in other cases that the fact that non-refoulement obligations are owed in respect of an applicant is a powerful discretionary reason to exercise discretion to grant a protection visa. See BHKM and Minister for Immigration and Border Protection [2018] AATA 3, FTYC and Minister for Immigration and Border Protection [2018] AATA 20 (both of which preceded the delegate’s decision in this case) and SYLN and Minister for Home Affairs [2018] AATA 4408 (2018); 163 ALD 186.

11. When the matter came before the delegate, the Migration and Refugee Division of this Tribunal had decided that the applicant in this case was a person in respect of whom non-refoulement obligations were owed. The delegate treated himself as bound by that decision, which involved at least that he treated the decision as normative, and knew of no change in circumstances. That position has been adopted also by the Minister before me, so that it is not in contest that non-refoulement obligations are owed by Australia in respect of the applicant.

12. This is because the applicant fears that if she is returned to New Zealand, a gang will attempt to murder her. She proved that case to the satisfaction of a member of the Tribunal, and since it seems to me that the decision is affected by no error of fact or law, I treat it as normative.

13. The applicant has been in immigration detention for the last four years.  In that period she has on several occasions been attacked by other persons in detention and believes that those persons are in touch with the New Zealand gang and attacked her to pursue its objectives or to gain a bounty offered for her death. The attacks started in 2016 (as the Migration and Refugee Division found) and occurred again recently. These circumstances have made the applicant terrified to remain in detention, and very anxious to leave it.  In the past several years she has approached the Federal Court on appeal from various decisions of this Tribunal, each time in an attempt to be released from detention, and each time with success on the questions of law involved.

14. She has a criminal record but the courts have dealt with her without imposing any custodial sentence, except on one occasion in 2010 in Australia when she was sentenced to 28 days in prison.

15. This Tribunal’s decisions (unless affected by errors of fact or law) are normative both within the Tribunal and within the relevant department or agency (Azizi and Minister for Home Affairs [2018] AATA 2561 and authorities there referred to).

16. In SYLN it was also observed that the statements in the then relevant Direction No. 65 (statements which are repeated in the current Direction No. 79) to the effect that Australia will not remove a person to his or her country of origin if protection obligations were owed in respect of him or her meant that in the event of refusal of a protection visa he or she would face the prospect of indefinite detention have great significance. In SYLN it was said that, if indefinite detention were the result of refusal of a protection visa to a person in respect of whom non-refoulement obligations were owed, then that also would provide a powerful discretionary reason not to refuse the protection visa.

17. A member of the executive government (including delegates) and this Tribunal are subject to the dictates of good government.  For a member of the executive government (or this Tribunal standing in their shoes) to make a decision having the effect that a person would be subjected (without the order of a court) to indefinite or prolonged detention would be inconsistent with the dictates of good government. Such an order could only be authorised by another branch of government, that is, a court. Whether the Minister is in a different position may be a contestable legal question.

18. The overriding purpose of the Administrative Appeals Tribunal Act 1975 is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task: Smithers J in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD1 at [21].

19. A member of the executive, acting in accordance with the dictates of good government could not exercise discretion by making a decision which would put this country into breach of its treaty obligations, nor could he or she expose a person to indefinite or prolonged detention.  Those discretionary considerations are powerful ones, proper to be taken into account in any case where they become relevant.

20. If one puts to one side the prospect of indefinite detention, and considered only the legal consequences of s 197C of the Migration Act, which has been held in DMH16 v Minister for Immigration and Border Protection [2017] FCA 448 to require a person to be returned to his or her country of origin even though that would put Australia in breach of its international treaty obligations, a decision-maker would have to consider the importance of complying with the treaty obligations of this country. For Australia to fail to do such a thing would surely require a cabinet decision and not the decision of a public servant such as the delegate. A cabinet which so decided would presumably also decide to resile from the treaty in question.

21. Moreover, returning a person to their country of origin where their life might be at risk raises humanitarian considerations, which would militate strongly against the making of such a discretionary decision. Good government would ordinarily require humanitarian considerations to be taken into account in relation to discretionary questions. Direction No. 65 like its successor, Direction No. 79, makes it clear that the considerations which it makes mandatory do not limit a decision-maker so as to preclude other relevant considerations being taken into account.

22. It therefore seems to me that there are at least three reasons why good government required that the discretion conferred by s 501 of the Migration Act should have been exercised by the delegate in favour of the present applicant, assuming that the delegate was right that the applicant failed the character test:

    (a)Sending her back to New Zealand would put this country into breach of its international obligations;

    (b)The alternative of indefinite or prolonged detention would be open only to the criminal courts, not a member of the executive branch of government;

    (c)Strong humanitarian reasons would indicate another reason why the discretion should be exercised in the applicant’s favour.

23. It is the task of the Tribunal to review each of the decisions mentioned in [4] above. The applicant challenged each of those decisions before me. I consider first whether the first decision was correct. Section 501(6)(d)(i) is not satisfied unless, in the event that the applicant were allowed to remain in Australia, there is a risk that she would engage in criminal conduct in Australia.

24. That test was discussed by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 224. At [122]-[128] Her Honour drew attention to the relevant principles to be taken into account in construing the tests in s 501(6) of the Act.

25. At [129] Her Honour wrote:

    Each of the criteria set out in s 501(6) which may cause a person to fail the character test involve the protection of the Australian community. “Protection” is not a narrow concept and extends beyond preventing members of the Australian community from being threatened with, or the victims of, physical violence or conduct which is criminal under Australian law. It may involve, as s 501(6)(d)(iii) contemplates, ensuring that particular members of the Australian community are not vilified. It may also involve protection at a highly individual level: for example, if there is a risk a particular person in Australia would be harassed or stalked by a prospective visa applicant (s 501(6)(d)(ii)).

26. At [130] Her Honour wrote

    In relation to s 501(6)(d), a qualitative assessment of risk is an express part of the character test itself. Each of the items in s 501(6)(d) in that sense are identified by the Parliament as potential “harm” to the Australian community.

27. Thus, on the proper construction of s 501(6)(d)(i), it should be asked whether, if the applicant were released into the community, there is a risk that she would engage in criminal conduct. The purpose of that enquiry is to guard against harm to the Australian community. It may be doubted whether a risk of harmless criminal activity is within the sub-section, but it is not necessary so to decide.

28. It is relevant to consider the applicant’s history, and to take into account all of the circumstances of the applicant proved in evidence on the review. That is, all the facts for and against her, bearing on the question of risk that she would engage in criminal conduct in the community.

29. Some matters of background ought first to be noted. The applicant has a son of seven living in the Australian community. On the last day of the hearing, the Minister called her former partner, who cares for the child while the applicant remains in detention. The applicant’s former partner confirmed the evidence given to me by the applicant that he visits the detention centre with the boy once each fortnight, and remains at the detention centre with his son and the applicant for about two hours each time. The applicant and her son keep company and play together. He and the applicant have discussed the future if she is released from detention and they have agreed on joint custody of the child, if he finds himself satisfied that she stays sober. He is worried that she may drink to excess, but if she does not, he wishes his son to have a full and normal relationship with his mother. It is plain from the evidence before me that the applicant desires to be reunited with her young son and to participate in his upbringing. The son often speaks of his mother, whom he misses.

30. The Minister drew attention to Children’s Court proceedings which took place between the father of the child and the applicant. In those proceedings, which took place after the detention of the applicant, the parties were in significant dispute. Custody proceedings are often bitter and charged with emotion. The applicant’s former partner’s present attitude to the applicant is quite different to that revealed by the record in the Children’s Court. He does not think that the applicant will be other than a good mother to their son. That confirms the evidence given by the applicant before me. One of the great concerns of the applicant about her time in detention is that she cannot play a larger role in bringing up her son.

31. The Minister has also investigated the circumstances of her treatment of another son of the applicant who lives in New Zealand, and relations between the applicant and the father of that child and the father’s parents. The suggestion seems to be made that the applicant is likely not to properly care for her Australian son, by reason of what happened in New Zealand. The applicant denied many of the allegations which were put to her about those matters. I did not hear from the father of the child in New Zealand or the adult son. Criminal conduct was not apparently involved in the allegations put to her and I am not greatly assisted in the present review by events more than ten years ago in New Zealand.  I am in any event not assisted by reliable evidence about the events in question, such as whether the applicant was negligent in her care of her son when he apparently drank some nail polish remover, which appears not to have had any lasting impact on his health in any event. The applicant was taking recreational drugs at the time and the Minister put allegations to her, which she denied, that the substance was not nail polish remover but rather another substance.

32. The drug taking seems to have completely stopped. The father of her Australian child was asked by the Minister’s counsel whether he was concerned about drug taking by the applicant and he replied that he was concerned only by her alcohol consumption, and did not know her to take drugs. No reports of drug use in detention have been made by Serco.

33. The applicant has married while in detention a gentleman in employment and who is not suggested to be in other than good standing. The applicant and her husband met in the community before she was confined in detention and married after she was detained.  She desires to live with her husband in the community and wishes to do so as soon as she is released. His support will be valuable to her.

34. The applicant’s son and her husband give the applicant a strong motive never to be detained again.

35. The applicant both fears detention and detests it. She fears detention because of attacks upon her by other New Zealand nationals in the detention centre. She believes her life is at risk there. She detests detention.  Prior to the last four years, she had only once been incarcerated, and then for four weeks. Since then, she has taken every possible legal step to obtain her release. The circumstances of this review called for adjournments to be granted from time to time, either because the applicant did not attend hearings on various grounds, including a concern that restraints which the detention centre placed upon her were too painful during transport to the Tribunal, or for various other reasons, most recently because she approached the Federal Court seeking habeas corpus before she had a decision on this review. To some extent the review was delayed at the request of the Minister, so that enquiries could be made by his department. In order to make sure that the completion of the hearing was not delayed, she elected not to cause further delay in these proceedings by not calling character and other witnesses she had previously desired to call.  The Minister had signalled a desire to cross-examine all those witnesses. Counsel for the Minister put to the applicant in cross-examination that she would do anything to get out of detention.

36. The applicant is an intelligent lady. She fears that the Minister would return her to detention if she commits any criminal offence, and that has occurred twice in the past. The Minister has appeared before me by counsel instructed by the Australian Government Solicitor and her previous applications to the Tribunal have similarly been opposed by the Minister.

37. Those things must have suggested to the applicant that if she ever has another brush with the law, she will again face detention.

38. The applicant’s previous period at liberty in the Australian community of some five years in duration was not a period in which she committed any offence. I make that finding having rejected a submission to the contrary by the Minister, discussed below.

39. The applicant is now a person in her forties, and much of her previous offending was affected by immaturity. She has, I find, every incentive to avoid a future brush with the law.

40. The Minister refers to a history of offending in New Zealand summarised in a New Zealand police certificate stemming from 1994 to 1997, and during the period from 2000 to 2008. Many of those offences were driving offences. Some were offences of dishonesty. Some were drug-related offences. As I have said, none led to a sentence of imprisonment. Some led to a fine or community work, or what seems to be a suspended sentence. The applicant stresses that she accepts responsibility for those offences and is ashamed of them.

1. She fled to Australia in 2009 because she believed that a gang was pursuing her and trying to kill her. For that purpose, she purchased a false passport and used it to enter Australia. On arrival, she was in the community for a relatively short period of time.

2. In 2010 she offended in Australia. The offending was drug related. She was convicted of ‘furnishing a false name to member, possession of a dangerous drug (cannabis), possess schedule 2 substance commercial, possess thing to administer dangerous drug’.  She was sentenced to 28 days in prison for the possession of schedule 2 substance.

3. The applicant was held in a motel prior to being taken to a detention centre and left the motel in 2010 and lived in the community for five years.  During that period she committed no offences. It was during that period that her child was born.

4. The applicant has from time to time obtained qualifications for the purpose of working. She sold real estate for a time in New Zealand. She expresses a desire to make use of her Australian qualifications in photography if she is released.

5. What brought the applicant to the notice of the Minister, and led to her being put into immigration detention in 2015, was an incident in which she participated in 2015. Proceedings arising from that incident were dismissed by a magistrate in Queensland.

6. The applicant defended the charge and was brought from detention to answer the charge, and the charges were dismissed. The magistrate accepted that the Queensland police officers had no basis to arrest her and that she resisted an unlawful arrest.

7. Surprisingly, the Minister submitted before me that the applicant attempted to pervert the course of justice in the course of the proceedings before the magistrate. The matters put to the applicant were that she used a false name, being her birth name, and that she did not reveal that she was in detention.

8. The applicant came to the court from a detention centre and therefore could not conceal that she was in detention. The use of her birth name, given that she was in detention, could not have been designed to further any intention to deceive the Minister. Attempting to pervert the course of justice is an offence of intention and there is no evidence of any such intention.

9. The fact remains that the applicant’s last offending was in 2010, and that five years followed in which there was no offending.

10. Since 2015 the applicant has been the subject of Serco reports about her behaviour. No charges have been brought against her. The most serious incidents in which she has been involved appear to me to be the various attacks upon her, in which she suffered bodily injury. Charges have been brought against other detainees for the assaults upon the applicant, and so far as the evidence reveals, those charges are still pending.

11. As I have said, the applicant abhors detention and is very frustrated because it prevents her from being in the community, with her husband and with regular access to her seven year old son. Her conduct in detention indicates frustration and anger, which may well be explicable in large measure by reason of the nature and long period of detention itself.

12. Questions of fact, and evaluative questions, arise on this enquiry. If circumstances show that one can be confident that the applicant in question will not engage in criminal conduct in the future, then one will be unable to be satisfied that there is a risk that the applicant will do so. In some cases, that confidence might be arrived at because the person is law-abiding. In some cases, the confidence might be arrived at because the applicant fears incarceration or detention in the event he or she were to offend. The level of confidence required must be such that one would not be satisfied that there is a risk that the person will engage in criminal conduct in the future.

13. I say “not be satisfied” because no legal or de facto onus rests upon a visa applicant to negate the possibility that he or she might offend in the future. In this Tribunal and before the delegate, the decision-maker must reach the stage of being satisfied that there is a risk that the applicant will offend in the future. The section requires a decision-maker to concentrate upon the risk of future offending.

14. I am not satisfied that there is a risk if the applicant was allowed to remain in Australia, and was released into the community, that she would engage in criminal conduct. My reasons are in summary:

    (a)The applicant has shown herself to be a person who hates immigration detention, and as was put to her by the Minister’s counsel, will do anything to get out of it;  it follows that she would not do anything which might cause her to be detained again;

    (b)The applicant is frightened of remaining in detention, for similar reasons to those which have led to the finding of non-refoulement obligations being owed to her, and those fears would necessarily attach to the prospect of a return to detention;

    (c)The applicant believes that the immigration authorities will desire to put her in detention if she gives them grounds to cancel her visa, and that committing a criminal offence is likely to give them such grounds;

    (d)The applicant has a child of 7 years of age living in the Australian community, and she understandably desires to participate in his care; and will do so with the support of the father of the child;

    (e)The applicant has married an Australian citizen in good standing whilst in detention, and desires to take up married life with him in the community. The marriage will also enable her to take up gainful employment or engage in business, as she has in the past; and is likely to provide her with support as she lives in the community;

    (f)Although the applicant has offended in the past, and has once (in 2010) been imprisoned for 28 days, when the applicant was last at liberty in the Australian community, over the five years from 2010 to 2015, and she has committed no offences nor in the last four years, while in immigration detention;

    (g)The applicant is an intelligent person, now in her forties, more mature than she was at the time of her previous offending, and has very strong incentives not to offend, even if otherwise minded to do so.

15. The Minister submitted that the Tribunal ought also to find that the applicant fails the character test specified in s 501(6)(c) of the Act on grounds that formed no part of the reviewable decision. I invited submissions from the parties as to whether such a course was within the power of this review.

16. In Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629 the High Court emphasised the need in this Tribunal to decide, on review, the same questions as were before the decision-maker and no more. Kiefel CJ, Keane and Nettle JJ said at [15] (citations omitted, emphasis supplied):

    Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.

17. Similarly, in the same case, Bell, Gageler, Gordon and Edelman JJ said at [51] (citations omitted, emphasis supplied):

    That is because, except where altered by some other statute, which has not occurred here, the jurisdiction conferred on the AAT by ss 25 and 43 of the AAT Act, where application is made to it under an enactment, is to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review. The AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT's review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision. A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.

18. The primary decision-maker was required to address no more than he decided to address.

19. The passage from Frugtniet which I have set out in [55] cites several Federal Court decisions, including Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

20. In that case, a widow’s pension was cancelled by the Secretary because she was at the relevant date living with a man as his wife on a bona fide domestic basis although not legally married to him.  Davies J heard an appeal from a decision of this Tribunal which had concluded that the de facto relationship has subsequently come to an end, and the Tribunal recommended, while affirming the reviewable decision, that the widow apply again for the pension in her then current circumstances. Davies J referred to the authorities stating that the Tribunal should have regard to facts proved before it in making its decision. His honour held, however, that the function of the Tribunal was to reconsider the decision of the delegate and determine whether the decision to cancel the pension was at the time it was made a correct or preferable decision. The question was not whether the appellant/applicant was entitled to a pension at the time of the hearing before the Tribunal.

21. The other decision cited by Kiefel CJ, Keane and Nettle JJ for the passage quoted in [55] above was Hospital Benefit Fund of Western Australia Inc v the Minister of Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225. That was a decision of a Full Court constituted by Wilcox, Burchett and French JJ. In the course of the Court’s reasons for judgment, it was said at [23]: “It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision maker. The Tribunal is, however, obliged to address the same question as was before the primary decision maker. This distinction was spelled out in Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.

22. A question of characterisation arises about the delegate’s decision. When the applicant was given notice that consideration was being given to the refusal of her visa, she was informed that the Department of Home Affairs held information about her criminal history listed at the end of the notice, “which suggests that you may not pass the character test by virtue of s 501(6)(d) of the Act” and s 501(6)(d)(i) was set out.

23. Similarly the reviewable decision of the delegate states that he considered the test in s 501(6)(d)(i) and makes no reference to any other provision of s 501(6).

24. The statutory context is that a visa applicant has two chances: the Minister’s delegate may decide, on any ground, that the applicant does not pass the character test. If such a decision is made, there is a merits review in this Tribunal. If on review, the Tribunal elects to proceed on a different ground to determine whether the character test is passed, and decides that question adversely to the applicant, there is no merits review. This is not merely a matter of procedural fairness, which could be cured by proceedings in this Tribunal. The review rights, and the second chance which they afford to a visa applicant, are a significant aspect of the policy evinced by the statute.

25. Given that different factual questions arise under s 501(6)(c), and notwithstanding that in the event of an adverse finding under the test considered by the delegate the same consequences follow, that is, that discretion under s 501(1) is enlivened, I consider that it ought to be held that the request of the Minister that I consider s 501(6)(c) questions is not consistent with the passages from Frugtniet to which I have referred.

26. The Minister also submitted that I should treat the decision of Senior Member Griffin, to the effect that she failed the character test as normative, and resolve the present matter on the same basis. Senior Member Griffin QC decided that the applicant should not have a bridging visa pending the hearing of the present review. For that purpose he decided that she failed the character test. In making that decision, he had regard both to s 501(6)(d) and to s 501(6)(c). It is not apparent from the decision record that consideration was given to the Frugtniet decision. Nor is it apparent to me that he took into account the matters which are critical to the present decision. Apparently, in an effort to obtain an early decision of the bridging visa review, the applicant asked that that review be conducted on the papers. Thus Senior Member Griffin did not have the opportunity which I had to observe the applicant in the witness box, and to sum her up. He emphasised a character concern arising from the fact that the applicant had purported to sign in his name a letter from the father of the applicant’s Australian child, supportive of her. That father gave evidence before me on the Minister’s summons which did in fact support the applicant’s attempt to be released from detention. In those circumstances, it seems to me that the signing of the letter by the applicant goes more to questions of credit and good character than to a risk that she would engage in criminal conduct. Senior Member Griffin’s decision gives a detailed and correct account of the criminal proceedings taken against the applicant. For reasons I have given above, I respectfully decline to treat the decision of Senior Member Griffin as normative in relation to the issue of risk which I must consider in the light of the evidence before me.

27. It follows that the correct or preferable decision is that the applicant does not fail the character test under s 501(6)(d)(i), there being no other question properly before me.

28. I next consider the question of relief. I have the choice between making a decision in substitution for the decision set aside or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal, in accordance with s 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth).

29. I have decided to make a decision in substitution for the decision, for several reasons:

    (a)The applicant is at risk in detention of injury as a result of the very circumstances which led to the finding that non-refoulement obligations are owed in respect of her, and remission of the matter would keep her in a dangerous environment.

    (b)If the matter (assumed to mean the application for a protection visa) were remitted for reconsideration, and even if the delegate found the question arising under s 501(6)(c) adversely to the applicant, that would have the effect of enlivening discretion. The delegate, acting properly, would follow normative decisions of this Tribunal, in accordance with authorities referred to in Azizi and Minister for Home Affairs (Migration) [2018] AATA 2561. That should lead him or her not to refuse the protection visa on discretionary grounds. I would have done so for reasons indicated in [20] above. Direction 79 makes a non-exhaustive number of considerations mandatory for a decision-maker and some of those also favour the grant of the visa. However, the considerations I have mentioned in [20] above are all relevant and would outweigh any consideration tending the other way.

    (c)The decision which I have decided will be set aside was, as I have found, one which is incorrect and no occasion arises to refer it for reconsideration.

30. The matter must however be returned to the Minister for finalisation of the visa consideration made under s 65 of the Migration Act 1958, in respects other than those arising under s 501 of the Act.

31. Accordingly, the reviewable decision will be set aside.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

............................[sgd]..............................

Associate

Dated: 18 September 2019

Date(s) of hearing:	25 June 2019 26 June 2019 1 July 2019 2 July 2019 25 July 2019 3 September 2019 13 September 2019
Applicant:	In person
Counsel for the Respondent:	Ms R Francois
Solicitor for the Respondent:	Ms E Warner Knight, Australian Government Solicitor